# United States Institute of Peace v. Jackson

> District Court, District of Columbia · May 19, 2025

URL: https://www.frixlaw.com/law-library/cases/11053171

## Case

- **Court:** District Court, District of Columbia
- **Decided:** May 19, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Beryl A. Howell
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11053171

## How later opinions describe it (automated extraction)

- holding that Myers held that Congress could not require advice and consent of the Senate as a prerequisite to presidential removal of an Executive branch official
- describing as “typical[] executive activity” “administer[ing] federal statues, prosecut[ing] offenses, [and] promulgat[ing] rules and regulations”
- holding that a statute requiring advice and consent of the Senate to remove postmaster general was unconstitutional

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES INSTITUTE OF PEACE,
et al.,

Plaintiffs, Civil Action No. 25-cv-804 (BAH)

v. Judge Beryl A. Howell

KENNETH JACKSON, in his official
capacity, et al.,

Defendants.

MEMORANDUM OPINION

The U.S. Institute of Peace (“USIP” or “the Institute”) was created by Congress 40 years

ago in a statute signed by President Ronald Reagan. By design, USIP was established by the two

political branches to advance a safer, more peaceful world with the specific tasks of conducting

research, providing training on peacemaking techniques, and promoting peaceful conflict

resolution abroad—without formally involving the U.S. government in foreign disputes. To

ensure the independence of the Institute, Congress stated this intent explicitly in the organic

statute, which declares USIP’s status as an “independent nonprofit corporation,” 22 U.S.C.

§ 4603(b), and imposed certain prerequisites for the exercise of presidential power to remove

USIP’s board members, id. § 4605(f). Since then, Congress has endorsed USIP’s important

work by continuing to fund the Institute through appropriations bills signed by seven different

Presidents from both major political parties, including the current President during his first term

in office.

In a drastic and abrupt change of course, within the first month of his second term,

President Trump unilaterally decided that USIP is “unnecessary,” issuing Executive Order 14217

(“EO 14217”) § 1, 90 Fed. Reg. 10577, 10577 (Feb. 19, 2025), to this effect, and then his
1
Administration rushed through actions, including removal of Board members, to reach the

professed goal of reducing all of USIP’s operations and personnel to the bare minimum to

perform only mandated statutory tasks, while ignoring the broader statutory goals set out for this

organization to fulfill. These unilateral actions were taken without asking Congress to cease or

reprogram appropriations or by recommending that Congress enact a new law to dissolve or

reduce the Institute or transfer its tasks to another entity, despite the President’s constitutional

duties either to “take care” of “faithfully execut[ing]” the laws, U.S. CONST. art. II, § 3, cl. 4, or

to “recommend to [Congress’s] Consideration such Measures as he shall judge necessary and

expedient,” id., cl. 1.

Instead, the current Administration decided to effectuate the President’s Executive Order

14217 through blunt force, backed up by law enforcement officers from three separate local and

federal agencies. The Administration removed the Institute’s leadership, including plaintiff

Board members and its president in contravention of statutory limitations, and had personnel

from a newly created federal office, called the Department of Government Efficiency (“DOGE”),

forcibly take over the Institute’s headquarters on March 17, 2025. With a newly installed USIP

president, the Administration then handed off USIP’s property for no consideration and abruptly

terminated nearly all of its staff and activities around the world. See Hearing on Cross-Mots. for

Summ. J. Tr. (“XMSJ Hr’g”). at 13:4-15:6 (5/14/25), ECF No. 38 (plaintiffs’ counsel

representing that only four employees are left at USIP’s headquarters and only “a handful”

overseas, and that “zero” programmatic activities are occurring at USIP); id. at 59:14-60:17

(defendants’ counsel representing that only five employees are left and that “the Institute is

currently in the operational posture of being at or reducing to its statutory minimum”).

2
The question before this Court is whether these unilateral actions by the President and his

Administration are legal under duly enacted statutes and the U.S. Constitution. Since the outset

of this lawsuit challenging the President’s removal of all but the ex officio members of the

Institute’s Board—after which all other challenged actions were effectuated—the parties have

taken opposite views of the legality of these actions based on their divergent characterizations of

the Institute’s relationship to the U.S. government: plaintiffs assert that USIP is a

“congressionally established” yet “free-standing nonprofit,” Pls.’ Mem. in Supp. of Mot. for

Summ. J. (“Pls.’ Mem.”) at 1, ECF No. 22, not part of the federal government at all, XMSJ Tr.

Hr’g at 8:6-8, while defendants assert that USIP is an “Executive Branch component of the

Nation’s federal government exercising executive power through executive functions,” Defs.’

Cross. Mot. for Summ. J., Mem. in Supp. & Opp’n to Pls.’ MSJ (“Defs.’ Opp’n”) at 1, ECF No.

32. No court before has addressed this novel question of where precisely the Institute falls

within our constitutional structure, though the answer to this question has implications for the

legality under the U.S. Constitution of the President’s exercise of removal power in a manner

that violates the applicable statute.

The Institute is unique in its structure and function—neither a traditional Executive

branch agency nor an entirely private nonprofit corporation. A close evaluation of USIP’s

organic statute and its practical operations indicates that the arguments ably presented on both

sides have some merit, but both end up taking leaps to reach conclusions that are unsupported by

the factual record and current jurisprudence. This Court concludes that, despite exhibiting

qualities of nongovernmental organizations (“NGOs”), USIP has strong governmental ties and

must be considered a part of the federal government, at least for purposes of resolving the

constitutional separation-of-powers questions posed here. At the same time, USIP does not

3
exercise governmental, let alone executive, power under the Constitution and is not part of the

Executive branch. Instead, USIP supports both the Executive and Legislative branches as an

independent think tank that carries out its own international peace research, education and

training, and information services.

As an independent entity exercising inconsequential government power and de minimis,

if any, executive power, Congress’s ability to restrict the President’s removal power is even

greater than that outlined in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), Seila

Law v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), and the Supreme Court’s

other seminal presidential removal power cases. Applying those cases, Congress’s restrictions

on the President’s removal power of USIP Board members are squarely constitutional, and the

President and his Administration’s acts to the contrary are unlawful and ultra vires. The actions

that have occurred since then—at the direction of the President to reduce USIP to its “statutory

minimums”—including the removal of USIP’s president, his replacement by officials affiliated

with DOGE, the termination of nearly all of USIP’s staff, and the transfer of USIP property to

the General Services Administration (“GSA”), were thus effectuated by illegitimately-installed

leaders who lacked legal authority to take these actions, which must therefore be declared null

and void.

* * *

To aid in review of this Memorandum Opinion, given its length required to address the

novel constitutional and other issues raised in the parties’ pending dispositive motions, an

overview is provided. Part I reviews the relevant factual and procedural background in this case

regarding the Institute (section A), the Administration’s actions that instigated this litigation

4
(section B), and the prior motions and rulings in this case leading to the expedited dispositive

motions resolved here (section C).

Part II provides the legal standards governing the parties’ cross-motions for summary

judgment, under Federal Rule of Civil Procedure 56.

Part III addresses the merits and disposition of the pending motions. Section A

considers whether USIP is part of the Executive branch under our Constitution and thus subject

to the President’s Article II removal authority. Subsection 1 holds that USIP is part of the

federal government such that constitutional separation-of-powers principles apply, but

subsection 2 holds that USIP does not exercise executive powers and is not part of the Executive

branch, and so the President had no constitutional authority under Article II to remove the

Institute’s Board members. Consequently, the USIP Act’s for-cause and other removal

protections were valid, and the President acted ultra vires, violating those provisions. Section B

goes on to consider whether that conclusion would change if USIP were part of the Executive

branch and concludes that it would not. USIP is led by a multi-member board of experts and

exercises de minimis, if any, executive power, so under binding precedent, including Humphrey’s

Executor and Seila Law, the statutory for-cause and other removal protections are

constitutional. Section C explains how these conclusions mean that plaintiffs prevail on Counts

One, Two, Three, Four, and Six in their Amended Complaint. Section D describes the

requirements for injunctive relief and determines both the declaratory relief to which plaintiffs

are entitled and the specific injunctive relief plaintiffs shall be afforded.

Part IV provides a brief conclusion summarizing the disposition of the pending cross-

motions for summary judgment.

5
I. BACKGROUND

The background and procedural history relevant to the pending cross-motions are

described below.

A. Organizational Background

USIP was established in 1984 under the Department of Defense Authorization Act of

1985, Pub. L. No. 98-525, tit. XVII sec. 1701-1712, 98 Stat. 2492, 2649, (1984), codified at 22

U.S.C. §§ 4601-4611. Pls.’ Statement of Undisputed Material Facts (“Pls.’ SUMF”) ¶ 1, ECF

No. 20; 1 22 U.S.C. § 4603(a) (“There is hereby established the United States Institute of

Peace.”). The effort to create USIP was bipartisan in nature, led by two former World War II

veterans, Senators Mark Hatfield and Spark Matsunaga, who had long envisioned a national

“peace academy.” Amicus Br. of 113 Former Sr. Military & Foreign Policy Gov’t Officials (“Sr.

Officials Amicus Br.”) at 10, ECF No. 31; The Origins of USIP, U.S. INSTITUTE OF PEACE,

https://web.archive.org/web/20241127185853/https:/www.usip.org/about/origins-usip (last

visited May 14, 2025). As the statute mentions, a “Commission on Proposals for the National

Academy of Peace and Conflict resolution, created by the Education Amendments of 1978,

recommended establishing an academy as a highly desirable investment for further the Nation’s

interest in promoting peace.” 22 U.S.C. § 4601(a)(7); REPORT OF THE COMMISSION ON

PROPOSALS FOR THE NATIONAL ACADEMY OF PEACE AND CONFLICT RESOLUTION, To Establish

the United States Academy of Peace (“Comm’n Rep.”) (1981). Specifically, the Commission

spent about a year hearing from people in the field, assessing peace-promoting organizations,

and evaluating “the current state of peace learning and its use.” Comm’n Rep. at 2. The

Commission saw a “federal role” for “international peace research, education and training, and

1
Unless otherwise noted, cited facts submitted by plaintiffs are undisputed. See Pls.’ SUMF; Defs.’
Responses to Pls.’ SUMF (“Defs.’ Resp.”), ECF No. 32-1.

6
information services,” id. at xiii, and proposed “an interdisciplinary institution devoted to

international peace” to further that interest, id. at 1. The Institute’s organic statute, implementing

this vision, was signed into law by President Reagan.

Described below are various aspects of how the Institute operates, including its statutory

framework, statutory purposes, funding sources, activities, interactions with other government

entities, and internal governance structure.

1. Statutory Framework

Congress defined USIP as an “independent nonprofit corporation and an organization

described in section 170(c)(2)(B) of Title 26,” 22 U.S.C. § 4603(b), which provides for

corporations or foundations “organized and operated exclusively for religious, charitable,

scientific, literary, or educational purposes,” 26 U.S.C. § 170(c)(2)(B). USIP has the powers of a

D.C. nonprofit corporation, except for the ability to dissolve itself. See 22 U.S.C. § 4604(a)

(referencing section 5(o) of the District of Columbia Nonprofit Corporation Act, D.C. Code 29-

412.01 et seq.); District of Columbia Nonprofit Corporation Act, Pub. L. No. 87-569, sec. 5(o),

76 Stat. 265, 268 (1962) (regarding a corporation’s authority to “cease its corporate activities and

surrender its corporate franchise”). 2 USIP likewise may not issue stock to transfer its ownership.

See 22 U.S.C. § 4603(b).

2. Purposes

The Institute’s organic statute describes its purpose as “establish[ing] an independent,

nonprofit, national institute to serve the people and the Government through the widest possible

2
Defendants agree that other provisions of the D.C. Code—aside from those outlining a nonprofit
corporation’s powers (section 5 of Pub. L. 87-569, or D.C. Code Title 29, Ch. 4, Subchapter III, § 29-403, “purposes
and powers”)—do not apply. See XMSJ Hr’g Tr. at 68:8-69:23. Therefore, USIP’s organic statute, see infra Part
I.A.7, not any provision of the D.C. Code, controls removal of USIP Board members and officers. Cf. D.C. Code
§ 29-406.08(e) (“Except as otherwise provided in the articles of incorporation or bylaws, a director who is appointed
by persons other than the members may be removed with or without cause by those persons.”).

7
range of education and training, basic and applied research opportunities, and peace information

services on the means to promote international peace and the resolution of conflicts among the

nations and peoples of the world without recourse to violence.” Id. § 4601(b). That section—the

“Congressional declaration of findings and purposes”—discusses the need for stronger research,

training, and information dissemination in peaceful conflict resolution techniques. See id.

§ 4601. Specifically, Congress identified a “national need to examine the disciplines in the

social, behavioral, and physical sciences and the arts and humanities . . . to bring together and

develop new and tested techniques to promote peaceful . . . relations in the world.” Id.

§ 4601(a)(4). In addition, Congress described “a need for Federal leadership to expand and

support the existing international peace and conflict resolution efforts of the Nation and to

develop new comprehensive peace education and training programs, basic and applied research

projects, and programs providing peace information.” Id. § 4601(a)(6).

To meet these identified needs, the political branches envisioned a “national institution

devoted to international peace research, education and training and information services,” id.

§ 4601(a)(5), using words such as an “academy,” id. § 4601(a)(7), or “institute strengthening and

symbolizing the fruitful relation between the world of learning and the world of public affairs,”

id. § 4601(a)(8). To carry out this goal of establishing such an “academy” or “institute,”

Congress provided funding and guidance on tasking, with protections to ensure the Institute’s

independence.

