Common Legislative Encroachments On Executive Branch Authority

Common Legislative Encroachments

On Executive Branch Authority

This memorandum lists and briefly discusses a variety of common provisions of legislation

that are offensive to principles of separation of powers, and to executive power in par­

ticular, from the standpoint of policy or constitutional law.

July 27, 1989

M e m o r a n d u m O p in io n fo r t h e G e n e r a l C o u n s e l s ’ C on su lt at iv e G r o u p *

This memorandum provides an overview of the ways Congress most

often intrudes or attempts to intrude into the functions and responsibili­

ties assigned by the Constitution to the executive branch. It highlights ten

types o f legislative provisions commonly included in proposed legislation

that weaken the Presidency. It is important that all o f us be familiar with

each o f these forms of encroachment on the executive’s constitutional

authority. Only by consistently and forcefully resisting such congression­

al incursions can executive branch prerogatives be preserved. Of course,

the methods o f intruding on executive power are limited only by Con­

gress’s imagination; thus, our ten examples are illustrative rather than

exhaustive. This Office is always pleased to assist in reviewing legislation

for any possible encroachments on the President’s authority.

1. Interference with the President’s Appointment Power

The Appointments Clause is an essential aspect o f separation o f pow­

ers. By permitting the President or his direct subordinates to appoint the

officials within the executive branch, the Appointments Clause helps

ensure that those who make policy are accountable to the President.

a. The Appointments, Incompatibility and Ineligibility Clauses

The Appointments Clause o f the Constitution, Article II, Section 2,

Clause 2, provides that “Officers o f the United States” must be appointed

by the President with the advice and consent o f the Senate, or, where

^ E d ito rs N o t e : This memorandum has been superseded See Memorandum for the General Counsels

o f the Federal Governm ent from Walter Dellinger, Assistant Attorney General, O ffice o f Legal Counsel,

R e - The Con stitu tion al Separation o f P o w e r s between the Pt'esident and Congress 1 n.l (May 7, 1996)

(to be published).

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authorized by Congress, by the President alone, the courts, or the Heads

o f Departments. These methods o f appointment are exclusive; officers of

the United States therefore cannot be appointed by Congress, or by con­

gressional officers. Buckley v. Valeo, 424 U.S. 1, 126, 141 (1976) (per curi­

am). Moreover, the scope o f the term “officer” is broad: anyone who

“exercis[es] significant authority pursuant to the laws o f the United

States” or who performs “a significant governmental duty ... pursuant to”

the laws o f the United States is an officer o f the United States, Buckley v.

Valeo, 424 U.S. at 126, 141, and therefore must be appointed pursuant to

the Appointments Clause.

Notwithstanding the requirements o f the Appointments Clause,

Congress frequently establishes and directs commissions, agencies,

boards, and other entities to perform operational responsibilities, and

requires appointment o f their members in a manner incompatible with

the Appointments Clause. President Reagan repeatedly had to stress, in

signing bills into law, that such commissions may perform only advisory,

investigative, informative, or ceremonial functions and may not perform

regulatory, enforcement, or other executive responsibilities.1

Similar problems have frequently arisen in connection with commem­

orative commissions, where the violation o f the Appointments Clause fre­

quently has been compounded by making Members o f the Senate or

House members o f those commissions, in violation o f the Incompatibility

Clause o f the Constitution, Article I, Section 6, Clause 2. Pursuant to that

Clause, no person holding any office of the United States may be a

Member o f either House o f Congress.2 Members o f Congress may consti­

tutionally participate on such commissions only in an advisory or cere­

monial capacity.3 Where the members o f a commission appointed in vio­

lation o f the Appointments or Incompatibility Clauses constitute a

majority o f the Commission, the Commission itself may perform only

advisory or ceremonial functions.4 Any proposal to establish a new

Commission should be reviewed carefully to determine if its duties

include executive functions. If they do, the members o f the Commission

must be appointed pursuant to the Appointments Clause.

1An example o f such a signing statement relates to the United States Commission on Civil Rights A ct

o f Novem ber 30, 1983, 19 Weekly Comp Pres Doc. 1626, 1627 (1983).

2The appointment o f Members o f the Senate or the House to newly created positions also violates the

Ineligibility Clause, that part o f Article I, Section 6, Clause 2, pursuant to which “ [njo Senator or

Representative shall, dunng the Time for which he was elected, be appointed to any civil O ffice under

the Authority o f the United States, which shall have been created, or the Emoluments w hereof shall have

been increased dunng such time ”

3See, e g.f signing statement dated September 29,1983, relating to the establishment o f the Commission

on the Bicentennial o f the United States Constitution, 19 Weekly Comp. Pres Doc. 1362 (1983).

4 See, e g , signing statement dated August 27, 1984, relating to the establishment o f a Commission on

the Commemoration o f the First Legal Holiday Celebrating the Birth o f Martin Luther King, Jr., 20 Weekly

Comp Pres. Doc 1192 (1984).

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b. Other Inroads on the President’s Appointment Power

Congress also frequently imposes such significant limitations on whom

the President may appoint that Congress effectively makes the appoint­

ment itself. For example, Congress often legislatively directs the President

to nominate an official from among individuals named in lists submitted

by the Speaker o f the House and the President Pro Tempore of the Senate

or other officers o f Congress. Such requirements are an unconstitutional

attempt to share in the appointment authority which is textually commit­

ted to the President alone. The requirement that the President (or other

executive officials) appoint persons who will exercise significant authori­

ty under the laws o f the United States from lists submitted by State

Governors or other persons not appointed in accordance with the

Appointments Clause suffers from the same constitutional defect.5

Congress also imposes impermissible qualifications requirements on

principal officers. For instance, Congress will require that a fixed number of

members o f certain commissions be from a particular political party. These

requirements also violate the Appointments Clause. The only congressional

check that the Constitution places on the President’s power to appoint

“principal officers” is the advice and consent o f the Senate. As Justice

Kennedy recently wrote for himself and two other members o f the Court:

By its terms, the [Appointments] Clause divides the

appointment power into two separate spheres: the

President’s power to ‘nominate,’ and the Senate’s power to

give or withhold its ‘Advice and Consent.’ No role whatso­

ever is given either to the Senate or to Congress as a whole

in the process o f choosing the person who will be nominat­

ed for [the] appointment.

Public Citizen v. Department of Justice, 491 U.S. 440, 483 (1989)

(Kennedy, J., concurring).

c. Delegation o f Federal Executive Power

One o f the gravest new threats to executive branch power is Congress’s

growing penchant for assigning the executive power to persons who are

not part o f the executive branch. We believe the assignment o f such pow­

ers poses a substantial threat to the executive branch, regardless whether

the pow er is assigned to members o f the legislative branch, state officials,

or private citizens. The assignment o f such powers away from the execu­

tive branch necessarily weakens the executive branch in relation to the

5 In fact, a person w ho is given the authonty to draft such lists from which an appointment must be

made would be exercising significant authonty for purposes o f the Appointments Clause.

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legislative and judicial branches, and it raises substantial Appointments

Clause and other separation o f powers questions.

One current example o f Congress assigning executive branch power

can be found in the so-called “qui tam” provisions, such as those found in

the False Claims Act, 31 U.S.C. §§ 3729-3733. In these qui tam provisions,

Congress authorizes any person to prosecute — on behalf o f the United

States and in the name o f the United States — a civil fraud action for

treble damages and penalties against any person who allegedly makes a

false claim to the United States Government. The qui tam plaintiff is

empowered to sue on the Government’s behalf even if he has sustained

no personal iryury. As a bounty for prosecuting the fraud, the qui tam

plaintiff receives up to thirty percent o f any damages and penalties recov­

ered, with the balance paid into the United States Treasury.