3. Funding

USIP receives annual appropriations from Congress to carry out its mission and may also

obtain funds through private donations and governmental grants, as well as by charging fees and

subscriptions for its publications and educational activities. Id. §§ 4609(a), 4604(h)(1),

4604(h)(3), 4604(i)-(j). Unlike Executive branch agencies, USIP may seek appropriations
8
directly from Congress, relegating the Office of Management and Budget (“OMB”) to

submitting comments on the budget request at the time of transmittal. Id. § 4608(a). Private

gifts and contributions may only be used for the development and maintenance of its

headquarters or other facilities and for hospitality purposes. Id. § 4604(h)(3)(A)-(B).

USIP’s distinctive headquarters (prior to the challenged acts in this case) on Washington,

D.C.’s Constitution Avenue were funded through $70 million of private contributions and $99

million of funds appropriated specially by Congress. Pls.’ SUMF ¶¶ 6, 9. The headquarters

were owned by USIP and maintained by USIP with private funds. Id. ¶ 9. While the United

States owns the land on which USIP’s headquarters are located, USIP had administrative

jurisdiction of that property, pursuant to a transfer effected in 1996. Id. ¶¶ 7-8; Am. Compl., Ex.

B, Letter from Sec’y of Navy to President of USIP (Nov. 21, 1996), ECF No. 12-2 (transferring

administrative jurisdiction over the real property to USIP); id., Ex. C, Notice of Transfer of

Jurisdiction (Nov. 8, 2013), ECF No. 12-3 (transferring an adjacent parcel of land).

USIP is congressionally authorized both to retain appropriated funds not used in a given

year, see 22 U.S.C. § 4609(b), and to collect private funds, in a separate private endowment, see

id. § 4603(c) (describing the “Endowment of the United States Institute for Peace”). Prior to the

events leading to the instant dispute, the Institute’s Endowment held $15 million of private

donations and $10 million of rolled-over appropriations. See Pls.’ SUMF ¶ 11.

Upon liquidation or dissolution of the Institute, all assets must revert to the U.S.

Treasury. 22 U.S.C. § 4610.

4. Activities

USIP’s activities, as set out in the organic statute, focus on research, training, and the

promotion of peaceful conflict resolution techniques. Congress instructed the Institute to

establish various fellowship, scholarship, and award programs, id. §§ 4604(b)(1), (b)(10), (c), as
9
well as a research program on peace to investigate “the causes of war,” “peace theories,” and the

“experiences of the United States and other nations in resolving conflicts,” id. § 4604(b)(3).

Congress further provided that the Institute should “develop programs to make international

peace and conflict resolution research, education, and training more available and useful.” Id.

§ 4604(b)(4). In this regard, Congress mentioned the creation of handbooks and practical

materials, the publication and dissemination of the Institute’s work product, and offering

trainings and symposia. Id. §§ 4604(b)(4), (b)(6)-(8). Apart from providing its own education,

the Institute is instructed to promote and support peace education and research at the graduate

and postgraduate levels and authorized to make grants to educational institutions for such

purposes. Id. §§ 4604(b)(5), (d). All of this work may be facilitated by forming relationships

with public and private institutions. Id. § 4604(b)(2).

USIP is also statutorily authorized to respond to requests for conducting investigations,

examinations, studies, and reports “on any issue within the Institute’s competence.” Id.

§ 4604(e). Such requests may, for instance, come from Congress. In fact, USIP regularly briefs

members of Congress and their staff. Pls.’ SUMF ¶ 60. USIP also engages in specific ad-hoc

projects, one example being the Iraq Study Group. A bipartisan group of members of Congress

asked USIP in 2006 to facilitate a study group comprised of various federal government officials

with support from independent nonprofit institutions to provide a fresh perspective on the

situation in Iraq. Id. ¶ 60(a). USIP organized expert working groups, developed briefing papers,

provided analysis, and coordinated meetings. Id. In 2020, Congress specifically directed, as

codified in law, USIP to develop the “Gandhi-King Global Academy,” a professional training

institute to develop and disseminate nonviolent conflict resolution curricula. Id.; see also

10
Consolidated Appropriations Act of 2021, Pub. L. 116-260, sec. 333-34, 134 Stat. 1182, 3115-16

(2020) (describing the Academy and the “Gandhi-King Scholarly Exchange Initiative”).

In addition to its headquarters in Washington, D.C., USIP has global applied research

offices abroad, where staff members carry out specific projects, facilitate conflict resolution

discussions, and teach and share nonviolent conflict management techniques. See Pls.’ Mem. at

7; Pls.’ SUMF ¶ 59.

To facilitate these statutory tasks, USIP may request information from various

government entities—just like any other private person—pursuant to the Freedom of Information

Act (“FOIA”). 22 U.S.C. § 4604(b)(9). USIP also serves as a clearinghouse for the

dissemination of information “from the field of peace learning” to the public and to government

personnel, id. § 4604(b)(8), and is subject itself to FOIA, id. § 4607(i). Congress made clear,

however, that USIP is not to advance its mission independently via petition to political bodies—

prohibiting its “influenc[ing] the passage or defeat of any legislation by the Congress” or state,

local, or global legislative bodies, unless asked to testify. Id. § 4604(n).

5. Interactions with Other Government Entities

Aside from the ways in which USIP interacts with Congress and Executive branch

agencies to further directly its peace-promoting goals, i.e., by responding to congressional and

agency inquiries, filing FOIA requests for information, or publishing work product, its organic

statute also provides for various administrative touchpoints with other government entities. For

instance, USIP may obtain support from the GSA on a reimbursable basis, despite retaining

ownership of its headquarters building (prior to the Administration’s actions leading to this

dispute). Id. § 4604(o). 3

3
GSA owns and leases 8,397 buildings for the federal government, including post offices, courthouses and
office buildings that house government offices, like the Department of Justice and Department of Labor. See

11
Further, despite maintaining substantial independence over its finances—as evidenced by

USIP having a private firm do its annual audits and USIP being authorized to make its own

budgetary request to Congress—USIP must report its annual audit to Congress and allow OMB

to comment on its budget requests. Id. §§ 4607(g)-(h), 4608(a). 4 USIP must also make biennial

reports to Congress and the President, id. § 4611, and report notice of its board meetings, which

may be provided in the Federal Register, id. § 4605(h)(3).

More consequentially, USIP may only continue to use “United States” “U.S.” or any

other reference to the U.S. government in its name or seal if Congress continues to appropriate

funds to the organization. Id. § 4603(e)(2). Thus, the Institute’s titular affiliation with the U.S.

government is contingent on Congress’s annual approval of appropriations.

6. Leadership and Staff

USIP is led by a Board of Directors consisting of fifteen voting members: three ex officio

members (the Secretary of State, the Secretary of Defense, and the National Defense University

President) and twelve members, who are appointed by the President of the United States and

confirmed by the Senate (“appointed members”). Id. § 4605(b). By statute, “not more than eight

voting members of the Board . . . may be members of the same political party.” Id. § 4605(c).

The twelve appointed members may serve up to two four-year terms. Id. § 4605(e)(1), (e)(4).

Congress required that the appointed members have “appropriate practical or academic

experience in peace and conflict resolution efforts of the United States,” id. § 4605(d)(1), and be

independent of the federal government since they may not be “[o]fficers” or “employees of the

Inventory of GSA Owned and Leased Properties, GSA, https://www.gsa.gov/tools-overview/buildings-and-real-
estate-tools/inventory-of-gsa-owned-and-leased-properties (last visited Apr. 21, 2025); id., GSA Properties,
https://www.gsa.gov/real-estate/gsa-properties (last visited Apr. 21, 2025).
4
KPMG, a private accounting firm, does audits for USIP. Pls.’ SUMF ¶ 33; see also 22 U.S.C. § 4607(g)
(stating that audits should be conducted “by independent certified public accountants or independent licensed public
accountants”).

12
United States Government,” id. § 4605(d)(2). Every three years, the Board elects a Chairman

from among the appointed members. Id. § 4605(h)(1). The Board meets at least semiannually,

at any time a meeting is called by the chairman or at the request of five members of the Board.

Id. § 4605(h)(2). The quorum for such meetings is a majority of members of the Board. Id.

The Board members appoint a president and other officers of USIP as necessary. Id.

§ 4606(a). The president of USIP is a nonvoting, ex officio member of the Board and serves for

a defined term of years. Id. The president may hire and terminate employees as he sees fit to

carry out the purposes of the Institute. Id. § 4606(c).

USIP officers and employees are considered federal employees only for limited, express

purposes. They are subject to the Federal Torts Claims Act (“FTCA”) as federal employees are,

and they are treated as federal employees for some compensation and benefits-related purposes,

see id. § 4606(f)(1), although they are paid via a private payroll and receive benefits through

private plans, see Pls.’ SUMF, Ex. 7, Decl. of Former USIP Pres. Amb. Moose (“Third Moose

Decl.”) ¶ 4, ECF No. 20-7; Pls.’ Opp’n Exhibits, Ex. 9, Decl. of Former USIP CFO Allison

Blotzer ¶ 3, ECF No. 34-11. Their compensation is set by the president of USIP, “governed by

the provisions of Title 5 relating to classification and General Schedule pay rates.” 22 U.S.C.

§ 4606(c).

Despite USIP having its own independent staff, other federal employees may join USIP

for a particular assignment. The president of USIP may request that a federal officer be assigned

“by an appropriate department, agency, or congressional official or member of Congress.” 22

U.S.C. § 4606(d)(1). The Secretary of State, Secretary of Defense, and Director of the CIA may

also assign employees and officers from their own agencies to the Institute “on a rotating basis to

be determined by the Board.” Id. § 4606(d)(2).

13
USIP is “liable for the acts of its directors, officers, employees, and agents when acting

within the scope of their authority” and thus does not have sovereign immunity. Id. § 4603(d).

The Institute may defend itself, as well as affirmatively sue, in any court of competent

jurisdiction, and is generally represented by private counsel. Id. § 4604(k); Pls.’ SUMF ¶ 32;

Defs.’ Resp. ¶ 32 (noting that USIP on occasion has been represented by DOJ).

7. The President’s Statutory Removal Authority

Appointed board members are subject to statutory removal protections and “may be

removed by the President” of the United States under three circumstances. First, the President

may remove a Board member under a classic for-cause provision. See 22 U.S.C. § 4605(f)(1).

“[I]n consultation with the Board,” the President may remove a Board member “for conviction of

a felony, malfeasance in office, persistent neglect of duties, or inability to discharge duties.” Id.

Second, the President may remove a Board member “upon the recommendation of eight voting

members of the Board.” Id. § 4605(f)(2). No cause is required if the eight voting members

agree, see id. § 4605(c), and given that the President may have up to eight members on the Board

of his own political party, the President could presumably remove a Board member for political

reasons. Third, the President may remove a Board member without cause if certain

congressional committees agree. Id. § 4605(f)(3). He needs “a majority of the members of the

Committee on Foreign Affairs and the Committee on Education and Labor of the House of

Representatives and a majority of the members of the Committee on Foreign Relations and the

Committee on Labor and Human Resources of the Senate.” Id. In short, the President may

remove a Board member for cause, upon recommendation of a majority of the Board, or upon

recommendations of two House and two Senate committees.

14
B. Factual Background

Prior to any of the events giving rise to this litigation, USIP’s president was Ambassador

George Moose, who previously served as Chair of the USIP Board and, for many years prior, as

Ambassador to the Republics of Benin and Senegal and Asisstant Secretary of State for African

Affairs. Pls.’ SUMF ¶ 31. The Board consisted of 10 appointed members: five Republicans

(Amb. John Sullivan, Judy Ansley, Jonathan Burks, Michael Singh, and Roger Zakheim), and

five Democrats (Nancy Zirkin, Joseph Falk, Kerry Kennedy, Mary Swig, and Edward Gabriel).

Id. ¶¶ 20-30. 5 Two seats were vacant. Id. ¶ 30. The other voting members of the Board were,

ex officio, Secretary of State Marco Rubio, Secretary of Defense Pete Hegseth, and Vice Admiral

Peter Garvin. Id. ¶¶ 17-19. The Institute employed over 400 employees. Id. ¶ 52.

On February 19, 2025, President Trump issued EO 14217, Commencing the Reduction of

the Federal Bureaucracy, which ordered the downsizing of “elements . . . that the President has

determined are unnecessary.” § 1, 90 Fed. Reg. at 10577. “The non-statutory components and

functions” of certain “governmental entities” are to be “eliminated to the maximum extent

consistent with applicable law,” and the entities are to “reduce the performance of their statutory

functions and associated personnel to the minimum presence and function required by law.” Id.

§ 2(a). The President, in other words, ordered a virtual elimination of four congressionally

created entities—USIP being one. Id.

Moving swiftly, President Moose and USIP outside counsel met the day after issuance of

EO 14217, on February 20, with several Trump administration officials tasked to efficiency-

promoting projects (like EO 14217). Pls.’ SUMF ¶ 36. Those officials asserted that the only

statutory requirements of USIP are the existence of a Board, the appointment of a president, the

5
The Board had 11 appointed members until March 14, 2025, when one appointed Board member resigned.
Pls.’ SUMF ¶ 16; Defs.’ SUMF ¶ 16.

15
payment of incidental expenses, and the submission of certain reports to Congress and the

Executive branch. Id. ¶ 36. Amb. Moose and USIP’s counsel explained that USIP is an

“independent nonprofit organization outside of the executive branch of the federal government.”

See id. ¶ 36; Defs.’ Resp. ¶ 36 (disputing that USIP is outside of the Executive branch but not

that USIP’s counsel so asserted); see also Am. Compl., Ex. D, Decl. of George Foote, USIP

Outside Counsel (“Foote Decl.”) ¶ 5, ECF No. 12-4. Amb. Moose soon after became aware that

DOGE was trying to determine the identity of USIP’s private security contractor. Compl., Ex.

A, Decl. of Amb. Moose ¶ 9 (“First Moose Decl.”), ECF No. 1-2.

Notwithstanding being informed of USIP’s view of its independence, as confirmed by its

outside legal counsel, and the apparent controversy surrounding this issue, the Administration

began disassembling USIP. On Friday, March 14, 2025, Trent Morse of the White House

Presidential Personnel Office emailed all appointed Board members “[o]n behalf of President

Donald J. Trump,” that their positions were “hereby terminated, effective immediately.” See

Pls.’ SUMF ¶¶ 38-39; id., Ex. 12, ECF No. 20-12. The emails provided no legal or factual

justification for the terminations and did not purport to meet any statutory requirement under 22

U.S.C. § 4605(f). Pls.’ SUMF ¶¶ 40-42. That same day, a resolution was signed by the

remaining three ex officio voting Board members removing President Moose and replacing him

with an individual named Kenneth Jackson. Id. ¶ 43. When alerted by Board members about

these purported termination emails, outside counsel for USIP continued to impress upon DOGE

officials that USIP is outside of the control of the Executive branch and that he had informed the

Board members that these emails had no legal effect. See Foote Decl. ¶¶ 7-8.

Rather than engaging with outside counsel or seeking recourse for clarification in a court

of law, representatives from DOGE attempted to enter USIP headquarters, but were denied entry.

16
Pls.’ SUMF ¶ 45. USIP’s outside counsel sent an email to DOGE’s general counsel reiterating

the view of USIP’s status as “an independent nonprofit organization outside of the control of the

Executive branch,” and further advising that DOGE representatives required the USIP

president’s approval or a warrant to enter USIP headquarters and offering to discuss the matter.

Foote Decl. ¶¶ 6-8. No DOGE or other Administration official sent any response to this email.

Id. The DOGE officials tried again later, accompanied by agents of the Federal Bureau of

Investigation (“FBI”), to enter USIP headquarters, but were denied entry. Pls.’ SUMF ¶ 45; First

Moose Decl. ¶ 11-12; Foote Decl. ¶ 9.

Undeterred, DOGE officials, in conjunction with the FBI and the Administration’s newly

installed Chief of the Criminal Division of the D.C. U.S. Attorney’s Office (“DC-USAO”)

continued their efforts over the weekend to take control of the USIP premises. On Sunday, two

FBI agents visited a “senior USIP security official at his home” to determine how to gain access

to the building. Pls.’ SUMF ¶ 46; Foote Decl. ¶ 10. That manager was on medical leave and was

taken off guard by the visit. Foote Decl. ¶ 10. USIP outside counsel contacted one of the FBI

agents and requested that all inquiries be directed toward him, given the underlying legal issues

with the President’s removal of the Board. See id. The FBI agent expressed that he was “hyper

aware” of the issues. Id.

Nonetheless, the FBI on Sunday also contacted USIP’s Chief Security Officer, Colin

O’Brien, seeking information about USIP security procedures. See Am. Compl., Ex. G, Decl. of

Colin O’Brien, Chief Security Officer of USIP (“O’Brien Decl.”) ¶ 3, ECF No. 12-7. The FBI

agent, the same one who had communicated with outside counsel and was thus apprised of the

legal advice about USIP’s independence, threatened that O’Brien was “the subject of an

investigation by the Department of Justice into the incident that took place at USIP on Friday,

17
March 14, 2025, when USIP denied building entry to DOGE staff and FBI agents,” despite, as

the agent well knew, that O’Brien and others were acting in response to advice by outside legal

counsel. Id. ¶ 3; Foote Decl. ¶ 10. O’Brien received the FBI’s call while at work and feared that

the FBI would be awaiting him for questioning when he returned home. O’Brien Decl. ¶ 3.

The DC-USAO Criminal Division Chief became involved the same Sunday, calling

outside counsel to seek access to the USIP building and resources for unnamed individuals and

stating “a suspicion that USIP may be engaging in criminal behavior.” Foote Decl. ¶ 12 (“I later

received a call from Jonath[a]n Hornok, Chief of the Criminal Division of the U.S. Attorney’s

Office for the District of Columbia.”). This same DC-USAO official called again later on

Sunday to say he was requesting that representatives for Secretaries Rubio and Hegseth be able

to inspect books and records. Id. Outside counsel informed the DC-USAO official that he

would be happy to facilitate such access upon a formal written request. Id. ¶ 13. Then, the DC-

USAO official stated that “unnamed representatives of Secretary Hegseth would be at the USIP

headquarters building the next day and would expect access to the USIP information systems.”

Id. ¶ 15. He threatened to investigate criminally anyone who obstructed their access. Id. (“He

said that as Chief of the Criminal Division, he would criminally investigate USIP and anyone

who ‘obstructed’ their access to USIP’s computer systems.”); Pls.’ SUMF ¶ 47.

Upon O’Brien’s recommendation, Amb. Moose and outside counsel decided to suspend

USIP’s contract with Inter-Con, its private security firm, out of concern that DOGE or the FBI

would coerce Inter-Con employees into facilitating access. O’Brien Decl. ¶ 4; Pls.’ SUMF ¶ 48.

This concern turned out to be prescient.

On Monday, March 17, 2025, a tense sequence of events unfolded at USIP Headquarters

in downtown Washington, D.C. Under the duress of threats relayed by DOGE officials of loss of

18
all of its government contracts, four employees of Inter-Con arrived at USIP Headquarters. TRO

Hr’g Tr. at 36:3-16 (3/19/25), ECF No. 18; Pls.’ SUMF ¶ 49; Foote Decl. ¶ 16; O’Brien Decl.

¶ 8. Their badges had been deactivated, due to the suspension of the Inter-Con contract, but

these formerly contracted security personnel gained access to USIP’s headquarters when a fifth

employee arrived with a physical key that had not yet been restored to USIP’s custody. Pls.’

SUMF ¶ 49; see also O’Brien Decl. ¶¶ 5-6; Foote Decl. ¶¶ 16-17. Outside counsel informed

them that they were trespassing. O’Brien Decl. ¶ 7; Foote Decl. ¶ 18. USIP officers

immediately formally terminated the entire Inter-Con contract. Pls.’ SUMF ¶ 48; O’Brien Decl.

¶ 9.

The Inter-Con staff proceeded to USIP’s arms room, where USIP’s firearms are stored.

O’Brien Decl. ¶ 10; Foote Decl. ¶ 18. Fearing a violent standoff, Amb. Moose and O’Brien

initiated a building lockdown and called the D.C. Metropolitan Police Department (“MPD”) to

report the trespass. See Pls.’ SUMF ¶ 50; O’Brien Decl. ¶¶ 11, 14; Foote Decl. ¶¶ 18-19. DOGE

officials attempted to gain access through various doors but were unable to do so. O’Brien Decl.

¶ 12.

In the meantime, Jackson, who had been designated as USIP’s president by the three ex

officio Board members the prior Friday, contacted outside counsel and asked to speak. Foote

Decl. ¶ 21. Jackson was outside of the headquarters, but the “circus” outside—people from the

media and photographers who had gathered on scene—prevented them from speaking there. Id.

¶¶ 21-23. They agreed to meet on Zoom, but Jackson never showed up for the video conference

conversation. Id. ¶ 23.

MPD arrived at USIP’s headquarters and allowed DOGE officials, including Jackson, to

enter the building behind them. Pls.’ SUMF ¶ 51; Foote Decl. ¶ 25; O’Brien Decl. ¶¶ 16-17.

19
O’Brien initiated a higher-level, full building lockdown. O’Brien Decl. ¶ 18. DOGE officials

asked him to escort them throughout the building, but O’Brien refused; he would not have been

able to do so because of the building shutdown. Id. ¶ 19. MPD instead escorted outside counsel,

Amb. Moose, and O’Brien (and later, all USIP personnel) out of the building without allowing

them to retrieve their belongings. Pls.’ SUMF ¶ 51; Foote Decl. ¶ 26. At that point, about

fifteen police officers and multiple vehicles were outside of the building. Foote Decl. ¶ 27.

While waiting outside, O’Brien was informed that the FBI was en route, and he observed

two diplomatic security officers from the Department of State arrive and enter the building.

O’Brien Decl. ¶¶ 22-23; First Moose Decl. ¶ 12 (representing that DOGE officials returned to the

building with FBI agents after they were initially denied access by USIP staff). He then

observed MPD retrieve lock-picking equipment from a vehicle and gain entrance through a

building door on Constitution Avenue. O’Brien Decl. ¶ 25. O’Brien and other USIP personnel

received requests from DOGE personnel or others working with them to gain further access to

the USIP building and USIP computer systems. Id. ¶¶ 27-28.

In short, over that weekend and Monday, FBI officials visited a USIP employee on

medical leave in his home, an FBI agent called and threatened investigation of another USIP

employee, the DC-USAO Chief of the Criminal Division called outside counsel twice and

threatened criminal investigation of outside counsel and anyone who interfered with DOGE

accessing USIP physical premises and systems, and law enforcement officers from three separate

agencies converged at the headquarters where they escorted Amb. Moose and other USIP

officers off the premises.

Two days later, DOGE officials were able to access USIP computer systems through

USIP IT personnel, Am. Compl., Ex. A, Decl. of Amb. Moose (“Second Moose Decl.”) ¶¶ 5-11,

20
ECF No. 12-1 (describing one employee who drove from Georgia to aid DOGE access), and then

attempted to cut off personnel access to funds and were suspected of dumping financial records

into shred bins. Id. ¶ 12-14; see also Pls.’ Mot. for TRO, Ex. B, ECF No. 2-3 (photograph

purportedly taken on March 18, 2025, of paper records in trash can marked “SHRED”). DOGE

officials proceeded to strip USIP logos and monikers from the walls inside of the building.

Second Moose Decl. ¶ 15.

On March 21, 2025, newly installed USIP president Jackson fired six USIP employees,

referencing their at-will employment status. See Pls.’ SUMF ¶ 53; id., Ex. 13, ECF No. 20-13.

Just one week later, nearly all of the Institute’s employees were fired, presumably also by

Jackson. See Pls.’ SUMF ¶ 54; id., Decl. of Terry Jones, Former VP of Human Resources

(“Jones Decl.”) ¶ 5, Ex. 4, ECF No. 20-4.

Around this time in late March, a resolution signed by two of the three ex officio Board

members, Secretaries Rubio and Hegseth, removed USIP President Jackson and replaced him

with Nate Cavanaugh, one of the DOGE-affiliated officials who had been working on

disassembling USIP. Id. ¶ 55; Defs.’ Opp’n to Pls.’ Mot. Pursuant to All Writs Act (“Defs.’

Opp’n to Pls.’ All Writs Mot.”), Ex. 2 (“Resolutions”) at 1-4, ECF No. 15-2. That same

resolution set the groundwork for disposing of USIP’s assets. The resolution removed USIP’s

Chief Financial Officer and Chief Operating Officer and terminated all officers of the

Endowment. See Resolutions at 1, 3; Pls.’ SUMF ¶ 57. A newly appointed president of the

Endowment was instructed by Secretaries Hegseth and Rubio to transfer all of the Endowment’s

assets to USIP, and Cavanaugh was instructed, also by Hegseth and Rubio, to transfer all of

USIP’s assets, including assets received from the Endowment, to GSA. See Resolutions at 1, 3;

Pls.’ SUMF ¶¶ 55, 57.

21
Cavanaugh executed documents to transfer the USIP headquarters building to GSA,

without compensation, via a series of undated documents sometime around the end of March.

See Defs.’ Opp’n to Pls.’ All Writs Mot., Request for Transfer of Excess Real and Related

Personal Property (“Request for Transfer”), Ex. 1, ECF No. 15-1; id., Letter from Cavanaugh to

GSA Adm’r Ehikian Ex. 3, ECF No. 15-3; id., Letter from OMB Director Vought to Ehikian,

Ex. 4, ECF No. 15-4; Pls.’ SUMF ¶ 56. Included in that transfer appears to be the various assets

within USIP’s headquarters. See Request for Transfer. The headquarters have been, or are in the

process of being, leased to the Department of Labor. See Pls.’ SUMF ¶ 58. Plaintiffs represent

that the funds in USIP’s Endowment have also been transferred, but they do not know their

destination. See XMSJ Hr’g Tr. at 12:22-13:3.

USIP now has only four or five employees and is conducting no programmatic activities.

See XMSJ Hr’g Tr. at 13:4-15:6. Defendants take the position that USIP is only required to

undertake statutory functions using mandatory language, such as “shall.” Id. at 59:23-60:14.

Thus, in the Administration’s view, the detailed statutory tasks laid out in 22 U.S.C.