We believe such provisions must be vigorously resisted. The power to

litigate the claims o f the United States is committed by the Constitution

to the executive branch. It is well established that “conducting civil liti­

gation in the courts o f the United States for vindicating public rights” is

at the core o f Executive power and “may be discharged only by persons

who are ‘Officers o f the United States’.” Buckley, 424 U.S. at 140 (empha­

sis added); see also United States v. San Jacinto Tin Co., 125 U.S. 273,

279 (1888) (the Attorney General “is undoubtedly the officer who has

charge o f the institution and conduct o f the pleas o f the United States,

and o f the litigation which is necessary to establish the rights o f the gov­

ernment”); Confiscation Cases, 74 U.S. (7 Wall.) 454, 458-59 (1868) ( “ [S]o

far as the interests o f the United States are concerned, [all suits] are sub­

ject to the direction, and within the control of, the Attorney General.”).

2. Hybrid Commissions

Congress often creates commissions composed o f members or

appointees o f the legislative and executive branches. These commissions

are not clearly a part o f either branch. As noted above, if the Commission

is to exercise significant authority, the Constitution requires that its mem­

bers be appointed pursuant to the Appointments Clause. Even if its func­

tions are merely advisory, however, we believe that the establishment o f

such hybrid commissions is inconsistent with the tripartite system o f gov­

ernment established by the framers o f our Constitution. Thus, the

Department o f Justice has frequently included in its bill comments the

following:

The creation o f a Commission that is not clearly legislative,

judicial, or executive, tends to erode the structural separa­

tion o f powers. As established by this bill, the Commission

could not be considered to be a part o f any o f the three

Branches and would be in the difficult position o f having to

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serve two masters. Although the Branches o f Government

are not “hermetically sealed” from one another, ( Immigra­

tion and Naturalization Service v. Chadha, 462 U.S. 921

(1983)), the separation o f powers suggests that each branch

maintain its separate identity, and that functions be clearly

assigned among the separate branches. The Commission

does not mesh with this constitutional structure.

In many instances, the problems created by a hybrid commission are

aggravated by the fact that the commission’s membership is to contain

more representatives of the legislative branch than o f the executive

branch. In such cases, the Department has to the imbalance, made an

additional objection in our bill comments to the following effect:

In any event, the representation on the Commission o f the

Executive and Legislative Branches lacks the proper balance.

According to the bill, the Commission would comprise one

member o f the Executive branch, twelve Members of

Congress, and five members from the private sector. In our

view, the proper relationship between the two co-equal

Branches would require that they be equally represented on a

Commission o f this type in terms o f numbers as well as rank.

3. Attempts to Constrain the Removal Power

The President, as the head o f a unitary executive branch, has a duty to

“take Care that the Laws be faithfully executed,” U.S. Const, art. II, § 3, to

coordinate and supervise his subordinates, and to ensure that the execu­

tive branch speaks with one voice. See generally Myers v. United States,

272 U.S. 52, 163-64 (1926). The President’s power to remove subordinates

is essential to carrying out these responsibilities. The constitutional limi­

tations on congressional restrictions on the President’s removal authori­

ty “ensure that Congress does not interfere with the President’s exercise

o f the ‘executive power’ and his constitutionally appointed duty to ‘take

care that the laws be faithfully executed’ under Article II.” Morrison v.

Olson, 487 U.S. 654, 690-91 (1988).

A recent example o f Congress considering a bill that would severely

undermine the President’s ability to faithfully execute the laws is the pro­

posal to make the Social Security Administration an independent agency

by limiting the President’s removal powers with respect to its officers.

There are literally hundreds o f other examples and variations on the

theme o f restrictions on the President’s removal power. Because the

pow er to remove is the power to control, restrictions on removal power

strike at the heart o f the President’s power to direct the executive branch

and perform his constitutional duties. In particular, the inability to

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remove officers erodes significantly the President’s responsibility to

“take Care that the Laws be faithfully executed.”

We recognize that the Court upheld restrictions on the executive

branch’s authority to remove an Independent Counsel in Morrison v.

Olson. The Court stated that the constitutionality o f a “for cause” removal

provision turns on whether the removal restrictions “impede the

President’s ability to perform his constitutional duty” and that the func­

tions o f the officer whose removal is limited must be analyzed in that

light. Id. at 691. The Court relied upon three primary points in upholding

the “for cause” removal restrictions on the Independent Counsel. The

Court reasoned that the “for cause” removal provision was constitution­

al because the Independent Counsel: (1) is an inferior officer under the

Appointments Clause; (2) enjoys only limited jurisdiction and tenure; and

(3) lacks policy making or significant administrative authority.