§§ 4604(b)(1)-(10), 4604(c)-(g), which are all introduced by the phrase “the Institute may,” can

be ignored. See XMSJ Hr’g Tr. at 59:23-60:14. Even the mandatory programs, however, appear

to have been halted. See id. at 14:14-15:6; Pls.’ SUMF, Decl. of Alli Alourdes Phillips (“Phillips

Decl.”) ¶¶ 2, 5, Ex. 31, ECF No. 20-31 (describing the Gandhi-King Global Academy and how it

was shut down).

C. Procedural History

On March 18, 2025, the Institute and five of its purportedly terminated appointed Board

members sued then-USIP president Jackson, U.S. DOGE Service, U.S. DOGE Service

Temporary Organization, several DOGE officials including Cavanaugh, Secretaries Rubio and

Hegseth, Vice Admiral Garvin, and President Trump, alleging ultra vires actions, separation-of-
22
powers violations, and violations of the USIP organic statute, as well as trespass to real and

personal property. See Compl., ECF No. 1. Those plaintiffs immediately sought a temporary

restraining order (“TRO”) and an administrative stay, given that, at the time, the named

defendants were entering USIP’s headquarters and allegedly engaging in immediate seizing of

property and property damage, including the alleged destruction of financial records. See Pls.’

Mot. for TRO at 3, ECF No. 2-1; id., Pls.’ Mem. in Supp. Mot. for TRO, ECF No. 2-1; id., Ex. B

(photograph of paper records in “SHRED”-marked trash can). They sought to restore all

removed Board members to their positions, as well as Amb. Moose, though not all those fired

were plaintiffs in the litigation. See id., Proposed TRO, ECF No. 2-4; TRO Hr’g Tr. at 7:1-8:6,

11:11-21. Plaintiffs also sought to eject defendants from USIP’s headquarters and revoke their

access to electronic property. See TRO Hr’g Tr. at 7:1-8:6. The Court held a hearing on the

request for a TRO the following day, on March 19, 2025.

Plaintiffs provided no argument, at the hearing or in their papers, on the Court’s authority

to issue an administrative stay, so the parties and Court focused on the propriety of a TRO,

which demands a showing of a likelihood of success on the merits, Ramirez v. Collier, 595 U.S.

411, 421 (2022). See TRO Hr’g Tr. at 21:10-22:17. On that front, the parties took completely

divergent views about the nature of the Institute. Plaintiffs insisted that USIP was entirely

independent from the federal government, see id. at 15:10-25, while defendants insisted that

USIP was an Executive branch agency subject to presidential control. See Defs.’ Opp’n to Pls.’

TRO at 1-2, ECF No. 9 (contending dispute was non-justiciable as an intra-executive branch

conflict). On this expedited timeline, neither side provided a fulsome analysis of the powers

actually exercised by USIP to allow for a determination of where the Institute falls within the

federal government, if at all, nor did either provide a nuanced analysis of how such an entity

23
could be governmental without its presidentially appointed Board being subject to absolute

presidential control. For instance, plaintiffs provided little to no analysis of how to analyze the

President’s removal authority if the Court concluded that defendants were correct that USIP was

a governmental entity and were, additionally, correct that USIP, in fact, did fall within the

Executive branch. See TRO Hr’g Tr. at 67:10-21 (plaintiffs’ counsel mentioning Humphrey’s

Executor only briefly on rebuttal); Pls.’ Mem. in Supp. TRO; Defs.’ Opp’n to Pls.’ TRO.

Without full briefing on the complex constitutional and novel question about the nature

of this unique Institute, this Court determined that the Institute and its five terminated Board

members had not yet demonstrated a likelihood of success on the merits or irreparable harm

entitling them to the requested temporary injunctive relief. See Min. Order (Mar. 19, 2025)

(denying the TRO). In accord with the parties’ request, the Court set a schedule for expedited

briefing of dispositive motions. See Min. Order (Mar. 20, 2025).

A few days later, the existing plaintiffs filed an amended complaint, adding to the

previously listed plaintiffs both Ambassador Moose and Nancy Zirkin (a former Democratic

appointed Board member), collectively “plaintiffs.” See Am. Compl., ECF No. 12. These

plaintiffs reasserted their claims in both their official and individual capacities. See id. Plaintiffs

also added Trent Morse to the existing defendants, collectively “defendants,” and added an

additional claim under the Administrative Procedure Act (“APA”). See id. ¶¶ 100-102. The

operative amended complaint now contains the following seven claims: defendants acted ultra

vires in attempting to exert control over USIP (Count One), id. ¶¶ 71-77; defendants violated 22

U.S.C. § 4605(f) in removing the USIP Board members without satisfying the statutory

provisions (Count Two), id. ¶¶ 78-85; defendants Rubio, Hegseth, and Garvin acted ultra vires

and in violation of 22 U.S.C. § 4605 in removing Amb. Moose as president of USIP (Count

24
Three), id. ¶¶ 86-92; defendants Jackson, Rubio, Hegseth, and Garvin acted ultra vires and in

violation of 22 U.S.C. § 4605 in appointing Jackson as the new president of USIP (Count Four),

id. ¶¶ 93-99; defendants Jackson, Rubio, Hegseth, and Garvin, the latter three acting in their

official capacities as Secretary of State, Secretary of Defense, and President of the National

Defense University, respectively, violated the APA by taking actions that were unlawful,

arbitrary and capricious, abuses of discretion, in excess of authority, without observance of

required procedure, and not otherwise in accordance with law (Count Five), id. ¶¶ 100-02; and

defendants Jackson, U.S. DOGE Service, and U.S. DOGE Service Temporary Organization

committed trespass in entering USIP headquarters without permission and future trespass in

intending to seize personal property, records, and computer systems (Count Six), id. ¶¶ 103-14.

Plaintiffs additionally request declaratory relief on all of those claims. Id. ¶¶ 115-16 (Count

Seven).

After the Amended Complaint was filed, and as described infra in Part I.B., defendants

proceeded to terminate the Institute’s employees and appoint yet another new president, who was

then instructed to transfer all of USIP’s assets to GSA. In response, plaintiffs moved, on March

31, 2025, pursuant to the All Writs Act, 28 U.S.C. § 1651, to suspend what they believed was the

imminent transfer of property. See Pls.’ All Writs Act (“AWA”) Mot., ECF No. 14. After a

hearing held the next day, this Court denied the relief, in part, because the headquarters had

already been transferred to GSA the prior weekend and also the requested relief was not

“necessary or appropriate in aid of” the Court’s “jurisdiction” to qualify under the AWA. See

Min. Order (Apr. 1, 2025). Plaintiffs further had not demonstrated a likelihood of success on the

merits. See id.

25
Plaintiffs then moved for expedited summary judgment. See Pls.’ Mem. Former

terminated employees of USIP and former senior military and foreign affairs officials filed

amicus briefs. See Amicus Br. of 128 Emps. of USIP Purportedly Terminated (“Terminated

Emps. Amicus Br.”); ECF No. 30; Sr. Officials Amicus Br. Defendants opposed and cross-

moved for summary judgment. See Defs.’ Opp’n. Plaintiffs filed a combined opposition to

defendants’ motion and a reply in support of plaintiffs’ motion. Pls.’ Opp’n & Pls.’ Reply (“Pls.’

Opp’n”), ECF No. 34. Defendants lastly filed a reply in support of their summary judgment

motion. Defs.’ Reply in Supp. Summ. J. (“Defs.’ Reply”), ECF No. 36. The Court heard oral

argument on these motions on May 14, 2025. See XMSJ Hr’g Tr. These expedited cross-

motions for summary judgment are now ripe for resolution.

II. LEGAL STANDARD

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). A fact is only “‘material’ if a dispute over it might affect the outcome of a suit under the

governing law,” meaning that “factual disputes that are ‘irrelevant or unnecessary’ do not affect

the summary judgment determination.” Mayorga v. Merdon, 928 F.3d 84, 89 (D.C. Cir. 2019)

(quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)). A dispute is only “genuine” if

“the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id.

(citation omitted). Thus, “[i]n considering a motion for summary judgment, judges must ask

themselves not whether they think ‘the evidence unmistakably favors one side or the other but

whether a fair-minded jury could return a verdict for the plaintiff on the evidence

presented,’” because that evidence is such that “the jury could reasonably find for the

26
plaintiff.” Stoe v. Barr, 960 F.3d 627, 638-39 (D.C. Cir. 2020) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986)).

III. DISCUSSION

Plaintiffs argue that they should prevail on their claims because USIP’s Board members

were wrongfully terminated, rendering invalid all subsequent actions taken on behalf of USIP

under defendants’ leadership, because the President’s removal power is subject to statutory

requirements, which were ignored. See Pls.’ Mem. at 36-37. This argument is predicated on

plaintiffs’ view that USIP is not a governmental entity and, regardless, is neither an Executive

branch entity nor exercises executive powers. See id. at 15-29; XMSJ Hr’g Tr. at 8:6-8. In

addition, plaintiffs contend that defendants’ actions in effectively ceasing the Institute’s

activities, terminating its staff, and otherwise seemingly dissolving the Institute (by transferring

its assets, terminating its contracts, etc.) are separately unlawful because these actions violate

USIP’s organic statute and are arbitrary and capricious under the APA. See Pls.’ Mem. at 37-38.

Defendants counter that the statutory removal protections for USIP’s Board members are

unconstitutional under the Constitution’s Article II because USIP is an Executive branch entity

wielding executive power that does not fit within the narrow exception to the President’s broad

removal authority as outlined in Humphrey’s Executor. See Defs.’ Opp’n at 6-26. According to

defendants, all of their actions were therefore lawful, and plaintiffs’ additional claims all fail.

See id. at 27-30. Defendants further argue that injunctive relief is unavailable and would be

improper here and that plaintiff Board members cannot sue on behalf of the Institute. See id. at

7-8, 30-33.

The instant claims present novel and complicated questions, starting with whether USIP,

congressionally created to be an independent nonprofit corporation, is a governmental entity. If

27
so, the next question is whether USIP is independent of the Executive branch, such that the

President may not exercise inherent Article II removal authority over USIP Board members in

contravention of Congress’s statutory boundaries. Finally, even if USIP is a governmental entity

properly placed in the Executive branch for purposes of constitutional analysis, as defendants

urge, the next crucial question is whether the President’s Article II removal authority is

improperly infringed by the statutory removal protections for USIP’s Board members. No

caselaw provides binding answers to these questions involving USIP or any similar entity, and

the Constitution—necessarily short, to last the test of time—provides only the scarcest of

instruction.

As a backdrop to the discussion that follows, however, certain legal guideposts are clear.

First, the President’s exercise of any unilateral removal authority is limited to Executive branch

officers, a principle confirmed in every removal power case decided by the Supreme Court. See,

e.g., Myers v. United States, 272 U.S. 52, 126 (1926) (“In the absence of any specific provision

to the contrary, the power of appointment to executive office carries with it, as a necessary

incident, the power of removal.” (emphasis added)); Humphrey’s Ex’r, 295 U.S. at 627-28

(“[T]he necessary reach of the [Myers] decision goes far enough to include all purely executive

officers. It goes no farther; 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.”); Wiener v. United States, 357 U.S. 349, 353 (1958)

(“[Humphrey’s] 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 hindrance of any

other official or any department of the government,’ as to whom a power of removal exists only

28
if Congress may fairly be said to have conferred it.” (internal citations omitted) (quoting

Humphrey’s Ex’r, 295 U.S. at 625-26)); Morrison v. Olson, 487 U.S. 654, 689-90 (1988) (“The

analysis contained in our removal cases is designed not to define rigid categories of those

officials who may or may not be removed at will by the President, but to ensure that Congress

does not interfere with the President's exercise of the ‘executive power’ and his constitutionally

appointed duty to ‘take care that the laws be faithfully executed’ under Article II.”); Free Enter.

Fund v. Pub. Co. Acct. Oversight Bd. (“PCAOB”), 561 U.S. 477, 483 (2010) (explaining that

because all executive power is vested in the President, who must “take Care that the Laws be

faithfully executed” and “perform all the great business of the State” (quoting 30 WRITINGS ON

GEORGE WASHINGTON 334 (J. Fitzpatrick ed. 1939)), he must have the power of appointment

and the power of removal “to keep these officers accountable” (citing Art. II, § 1, cl. 1; id. § 3));

Seila L., 591 U.S. at 214 (“The view that prevailed, as most consonant to the text of the

Constitution and to the requisite responsibility and harmony in the Executive Department, was

that the executive power included a power to oversee executive officers through removal.”

(emphasis added) (citation and internal quotations omitted)); Collins v. Yellen, 594 U.S. 220, 252

(2021) (“The removal power helps the President maintain a degree of control over the

subordinates he needs to carry out his duties as the head of the Executive Branch, and it works to

ensure that these subordinates serve the people effectively and in accordance with the policies

that the people presumably elected the President to promote.”).

Second, and an inexorable result of the first point, is that the President’s constitutional

removal authority does not extend as far as his power to appoint. Put another way, just because

the President has appointment power does not mean he has absolute removal power when the

Constitution or Congress provides otherwise for governmental entities not located within the

29
Executive branch nor exercising executive power. Defendants acknowledge that the Supreme

Court’s current jurisprudence extends only this far. XMSJ Hr’g Tr. at 62:20-66:15 (In response

to the Court’s query, “Would you agree that the jurisprudence, the Supreme Court law binding

on this Court, has to date only s[aid] that the President's absolute removal power is as to

executive branch agencies exercising more than de minimis executive power?,” defendants’

counsel confirmed, “I believe that is where the Supreme Court’s jurisprudence has been.”). 6

A careful examination of relevant judicial authorities, as applied to USIP’s statutory

purposes and tasking, and its operations, make clear that although USIP may be considered a

governmental entity for the constitutional questions raised in the instant lawsuit about the scope

of the President’s removal authority, USIP does not exercise executive power so as to invoke

concern about the President’s Article II removal power. Even if USIP were an Executive branch

agency, however, the Supreme Court’s reasoning in Humphrey’s Executor would apply a fortiori

here. The Board members’ removal without cause was therefore unlawful, and plaintiffs prevail

on Counts One and Two (removal of the Board members was ultra vires and violated 22 U.S.C.

§ 4605(f)). Defendants’ subsequent actions that flowed from the improper removal of USIP’s

leadership in March 2025 are thus also unlawful, such that summary judgment for plaintiff is

also appropriate for Counts Three (removal of USIP president Amb. Moose was unlawful), Four

6
Defendants’ counsel, however, suggested that the Supreme Court could go further and recognize
presidential removal power under the Constitution beyond the bounds of Article II—essentially, removal power
coextensive with appointment power, except presumably for those presidential appointments subject to
constitutional protection under Article III—despite the stark departure from separation-of-powers principles that
would represent. See XMSJ Hr’g Tr. at 65:21-24 (defendants’ counsel stating, “But one caveat, I don’t think [the
Supreme Court has] considered a case of an entity where the President has appointment power that falls outside of
the executive branch,” prompting the Court’s follow-up question, “So . . . if USIP is found not to be an executive
branch agency, this might be its first opportunity . . . to decide that?”, to which defendants’ counsel responded,
“Perhaps”).

30
(appointment of the new USIP presidents was unlawful), and Six (trespass of defendants on

USIP property). 7

In sum, for the reasons explained below, plaintiffs’ summary judgment motion is granted,

and defendants’ cross-summary judgment motion is denied. 8

A. USIP Does Not Exercise Article II Executive Power Such that USIP is
Subject to the President’s Constitutional Removal Authority.

Plaintiffs argue that USIP is a “non-executive nonprofit corporation,” not part of the

Executive branch, and therefore “Article II has nothing to say about the removal of [its] Board.”

Pls.’ Mem. at 2, 14-15. Defendants, on the other hand, insist that USIP is an “establishment of

the United States,” citing 22 U.S.C. § 4603(a) (“There is hereby established the United States

Institute of Peace.”), and as such, it must “fall into one of three branches.” Defs.’ Opp’n at 3, 9-

10, 13. Defendants then reach the swift conclusion that because USIP does not exercise judicial

or legislative power and, further, operates in the area of foreign policy, USIP must be “part of the

executive branch.” Id. at 13-14. With these predicates in place, defendants reason that the

7
Given that no additional relief is available to plaintiffs if they were to succeed on the merits of Count Five,
see XMSJ Hr’g Tr. at 52:8-15, the APA claim asserted in that count need not be considered.

8
Defendants make several threshold arguments that plaintiffs’ claims are improper, but none are persuasive.
First, defendants contend that plaintiffs’ counsel does not represent the Institute, which is named a plaintiff, because
only the present leadership of the Institute (Cavanaugh, Secretaries Hegseth and Rubio, and Garvin) have the power
to authorize suit. See Defs’ Opp’n at 7-8 (citing 22 U.S.C. § 4604(k)); Defs.’ Reply at 19-20. Yet, if the removal of
plaintiff Board members and former USIP president, Amb. Moose, are found to be unlawful, Amb. Moose remains
in charge of USIP and thus can authorize suit, and has done so. See Pls.’ SUMF, USIP Bylaws § 5, ECF No. 20-37
(giving the president responsibility for “day-to-day administration of the affairs of the Institute”). Second,
defendants argue that plaintiffs cannot file suit in their former official capacities because they lack the power of
those offices. Defs.’ Opp’n at 9. This, too, assumes the removal of the plaintiff appointed members was lawful,
when that is the very legal question to be resolved here. Regardless, plaintiffs, in the Amended Complaint, also sued
in their individual capacities, so defendants’ point has no practical effect on plaintiffs’ claims. Finally, defendants
argue that plaintiffs improperly sued Jackson in his official capacity at USAID, where Jackson was the Assistant to
the Administrator for Management and Resources, see id., but Jackson did not take any of the actions at issue in this
case in that capacity—he took the actions alleged in this lawsuit as the president of USIP, as plaintiffs clearly allege,
see Am. Compl. at 2 (suing Jackson in his “purported capacity as acting president of [USIP]”). In any case, no
claim turns on the proper inclusion of Jackson as a defendant, given that the current president of USIP (Cavanaugh)
was also named, so any necessary relief may run against him. See id.

31
President has removal authority over USIP’s leadership under Article II of the Constitution. See

id. at 18, 23.

The classification of USIP as a government entity that sits within the Executive branch,

as defendants insist it does, bears on the President’s constitutional removal authority. As

explained, the President’s Article II removal authority only extends as far as the Executive

branch. The Supreme Court explained in Seila Law that the President has the constitutional

“ability to remove executive officials” because they “must remain accountable to the President,

whose authority they wield” under Article II of the Constitution. 591 U.S. at 213; see also id. at

214 (quoting Myers, 272 U.S. at 163-64, for the principle that “Article II ‘grants to the President’

the ‘general administrative control of those executing the laws, including the power of

appointment and removal of executive officers’” (emphasis in original)). Even under the

broadest vision of the unitary executive theory—where all the power of the Executive branch is

“unified” in the President to “ensure both vigor and accountability,” Harris v. Bessent (“Harris

III”), No. 25-5057, 2025 WL 980278, at *3-4 (D.C. Cir. Mar. 28, 2025) (Walker, J., concurring)

(emphasis in original) (second passage quoting Seila L., 591 U.S. at 240 (Thomas, J., concurring

in part and dissenting in part)), vacated en banc, 2025 WL 1021435 (D.C. Cir. Apr. 7, 2025)—

presidential removal authority only extends as far as officials in that branch. See id. at *4

(“[T]he president of the United States [is] ‘. . . personally responsible for his branch.’” (emphasis

added) (quoting Akhil Reed Amar, AMERICA'S CONSTITUTION: A BIOGRAPHY 197 (2005))). The

Constitution does not grant the President removal authority over other government or

nongovernment officials writ large. While the President appoints Article III judges, for instance,

he has no power to remove them.

32
USIP has qualities of both a government entity and an NGO. While USIP may be

considered part of the government for constitutional purposes—meaning regardless of any

statutory classification, the Institute is subject to at least some provisions of the Constitution—

USIP nevertheless does not exercise executive power and thus does not sit under Article II as an

Executive branch entity.

1. USIP is Part of the Federal Government for Purposes of a
Constitutional Separation-of-Powers Analysis.

Defendants conclude that USIP is part of the federal government because USIP was

created by federal statute, indeed “established” by Congress, 22 U.S.C. § 4603(a), is led by a

Board of presidential appointees, including Cabinet officials, and has “various other hallmarks of

being part of the federal government.” Defs.’ Opp’n at 10. They further highlight multiple

statutory provisions governing USIP, including that USIP is (1) authorized to use the name and

seal of the United States, 22 U.S.C. § 4603(e), (2) subject to FOIA, id. § 4607(i), (3) required to

publish notices of board meetings (and may do so in the Federal Register), id. § 4605(h)(3), (4)

funded almost exclusively by appropriations, id. § 4604(h)(3), (5) prohibited from issuing stock

and thus having private ownership, id. § 4603(b), and (6) able to obtain services and support

from GSA, id. § 4604(o). Defs.’ Opp’n at 10. Moreover, (7) USIP’s assets revert to the

Treasury upon liquidation, 22 U.S.C. § 4610, and USIP’s employees are subject to (8) the FTCA,

id. § 4606(f)(1), (9) federal statutes establishing employee benefits, id., (10) federal statutes

determining compensation, id. §§ 4605(i), 4606(a), 4606(c), and (11) federal statutory

requirements for reimbursement of travel expenses, id. § 4605(j). Defs.’ Opp’n at 10-11.

In addition to these federal statutes treating USIP as a federal entity, OMB annually lists

USIP as a “federal entity,” pursuant to the Inspector General Act of 1978, which requires OMB

to identify “federal entities,” and government manuals and websites list USIP as part of the

33
federal government. Id. at 11-13 (citing 5 U.S.C. § 415(a)(2)); GSA, United States Institute of

Peace, USA.GOV: A-Z INDEX OF U.S. GOVERNMENT DEPARTMENTS AND AGENCIES,

https://www.usa.gov/agencies/united-states-institute-of-peace (last visited May 18, 2025) (the

GSA website with a list of “government departments and agencies,” including USIP); Pls.’

SUMF, Ex. 23, The United States Government Manual current edition (“USG Manual”), ECF

No. 20-23 (including USIP). But cf. Pls.’ Mem. at 22-23 (noting that USIP is classified outside

of the Executive branch, as a quasi-official agency, in that manual). Finally, defendants rely on

Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 399 (1995), where the Supreme

Court held that Amtrak—despite being a for-profit corporation and expressly identified in its

organic statute as “not an agency or establishment of the United States government”—is part of

the government for purposes of the First Amendment, to argue that USIP should be treated the

same here. Defs.’ Opp’n at 12-13.

Plaintiffs, on the other hand, avoid answering in their briefing whether “USIP might for

certain purposes properly be considered part of the government writ large,” Pls.’ Mem. at 16,

though acknowledging the complexity of that question, given the vast array of corporations

formed by the federal government yet operating independently, see id. at 15-16. 9 At the hearing,

however, plaintiffs took the emphatic position that USIP is not part of the federal government.

See XMSJ Hr’g Tr. at 8:6-8. Regardless, both in their briefing and at the hearing, plaintiffs insist

that USIP is not part of the Executive branch and not subject to the President’s Article II power.

Id. at 16.

9
A non-answer on the issue of whether USIP is part of the federal government does not constitute a
concession, contrary to defendants’ insistence. See Defs.’ Reply at 12; see also Pls.’ Opp’n at 9 (“Defendants are
simply wrong when they suggest that . . . Plaintiffs ‘concede’ that USIP is ‘part of the federal government.’ . . .
Instead, Plaintiffs submit that Defendants’ attempt to categorize USIP as part of the federal government in a general
sense is both overly simplistic and beside the point.”).

34
Plaintiffs are correct that even if USIP is part of the government for constitutional

purposes, as relevant here, that will not resolve the key question—whether USIP exercises

executive power and is part of the Executive branch. If USIP is not part of the government for

such purposes, however, USIP cannot be part of the Executive branch. See Kim v. FINRA, Inc.,

698 F. Supp. 3d 147, 163 (D.D.C. 2023) (“Because FINRA is likely not a state actor, Plaintiff’s

Article II [appointments and removal] challenges are unlikely to succeed.”). Courts, thus, often

begin with the threshold inquiry whether an entity should properly be considered part of the

federal government before determining its placement in the federal constitutional scheme. See,

e.g., id. at 162-63. In Free Enterprise Fund, 561 U.S. 477, the Supreme Court considered a

challenge to the double for-cause removal protections provided to members of the PCAOB, a

non-profit corporation whose members and employees are not considered government officers or

employees for statutory purposes. Id. at 484. The Court first established that “the parties

agree[d] that the Board is ‘part of the Government’ for constitutional purposes, and that its

members are ‘Officers of the United States’ who ‘exercise significant authority pursuant to the

laws of the United States’” before explaining that PCAOB operates as a subordinate to the

Securities and Exchange Commission (“SEC”), id. at 485-86 (internal citation omitted) (first

quoting Lebron, 513 U.S. at 397; and then quoting Buckley v. Valeo, 424 U.S. 1, 125-26 (1976)),

which would make the Board part of the Executive branch, and then continuing to the merits of

the claims challenging the statutory for-cause removal restrictions on presidential power.

Turning first, therefore, to this threshold question, for the reasons explained below, the Court

concludes that USIP acts as part of the federal government for constitutional, separation-of-

powers purposes.

a. Diversity of Congressionally Created Entities

35
As a general matter, USIP, like many other congressionally created corporations, has

both governmental and nongovernmental qualities—appropriately termed a “hybrid” or

“boundary” organization. KEVIN R. KOSAR, CONG. RSCH. SERV., RL30533, THE QUASI

GOVERNMENT: HYBRID ORGANIZATIONS WITH BOTH GOVERNMENT AND PRIVATE SECTOR LEGAL

CHARACTERISTICS (2011), https://sgp.fas.org/crs/misc/RL30533.pdf; Anne Joseph O’Connell,

Bureaucracy at the Boundary, 162 U. PA. L. REV. 841 (2014). Such organizations exist on a

spectrum, ranging from some entities created to be more privately operated, separate and

independent of the federal government, and others more closely operationally linked so as in fact

to be part of the federal government.

At the more private end of the spectrum, Congress has chartered both for-profit and

nonprofit entities that exist nearly entirely independently of the government. Congress

established Howard University, for instance, in the 1800s. An Act to Incorporate Howard

University in the District of Columbia, 14 Stat. 438 (1867); see also Pls.’ Mem. at 15. Howard

received federal appropriations at the time, and still receives grants today, but has always been

privately managed by trustees not selected by the government.

Congress has also chartered (largely in the twentieth century) nearly one hundred

nonprofit corporations under Title 36—housing “patriotic and national organizations”—that are

similarly independent. See 36 U.S.C. § 20101 et seq.; Pls.’ Opp’n at 2, 6 (referencing Title 36

organizations); Defs.’ Reply at 15. These include well-known entities such as the Boy Scouts of

America, see id. § 30901 (“Boy Scouts of America . . . is a body corporate and politic of the

District of Columbia.”); the United States Olympic and Paralympic Committee, 36 U.S.C.

§ 220502 (“The corporation is a federally chartered corporation.”); and the American National

Red Cross, id. § 300101(a) (“The American National Red Cross . . . is a Federally chartered

36
instrumentality of the United States and a body corporate and politic in the District of

Columbia.”). The “federal designation” is largely “honorific” as they “do not receive direct

appropriations, they exercise no federal powers, their debts are not covered by the full faith and

credit of the United States, and they do not enjoy original jurisdiction in the federal courts.”

O’Connell, supra, at 860 (quoting Kosar, supra, at 23). They are generally managed by boards

of directors or governors without government interference and are merely required to make

annual reports to Congress on their activities and share their accounting audits. See, e.g., 36

U.S.C. § 300104 (establishing a private Board of Governors for the American Red Cross); id.

§ 220504 (establishing a private board of directors for the U.S. Olympic Committee); id. § 10101

(audits); id. § 30908 (annual report on activities). 10

Other largely independent but still hybrid organizations are not created by Congress at

all. FINRA, for instance, is a self-regulatory organization that performs a “supervisory role over

the securities industry, subject to oversight from the SEC,” per 15 U.S.C. § 78s. Scottsdale

Capital Advisors Corp. v. FINRA, Inc., 678 F. Supp. 3d 88, 94 (D.D.C. 2023), reversed in part

sub nom. Alpine Sec. Corp. v. FINRA, Inc., 121 F.4th 1314 (D.C. Cir. 2024). Structurally,

FINRA is a Delaware not-for-profit corporation governed by a board of 22 people selected by

FINRA’s members and not appointed by any governmental official. Id. at 95. FINRA is also

funded privately—via membership fees, fines, penalties, and sanctions. Id.

10
Congress has also chartered independent for-profit corporations. Comsat is a classic example. In 1962,
Congress chartered the Communications Satellite Corporation as a private corporation under the District of
Columbia Business Corporation Act. Communications Satellite Act of 1962, Pub. L. No. 87-624, sec. 102(c), 76
Stat. 419 (describing it as a “private corporation”); Lebron, 513 U.S. at 390-91. Comsat was “capitalized entirely
with private funds,” and “controlled by its private shareholders.” Lebron, 513 U.S. at 390-91. Despite clearly
operating in the private sector, being explicitly designated as “not . . . an agency or establishment of the United
States Government,” and having private shareholders, Comsat’s leadership was influenced by the federal
government: The President appointed incorporators to serve as the initial board of directors and thereafter appointed
a small minority (three) of the fifteen directors on the board. See id.; 76 Stat. at 423-24, sec. 301-304.

37
Moving along the spectrum toward organizations with closer ties to the federal

government, Congress has chartered corporations that exist mostly in the private sector—

“unhindered by the restraints of bureaucracy and politics”—but are subject to greater

governmental control via presidential appointment of their leadership. Lebron, 513 U.S. at 391.

For instance, the Corporation for Public Broadcasting was chartered in 1967 as a “nonprofit

corporation,” “not . . . an agency or establishment of the United States Government,” but

managed by a board of directors appointed by the President, with advice and consent of the

Senate. 47 U.S.C. § 396(b)-(c)(1); Lebron, 513 U.S. at 391. Likewise, the Legal Services

Corporation, which “provid[es] financial support for legal assistance in noncriminal

proceedings” to the indigent, was established as a “private nonmembership nonprofit

corporation” but whose eleven board of directors are “appointed by the President, by and with

advice and consent of the Senate.” 42 U.S.C. §§ 2996b(a)-2996c(a); Lebron, 513 U.S. at 391.

Similarly, Amtrak is a for-profit Congressionally created corporation, “not a department, agency,

or instrumentality of the United States Government,” 49 U.S.C. §§ 24301(a)(2)-(3), but its

leadership consists of a board of directors, the majority of whom are appointed by the President,

id. § 24302(a)(1).

The early banks of the United States were also of this hybrid character. The Second

Bank of the United States, the subject of McCulloch v. Maryland, 4 Wheat. 316 (1819),

incorporated in 1816, was owned in part by the United States, which held 20% of its stock, and

led in part by Presidential appointees—5 of the 25 directors were selected by the President, with

the rest to be elected by shareholders other than the United States. Lebron, 513 U.S. at 386-87.

Congress continued to create countless for-profit corporations—some controlled by the U.S.

Government (either via total stock ownership or the President’s appointment of the majority of

38
board members) and some not. See id. at 387-89. Such corporations proliferated throughout the

Great Depression and World War II eras, eventually leading to legislation providing for federal

audits of these corporations and dissolution of many. See id. at 388-90. 11

Closer to the interdependent-with-government end of the spectrum, some nonprofit

organizations exist within or as an adjunct to federal agencies. For instance, PCAOB is a

nonprofit corporation created by Congress to oversee public company auditing, expressly “not an

agency or establishment of the United States Government.” 15 U.S.C. § 7211(a)-(b). The

members of the Board are not “officer[s] or employee[s] of or agent[s] for the Federal

Government by reason of such service.” Id. § 7211(b). Yet, the Board is directly appointed and

overseen by the SEC, and the rules promulgated by the Board are subject to the SEC’s approval.

Free Enter. Fund, 561 U.S. at 484-85. The Supreme Court treated PCAOB as a part of the

Executive branch in analyzing the President’s constitutional removal authority over its Board

members. See id. at 484-85, 495, 508-09.

In short, the political branches have been creative in establishing or supporting entities

embodying varying degrees of independence from the federal government, as reflected in

statutory terms codifying express statements of independence, the extent of federal government

funding through appropriations or grants, government control through ownership or leadership

appointment, government oversight through auditing and reporting, and otherwise. This makes

distinguishing government entities from nongovernmental organizations a matter requiring a

case-by-case assessment.

b. Legal Framework

11
Fannie Mae, which provides mortgage-backed securities, was one such Depression-era corporation. As an
investor-owned publicly traded corporation, Fannie Mae operated largely independently until the economic collapse
in 2008, when Fannie Mae was placed into government conservatorship. See Kosar, supra, at 8-10.

39
An organization may be deemed a government entity for some purposes and not for

others. Sometimes Congress is explicit about an entity’s status for a particular statutory purpose.

For instance, Congress specified that PCAOB’s employees are not considered employees of the

federal government. See 15 U.S.C. § 7211 (“No member or person employed by . . . the Board

shall be deemed to be an officer or employee of . . . the Federal Government by reason of such

service.”). That provision makes clear that PCAOB employees are not subject to federal pay

scales. See Free Enter. Fund, 561 U.S. at 484-85 (“The Board can thus recruit its members and

employees from the private sector by paying salaries far above the standard Government pay

scale.”). Take, also, for example, the Legal Services Corporation, which is explicitly made

subject to FOIA and thus considered part of the government for purposes of responding to record

requests from the public. See 42 U.S.C. § 2996d(g).

Other times, however, Congress does not specify an entity’s status for a particular

purpose, and its general label—whether a “nonprofit corporation,” “federally chartered

instrumentality,” or “not an establishment of the federal government”—is not dispositive for all

purposes. 12 A case-by-case analysis based on the particular purpose is then required. Illustrative

of such an analysis is the D.C. Circuit’s consideration, in Dong v. Smithsonian Institute, 125 F.3d

877, 878-83 (D.C. Cir. 1997), of whether the Smithsonian Institution is an “agency” under the

Privacy Act based on that statute’s particular definition of “agency” and the features of the

Institution in its organic statute, leading to the conclusion that the Privacy Act did not apply. See

infra Part III.A.2.

12
The Congressional Research Service (“CRS”), in line with various academics, has sorted these entities into
categories based on their interaction and affiliation with the federal government and given them various labels—e.g.,
“government-sponsored enterprises” and “agency-related nonprofits.” Kosar, supra, at 7, 12. Those categories,
however, have limited legal significance and likewise do not shed light on whether an entity is considered
governmental for a particular purpose, let alone situated within the Executive branch.

40
Importantly, Congress’s label alone cannot dictate whether an entity is governmental for

constitutional purposes, which falls outside of Congress’s purview. In Lebron, the Supreme

Court explained that a statutory disavowal of a federal government status indeed “deprives

Amtrak of sovereign immunity from suit,” but a statute could not resolve “Amtrak’s status as a

Government entity for purposes of determining the constitutional rights of citizens affected by its

actions.” 513 U.S. at 392. As the Court later put it, “[c]ongressional pronouncements, though

instructive as to matters within Congress’ authority to address, are not dispositive of [a

corporation’s] status as a governmental entity for purposes of separation of powers analysis

under the Constitution.” Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. 43, 51 (2015) (internal

citations omitted).

Rather, for such constitutional questions, a corporation is part of the government when

the corporation satisfies three factors: “[(1)] the Government creates [the] corporation by special

law, [(2)] for furtherance of governmental objectives, and [(3)] retains for itself permanent

authority to appoint a majority of the directors for that corporation.” Herron v. Fannie Mae, 861

F.3d 160, 167 (D.C. Cir. 2017) (alterations in original) (quoting Lebron, 513 U.S. at 400). In

Lebron, the Supreme Court used that framework to hold that the First Amendment applied to

Amtrak. Amtrak was “established and organized under federal law for the very purpose of

pursuing federal governmental objectives, under the direction and control of federal government

appointees.” 513 U.S. at 398. Six of the corporation’s “eight externally named directors (the

ninth is named by a majority of the board itself) are appointed directly by the President of the

United States.” Id. at 397. Consequently, the Supreme Court concluded that Amtrak is a state

actor and “part of the Government” for the purposes of “individual rights guaranteed against the

Government by the Constitution.” Id. at 394, 398.

41
That same three-factor inquiry applies to constitutional separation-of-powers questions.

See Ass’n of Am. R.R., 575 U.S. at 55 (“[T]he structural principles secured by the separation of

powers protect the individual as well.” (quoting Bond v. United States, 564 U.S. 211, 222

(2011))). 13 The Supreme Court in Department of Transportation v. Association of American

Railroads considered a challenge to Amtrak’s authority to issue “metrics and standards”

addressing the “performance and scheduling of passenger railroad services” based on the ground

that Amtrak is a private entity and such authority was an unconstitutional private delegation of

power. Id. at 45. Without reaching the separation of powers or Appointments Clause questions

raised, the Supreme Court reversed the D.C. Circuit’s determination that Amtrak was a private

entity. Upon considering Amtrak’s creation, purpose, and control, the Court concluded that

“Amtrak acted as a governmental entity for purposes of the Constitution’s separation of powers

provisions,” explaining that “Amtrak was created by the Government, is controlled by the

Government, and operates for the Government’s benefit.” Id. at 53-54. 14

Specifically, regarding Amtrak’s creation and control, the Court examined its “ownership

and corporate structure,” noting as pertinent that the “Secretary of Transportation holds all of

Amtrak’s preferred stock and most of its common stock” and that Amtrak’s Board consists of

eight presidential appointees (of nine total members), for whom Congress carefully outlined

requirements for the President to consider, including experience in the transportation industry,

partisan balance, and consultation with leaders of both parties of Congress, and whose salaries

13
Neither side in this case cited in their briefing to Association of American Railroads, despite both parties
discussing Lebron. Given that Association of American Railroads builds upon Lebron in a context more relevant
here (separation of powers), its framework is instructive.
14
While the Supreme Court in neither Lebron, see 531 U.S. at 398, nor Association of American Railroads,
see 575 U.S. at 51-55, delineated its analysis into three discrete factors, though considering the same type of
qualities, the D.C. Circuit has distilled the analysis into such parts, see Herron, 861 F.3d at 167, and thus that
framework is adopted here.

42
are subject to congressional limits. Id. at 51-52. Regarding Amtrak’s objectives and

accountability, the Court noted the government’s “substantial, statutorily mandated supervision”

of Amtrak and observed that “rather than advancing its own private economic interests, Amtrak

is required to pursue numerous, additional goals defined by statute” in the government interest, is

required to make regular reports to Congress and the President, and is the subject of regular

congressional hearings. Id. at 52-53 (citing, e.g., the obligation to “provide efficient and

effective intercity passenger rail mobility,” 49 U.S.C. § 24101(b), and “provide reduced fares to

the disabled and elderly,” id. § 24307(a)). Importantly, Congress “has mandated certain aspects

of Amtrak’s day-to-day operations,” requiring consideration of specific factors when making

decisions, for instance, and Amtrak is “dependent on federal financial support.” Id. at 53. The

Court also noted that Amtrak is subject to “substantial transparency and accountability

mechanisms,” id. at 55, including being subject to FOIA and budget oversight and

“supervis[ion]” by the political branches and being required to maintain an inspector general as a

“designated Federal entity” “under the Inspector General Act.” Id. at 52-55. The Court

concluded because of Amtrak’s “significant ties to the Government” and the political branches’

“extensive[] supervis[ion] and substantial[] fund[ing]” of “its priorities, operations, and

decisions,” Amtrak acted “as a governmental entity” rather than “an autonomous private

enterprise.” Id. at 53.

c. Application to USIP

Applying this three-factor inquiry here, USIP is part of the federal government for

constitutional separation-of-powers purposes. Although USIP is statutorily defined as an

“independent nonprofit corporation,” 22 U.S.C. § 4603(b), “the practical reality of federal

control and supervision prevails over Congress’ disclaimer of” USIP’s status, Ass’n of Am. R.R.,

43
575 U.S. at 55. 15 First, USIP was created by special statute, outlining the goals, structure, and

obligations of the organization. See Herron, 861 F.3d at 167; Lebron, 513 U.S. at 397. Neither

plaintiffs nor defendants seem to dispute that basic premise.

Second, that statute makes clear USIP’s purpose to achieve governmental objectives

through articulated activities that are monitored by Congress. See Lebron, 513 U.S. at 397;

Ass’n of Am. R.R., 575 U.S. at 52-53. In the section of USIP’s organic statute entitled

“Congressional declaration of findings and purposes,” Congress described “a national need to

examine” various “disciplines” “to bring together and develop new and tested techniques to

promote peaceful economic, political, social, and cultural relations in the world” and recognized

“a need for Federal leadership to expand and support the existing international peace and conflict

resolution efforts of the Nation and to develop new comprehensive peace education and training

programs, basic and applied research projects, and programs providing peace information.” 22

U.S.C. § 4601(a)(4), (6). Congress explained that the statute aimed to establish a “national

institute to serve the people and the government through the widest possible range of education

and training, basic and applied research opportunities, and peace information services.” Id.

§ 4601(b). In the section entitled “powers and duties,” Congress offered ten specific activities

for the Institute to carry out, ranging from broad (“enter into formal and informal relationships

with other institutions”) to highly specific (“establish a Jennings Randolph Program for

International Peace and appoint, for periods up to two years, scholars and leaders in peace”). Id.

§ 4604(b)(1), (4). That same section also instructs a specific award that USIP should make every

15
For the same reason, USIP’s own definition cannot be dispositive of its status. See Sr. Officials’ Amicus
Br. at 5 (citing USIP’s 2020-2022 Strategic Plan: “USIP’s distinct status—as formally independent but with a
special link to the U.S. government—enables [it] to serve as a trusted connector among foreign governments, civil
societies, and U.S. government officials”); see also Pls.’ Opp’n at 13 (citing USIP’s biennial reports that emphasize
the Institute’s independence).

44
year and describes the kind of “extension and outreach activities” the Institute should engage in.

Id. § 4604(c), (d).

USIP certainly has broad discretion in carrying out these activities, since much of the

language used by Congress is permissive, e.g., id. § 4604(b) (“The Institute, acting through the

Board, may—”), and Congress does not set specific deadlines, metrics, or mechanisms to

monitor success or dictate day-to-day operations. USIP’s Board, as plaintiffs point out, chooses

its own projects and initiatives, independent of the government, based on the Institute’s

priorities. See Pls.’ Opp’n at 22-23; Third Moose Decl. ¶¶ 9-12 (“When foreign governments or

other organizations contact USIP to work together on projects, we do not obtain U.S.

government approval when agreeing to undertake these activities. Again, if they align with

USIP’s mission and we have the capacity to engage with these groups, we may do so.”). By

contrast, Amtrak’s statute is more specific, setting out a list of “priorities in selecting and

scheduling projects,” mandating maintenance of specific rails, and dictating certain procurement

requirements, as the Supreme Court noted in Association of American Railroads. 575 U.S. at 53;

49 U.S.C. § 24902(b).

Congress nevertheless makes clear USIP’s objectives and ensures that USIP’s activities

are furthering governmental aims. In addition to suggesting certain award and fellowship

programs, in § 4604(b)-(c), Congress has specifically instructed USIP to develop the Gandhi-

King Global Academy, Pub. L. 116-260, 134 Stat. 3115, sec. 334 (2020). Further, Congress

maintains oversight over USIP through the annual appropriations process, which much like

Amtrak, see 575 U.S. at 53, the Institute relies on substantially for its funding, see 22 U.S.C.

§§ 4609(a), 4604(h)(3) (private funds may only be used for the development and maintenance of

its headquarters or other facilities and for hospitality purposes). USIP’s ongoing use of “United

45
States,” “U.S.,” or any other reference to the United States government in its name, seal, or

emblem is also contingent on these annual appropriations, demonstrating that USIP was designed

to, at least in significant part, further the country’s interests and is subject to ongoing review of

that goal. See id. § 4603(b). Finally, USIP is subject to the similar “transparency and

accountability mechanisms” as Amtrak, 575 U.S. at 55: FOIA, 22 U.S.C. § 4607(i), including

congressional determination of its budget with input from OMB, id. § 4609; id. § 4608(a), and

regular reports to Congress and the President, id. § 4611. 16 USIP is also required to publish

notice of its Board meetings and invited to do so in the Federal Register. Id. § 4605(h)(3).

Plaintiffs argue that USIP was intended to “stand apart from the policymaking branches

and act as a resource to strengthen the work not just of the U.S. government, but also of ‘existing

institutions providing programs in international affairs, diplomacy, conflict resolution, and peace

studies,’ as well as ‘government, private enterprise, and voluntary associations,’” Pls.’ Opp’n at

12 (quoting 22 U.S.C. § 4601(a)(5)), suggesting that USIP’s creation was not “in furtherance of

governmental objectives,” Herron, 861 F.3d at 167. The existence of additional aims does not

undercut the coexistent governmental purpose of USIP, made apparent in the same section of the

statute. 22 U.S.C. § 4601(b) (describing the purpose of USIP to “serve the people and the

Government”). Moreover, plaintiffs’ point that USIP’s Board has fiduciary duties to the Institute

and not any political branch does not conflict with USIP’s overall governmental purpose. Pls.’

Opp’n at 14; Pls.’ Mem. at 17-18. Amtrak’s board members likewise have fiduciary duties to the

corporation but both entities exercise those duties in ways consistent with the statutory

16
Like Amtrak, USIP is also designated as a “federal entity” under the Inspector General Act, see 5 U.S.C.
§ 415(a)(2), e.g., List of Designated Federal Entities & Federal Entities, 59 Fed. Reg. 43598, 43599 (Aug. 24, 1994);
Defs.’ Opp’n at 11. This fact is not probative, however, considering that USIP is audited by a private accounting
firm, not an Inspector General, and USIP was included from 1994 to 2014 but seemingly not before or after. See
Pls.’ Opp’n at 17; Pls.’ SUMF ¶ 33.

46
governmental mandates. See Lebron, 513 U.S. at 397 (noting that the corporate form does not

allow the corporation to evade its governmental obligations).

Third, USIP is subject to government ownership and control in the relevant sense. See

Ass’n for Am. R.R., 575 U.S. at 51-52. The government “retains for itself permanent authority to

appoint a majority of the directors” of USIP. Herron, 861 F.3d at 167. In fact, the President

appoints all of USIP’s voting Board members with advice and consent of the Senate (the three ex

officio members who are appointed for other positions and the twelve specifically for USIP’s

Board); the only other Board member, the president of USIP, who does not vote, is selected by

the fifteen appointed Board members. See 22 U.S.C. §§ 4605(b), 4606(a). Much like the

Amtrak board members, the USIP Board members are to be selected, in part, based on their

expertise and experience in the area and to create a partisan balance. 22 U.S.C. § 4605(c)-(d);

Ass’n of Am. R.R., 575 U.S. at 51-52 (noting those factors as consistent with governmental

control). USIP also, while functionally independent, is owned by the government in the sense

that the organization cannot issue stock to be owned by anyone else, 22 U.S.C. § 4603(b), and

cannot dissolve itself, id. § 4604(a), and, if dissolved, its assets would go to the U.S. Treasury,

id. § 4610. 17 In short, USIP “was created by the Government, is controlled by the Government,

and operates for the Government’s benefit.” Ass’n of Am. R.R., 575 U.S. at 53.

Plaintiffs point to an older Supreme Court case, San Francisco Arts & Athletics, Inc. v.

U.S. Olympic Committee (“USOC”), 483 U.S. 522 (1987), presumably to bolster the argument

that USIP falls outside of the federal government entirely. Pls.’ Opp’n at 6-7, 9-10. The Court

17
Plaintiffs contest the relevance of the reversion of funds to the Treasury upon dissolution, noting that “any
tax-exempt nonprofit organization that is dissolving” must “distribute its remaining assets only to another tax-
exempt organization . . ., or to the federal government, or to a state or local government.” Pls.’ Opp’n at 20. By this
measure of ownership, then, plaintiffs contend “the government (federal or state) would ‘own’ every single extant
tax-exempt nonprofit.” Id. Plaintiffs may be correct that this fact could not be dispositive, but the explicit notation
that USIP’s funds must revert to the Treasury—and not a state government or other nonprofit—weighs in favor of
viewing the Institute as a governmental entity.

47
there considered whether the Olympic Committee was subject to the Fifth Amendment when the

Committee took steps to protect its intellectual property. After noting that the Committee had a

corporate charter and received some governmental funding, neither of which were dispositive

characteristics of a governmental entity, the Court focused on whether the Committee performed

“functions that have been ‘traditionally the exclusive prerogative’ of the Federal Government.”

Id. at 544 (emphasis in original) (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982)).

The conduct and coordination of amateur sports were not “traditional government function[s],”

id. at 545, nor was the “choice of how to enforce its exclusive right to use the word ‘Olympic,’”

so the Committee was not considered a governmental actor, id. at 547. Indeed, as plaintiffs

emphasize, “USIP’s NGO functions in conflict resolution” are ones also performed by private

entities. Pls.’ Opp’n at 6-7. The functional test proposed in USOC, however, was not employed

in the later cases involving Amtrak, as plaintiffs readily admit. Pls.’ Opp’n at 10 (“A few years

later, the Supreme Court employed a different analysis, and barely cited U.S. Olympic

Committee, in determining that Amtrak was subject to the First Amendment when deciding what

advertisements could be displayed in New York’s Penn Station.”). For purposes of

constitutional separation-of-powers questions, Association of American Railroads is most on

point—and there, the “traditional[ly]” private or public nature of the corporation’s functions

were not dispositive.

Plaintiffs point to various other characteristics of USIP as relevant in discerning its

character and function, but none carry much weight for purposes of constitutional separation-of-

powers questions. Plaintiffs point out, for example, that Congress described USIP as a charitable

organization under the tax code, citing 26 U.S.C. § 170(c)(2)(B), which applies to 501(c)(3)

organizations, not public entities or political subdivisions. See Pls.’ Opp’n at 20-21. “If

48
Congress intended for the Institute to be owned by the ‘United States,’” plaintiffs argue, USIP

would not have been so classified. Id. at 21. Again, however, Congress’s classifications are not

controlling. Lebron and Association of American Railroads instruct courts to look to the

organization’s creation, structure, objectives, and degree of governmental control—a practical

inquiry—rather than statutory labels and categorizations. For that same reason, classifications by

other bodies, such as USIP’s classification by the U.S. Government Manual, a publication by the

Office of the Federal Register within the National Archives and Records Administration, and by

the Congressional Research Service, as “quasi-official,” are likewise unavailing for this purpose.

Pls.’ Mem. at 22-23; Pls.’ SUMF, Ex. 25, The United States Government Manual 2009/2010,

ECF No. 20-25 (noting that the Manual defines “quasi-official agency” as “not executive

agencies under the definition of 5 U.S.C. § 105 but are required by statute to publish certain

information on their programs and activities in the Federal Register”); see also USG Manual,

ECF No. 20-23; Kosar, supra, at 6 (noting that USIP is classified as a “quasi-official agency”

under the Government Manual and noting that Amtrak likewise used to have that same

descriptor). 18

Plaintiffs also note that USIP lacks sovereign immunity and is a distinct legal entity.

Pls.’ Mem. at 3; Pls.’ Opp’n at 11-12; 22 U.S.C. §§ 4603(d), 4604(k). Again, those are statutory

determinations that do not resolve the entity’s constitutional status, as the Court in Lebron

explained. See 513 U.S. at 392 (Congress’ “statutory disavowal of Amtrak’s agency status

deprive[d] Amtrak of sovereign immunity from suit” but did not resolve Amtrak’s status for

constitutional purposes).

18
Even less probative, then, is the fact that USIP’s former website—which now appears defunct—used a
“.org” instead of a “.gov” domain name. See Terminated Emps. Amicus Br. at 5.

49
Finally, plaintiffs emphasize that USIP’s Board members and employees are not

employees or officers of the U.S. government, except for purposes of the FTCA and certain

compensation and benefits purposes. 22 U.S.C. § 4606(f)(1); Pls.’ Mem. at 17; Pls.’ Opp’n at

12, 15-16. The statute, in fact, says this twice, also separately emphasizing that “officers and

employees of the United States Government may not be appointed to the Board.” 22 U.S.C.

§ 4605(d)(2). Further, USIP employees are paid on a private payroll, Pls.’ Add’l SUMF ¶ 12,

ECF No. 34-1, receive privately administered benefits, Pls.’ Opp’n Exhibits, Ex. 5, Exec. Office

of the President Memo re: Employee Benefits Coverage (Mar. 11, 1988), ECF No. 34-7; Pls.’

Opp’n at 12 & n.6 (explaining that 5 U.S.C. § 8914 precluded nongovernmental employees from

receiving federal benefits); Pls.’ Add’l SUMF ¶ 13, and their salaries are guided—not

mandated—by statute, at least per a 1987 OPM memo, Pls.’ Opp’n, Ex. 4, OPM Memo (Oct. 2,

1987), ECF No. 34-6. USIP employees do not take an oath of office or receive government

personnel forms. See Terminated Emps. Amicus Br. at 8.

Again, Congress’s disavowal of governmental employee status has important statutory

implications but cannot dictate whether USIP operates as a governmental entity under the

Constitution. See Lebron, 513 U.S. at 592. PCAOB’s Board members and other employees are

not “officer[s] or employee[s] or agent[s] for the Federal Government” either. 15 U.S.C.

§ 7211(b). Though the Court in Free Enterprise did not have to consider that fact because the

parties agreed that “the Board is ‘part of the government’ for constitutional purposes, . . . and

that its members are ‘Officers of the United States’” for such purposes, 561 U.S. at 485-86, the

Court interpreted § 7211(b) as describing employees’ status only “for statutory purposes” id. at

485-86 (“[d]espite the provisions specifying that Board members are not Government officials

50
for statutory purposes” (emphasis added)), seemingly recognizing that section’s limited

relevance to the constitutional separation-of-powers inquiry.

Plaintiffs’ statutory arguments thus cannot avoid the key characteristics that make USIP

part of the federal government for constitutional separation-of-powers purposes.

2. USIP is Not Part of the Executive Branch.

As stated earlier, a threshold finding that USIP is a government entity does not resolve

the case. Given that defendants have offered no theory of why the President would have

constitutional authority unilaterally to remove USIP Board members if they are not part of the

Executive branch and do not exercise executive power, the determination that USIP may be a

governmental entity is insufficient. The ultimate question remains—whether USIP is subject to

the President’s Article II removal authority. 19

This question is not resolved easily by analogous precedent. Despite concluding that

Amtrak was a government entity, the Supreme Court did not make any finding as to whether

Amtrak was in the Executive branch in either Lebron, 513 U.S. 374, or Association of American

Railroads, 575 U.S. 43, nor did the D.C. Circuit on remand of American Railroads, despite

resolving the Due Process and Appointments Clause issues at hand. See generally Ass’n of Am.

R.R. v. Dep’t of Transp., 821 F.3d 19 (D.C. Cir. 2016) (holding that Amtrak’s power to regulate

19
As plaintiffs point out, Collins, 594 U.S. 220, supports the point that for questions about the President’s
removal powers, a determination that an entity is merely part of the federal government is insufficient and what
matters is whether that entity is part of the Executive branch. See Pls.’ Opp’n at 11. In Collins, the Supreme Court
considered whether a for-cause removal restriction on a single leader of an agency (the Federal Housing Finance
Agency (“FHFA”)) was constitutional. An amicus raised the argument that the director of the FHFA acted as a
private party when conducting its role as a conservator or receiver and on this basis, Congress could limit the
President’s removal authority. See id. at 254. Without suggesting that the President could exercise removal
authority over entities acting in a private capacity or even within the government but outside of Article II, the Court
instead reasoned that the particular way in which the director acts as a receiver is through “implementation of a
legislative mandate,” which is the “very essence of ‘execution’ of the law,” so “the FHFA clearly exercises
executive power” and the President’s constitutional removal authority applied. Id. (quoting Bowsher v. Synar, 478
U.S. 714, 733 (1986)).

51
its competitors violated the Due Process Clause and that the arbitrator appointed to resolve

rulemaking disagreements between Amtrak and the Federal Railroad Administration was an

“Officer” under the Constitution); see also Ass’n of Am. R.R. v. Dep’t of Transp., 896 F.3d 539

(D.C. Cir. 2018) (reviewing, on a second appeal, the propriety of the remedy for the

constitutional violations). 20 In Dong, the D.C. Circuit implicitly assumed the Smithsonian

Institute was a government entity to conclude it was not an Executive branch agency for the

narrow purpose of the statutory definition in the Privacy Act, without further consideration of

whether the Smithsonian is subject to Article II for other purposes. See 125 F.3d at 883.

For defendants, the answer to whether USIP is part of the Executive branch flows easily

from the answer to the threshold issue: USIP is part of the federal government and does not

exercise legislative or judicial power. Defs.’ Opp’n 13-14. Based on the assumption that “[a]

component of the federal government must fall into one of three branches,” defendants use

process-of-elimination reasoning to conclude that USIP must be part of the Executive branch.

Id. Defendants argue as an additional point that USIP, in fact, exercises core executive powers.

20
To be more specific, the D.C. Circuit on remand held that the Passenger Rail Investment and Improvement
Act (“PRIIA”) “violates the Fifth Amendment's Due Process Clause by authorizing an economically self-interested
actor to regulate its competitors.” 821 F.3d at 23. The PRIIA provision at issue “task[ed] Amtrak and the Federal
Railroad Administration (FRA) with jointly developing performance metrics and standards,” problematically
providing “a means of enforcing Amtrak’s statutory priority over other trains”—i.e., over its competitors. Id. This
discussion did not opine on whether Amtrak is part of the Executive branch, explaining only that just because
Amtrak is not an autonomous private enterprise does not mean it is not economically self-interested. See id. at 31-
32. The court made a single passing comment that the FRA and Amtrak are “subdivisions in the same branch,” 821
F.3d at 35, which might be read to suggest they both belong to the Executive branch, but the court did not engage in
further analysis. The D.C. Circuit further held that the PRIIA violates the Appointments Clause for delegating
regulatory power to an improperly appointed arbitrator, who, as a principal officer could not be appointed by the
Surface Transportation Board, but rather had to be appointed by the President. See id. at 39. While describing
Amtrak and the FRA’s joint rulemaking as “agency action” might suggest Amtrak is part of Article II, the court
never went so far as to say that. Id. The court merely held that the arbitrator role described in the statute was a
principal “Officer” under the Constitution and thus could not be appointed by a mere head of a department. See id.
The D.C. Circuit’s second post-remand opinion likewise did not opine on whether Amtrak is part of the
Executive branch. See 896 F.3d 539. A sole comment may imply that the opinion so assumed: “Finally, the
dissenting opinion notes that the Administration is housed ‘in the same branch’ of an Executive agency as Amtrak.
Dissent Op. at 557.” 896 F.3d at 548. Again, the court engaged in no further discussion on that point.

52
See id. at 14-16. At first blush, this reasoning has attraction, but closer scrutiny reveals that both

defendants’ assumption and their analysis of USIP’s powers are flawed.

a. Exclusivity of Three Branches of the Federal Government

Defendants’ assumption that every federal entity falls neatly within one branch is not

correct. Federal entities may be classified as legislative for one purpose but treated as executive

for others. For instance, the Government Accountability Office (“GAO”), led by the

Comptroller General, is generally part of the Legislative branch. GAO is explicitly described as

“an instrumentality of the United States Government independent of the executive departments,”

31 U.S.C. § 702(a), “part of the legislative branch,” Reorganization Act of 1949, Pub. L. No. 81-

109, sec. 7, 63 Stat. 203, 205, and “an agent of Congress,” Accounting and Auditing Act of

1950, Pub. L. No. 81-784, ch. 946, sec. 111(d), 64 Stat. 832, 835. Consequently, in Bowsher v.

Synar, 478 U.S. 714 (1986), the Supreme Court held that as part of the Legislative branch for

constitutional purposes, the Comptroller General could not exercise executive powers under the

Constitution, so his apparent authority to implement a statute determining certain budget

calculations and to dictate budgetary cuts in the presidential budget request was invalid. See id.

at 733-736. Nonetheless, the definition of “executive agency,” under 5 U.S.C. § 105, which

applies to the APA and other statutes governing executive agencies, explicitly includes GAO.

See id. § 104(2) (including GAO as an “independent establishment,” which is one type of

executive agency).

As with the first threshold question of whether USIP is part of the federal government, all

that matters here is how USIP is classified for constitutional separation-of-powers purposes (not

any statutory purposes), but that too can be a complicated inquiry, given that a single entity may

exercise multiple different types of authority and “governmental power cannot always be readily

characterized with only one . . . labe[l].” Mistretta v. United States, 488 U.S. 361, 393 (1989)
53
(alterations in original) (quoting Bowsher, 478 U.S. at 749 (Stevens, J., concurring in the

judgment)). Executive branch entities, for instance, may carry out adjudicative, rulemaking, and

enforcement functions, which courts have labeled in various ways. See, e.g., Seila L., 591 U.S.

at 216-17 (describing how Humphrey’s Executor upheld removal restrictions for multimember

Executive branch entities, like the Federal Trade Commission (“FTC”), with “‘quasi-judicial’ or

‘quasi-legislative’ functions”); id. at 216 n.2 (describing those functions as fundamentally

“executive” under the Constitution); Wilcox v. Trump, -- F. Supp. 3d --, 2025 WL 720914, at *7

(D.D.C. Mar. 6, 2025) (describing such quasi-judicial and quasi-legislative powers of the

National Labor Relations Board (“NLRB”)). A Judicial branch entity may also carry out

rulemaking functions, in lieu of any “judicial power” at all. See Mistretta, 488 U.S. at 384-97

(describing the U.S. Sentencing Commission and holding that it is part of the Judicial branch for

a constitutional separation-of-powers analysis); 28 U.S.C. § 991(a) (“There is established as an

independent commission in the judicial branch of the United States a United States Sentencing

Commission.”). The Vice President, too, though not an entity per se, explicitly carries out cross-

branch duties, acting as both an aide to the President and the President of the Senate. See U.S.

CONST. art. I, § 3, cl. 4; see generally Roy E. Brownell II, A Constitutional Chameleon: The Vice

President’s Place Within the American System of Separation of Powers, 24 KAN. J.L. & PUB.

POL’Y 1 (2014). Despite the importance of separation of powers into separate branches, the

Supreme Court has recognized “that our constitutional system imposes upon the Branches a

degree of overlapping responsibility, a duty of interdependence as well as independence the

absence of which ‘would preclude the establishment of a Nation capable of governing itself

effectively.’” Mistretta, 488 U.S. at 381 (quoting Buckley, 424 U.S. at 121).

54
Further, not every federal government entity sits within a particular branch at all. The

grand jury, for example, is an independent entity “not . . . textually assigned . . . to any of the

branches described in the first three Articles.” United States v. Williams, 504 U.S. 36, 47 (1992).

Though the grand jury operates “under judicial auspices,” the Supreme Court has described its

“institutional relationship with the Judicial Branch” as one “at arm’s length,” characterized by

only very limited “power . . . to fashion . . . rules of grand jury procedure” and call the jurors

together and administer their oaths. Id. at 47, 50. The Supreme Court has also stated that

Congress can create “‘offices’ in the generic sense and provide such method of appointment to

those ‘offices’ as it chooses” without the leaders being “Officers of the United States” under

Article II of the Constitution (providing for presidential appointment of such officers, see U.S.

CONST. art. II, § 2, cl. 2), if they operate in an area “removed from the administration and

enforcement of the public law” or “perform duties only in aid of those functions that Congress

may carry out by itself.” Buckley, 424 U.S. at 138-39; see also id. at 139-41 (holding that the

Federal Election Commission, whose members were not appointed by the President, could not

administer the statute through rulemaking, determinations of eligibility for funds, advisory

opinions, enforcement actions, etc.).

Plaintiffs point to the Smithsonian Institution as an example of a government

establishment that cannot easily reside within any of the three branches. See Pls.’ Opp’n at 7-8.

Indeed, both parties seem to agree that the Smithsonian Institution does not exercise executive

power, see id.; Defs.’ Opp’n at 23, but also does not engage in adjudications or rulemaking, see

Pls.’ Opp’n at 7. Its leadership also comes from all three branches—its Board of Regents

includes members of Congress, the Chief Justice, and the Vice President. See 20 U.S.C. § 42(a).

While no case has held that the Smithsonian Institution does or does not fall into one of the

55
tripartite branches under the Constitution, that example counsels caution in understanding all

congressionally created or chartered entities that may be considered part of the federal

government to fall necessarily within one of the first three Articles.

Put simply, entities that perform nongovernmental functions or functions distinct from

the three branches (like the grand jury), do not necessarily reside within a particular branch of

the federal government.

Defendants’ arguments to the contrary are unpersuasive. To begin, defendants stick to

the assumption that all government entities must fall within one of the three branches, painting

the grand jury as an anomaly and the Smithsonian Institution as an “exceedingly rare”

“exception[],” and citing cases that emphasize the separation of the three branches. XMSJ Hr’g

Tr. at 80:23-81:22 (suggesting the Smithsonian was one of the rare entities “intended to be

outside of the three branches”); Defs.’ Reply at 2-6. Defendants are correct that the three

branches are separate, such that legislative power is not generally exercised by the Executive

branch and vice versa. See Defs.’ Reply at 3-6. Yet, defendants’ cases emphasizing such

differentiation among the branches say nothing about entities that exercise nongovernmental—

non-legislative, non-judicial, and non-executive—powers. See id. at 4-5 (citing Buckley, 424

U.S. at 138-139, which, in defendants’ own terms, reinforces the uncontroversial “need for

government components exercising executive authorities to be located in the Executive

Branch”); id. at 5-6 (citing Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft

Noise, Inc., 501 U.S. 252, 274 (1991), which merely reiterated that the Legislative branch cannot

exercise executive powers); id. at 6 (citing INS v. Chadha, 462 U.S. 919, 951 (1983), which

simply emphasized that the government was divided into three categories and each branch must

remain confined to its category).

56
Defendants point to Springer v. Government of the Philippine Islands, 2

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11053171. Public record. Not legal advice.