A comparison o f the status and functions of the independent counsel,

and the status and functions o f the officers proposed to be subject to

removal restrictions will often show the proposed restriction to be distin­

guishable from Morrison. Moreover, the Independent Counsel was per­

forming a function — the prosecution o f high level government officials —

where there was perceived to be a conflict o f interest within the executive

branch. Whether distinguishable or not, the power o f the executive branch

will be best preserved by vigorous opposition to such restrictions.

4. Micromanagement of the Executive Branch

There has recently been an unabashed willingness by Congress to

micromanage foreign affairs and executive branch internal deliberations.

For example, S.J. Res. 113, concerning the FSX aircraft, contained

detailed provisions intruding into internal executive branch deliberations,

including specific directives to a particular executive agency to solicit and

consider comments or recommendations from another agency and to

make certain recommendations to the President. It also required that the

President consider these recommendations. Such provisions clearly con­

stitute an inappropriate intrusion by Congress into executive branch man­

agement and an encroachment on the President’s authority with respect to

deliberations incident to the exercise of executive power. Similarly, bills

that require a particular executive agency to be excluded from a policy or

executive decision unconstitutionally infringe upon the unitary executive

and must, therefore, be resisted. Finally, bills that prohibit executive agen­

cies from taking actions to reorganize or consolidate offices within their

agencies or that prohibit agencies from expending funds on activities that

are clearly part o f the agency’s mission constitute an indefensible inter­

ference with the day-to-day management o f the executive departments.

While Congress has a free hand in determining what laws the President

is to enforce, we do not believe that Congress is constitutionally entitled

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to dictate how the executive branch is to execute the law. Congress’

recent interest in determining the precise organizational structure o f

executive branch departments and the chain of command with respect to

internal deliberations seriously threatens the executive branch’s ability to

effectively and efficiently fulfill its obligations. If continued, this pattern

would result in the executive branch being substantially controlled and

administered by the legislative branch.

5. Attempts to Gain Access to Sensitive Executive Branch Information

Congress consistently attempts to obtain access to the most sensitive

executive branch information and is not always receptive to arguments

that the executive branch, like Congress and the courts, must er\joy some

measure o f protection for confidential exchanges o f information if it is to

function effectively. Last month, this Office provided you with a memo­

randum that focused on executive privilege. In addition to overt efforts to

obtain privileged information, Congress often includes in bills language

that purports to require that “all information” or “all reports” regarding a

specific subject be made available to a particular congressional commit­

tee or other entity that is not part o f the executive branch. Such efforts

should be resisted, however, as an unconstitutional encroachment on the

President’s constitutional responsibility to protect certain information.

Therefore, it should always be recommended that such provisions

include the phrase “to the extent permitted by law.” A typical statement

o f this Department’s position regarding a requirement to make available

any or all information and reports is as follows:

The Department objects to the breadth o f this amendment

and its failure to recognize the President’s constitutional

right and duty to withhold from disclosure certain informa­

tion. The President must retain the authority to withhold in

the public interest information whose disclosure might sig­

nificantly impair the conduct o f foreign relations, the

national security, the deliberative processes o f the execu­

tive branch or the performance o f its constitutional duties.

Accordingly, the Department recommends that the com­

mittees’ right to obtain such information be qualified by the

phrase “to the extent permitted by law.”

6. Concurrent Reporting Requirements

In the past year, Congress has increased significantly its use o f con­

current reporting requirements in an effort to insert itself into the execu­

tive branch decisionmaking process. A concurrent reporting requirement

requires an agency simultaneously to transmit to Congress a budget rec­

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ommendation or legislative proposal that it transmits to OMB or the

White House.

In some instances, a concurrent reporting requirement has even been

applied within a department. For example, in 1982 Congress attempted to

require the Federal Aviation Administration Administrator to transmit to

Congress any budget recommendations or legislative proposals that were

transmitted by the Administrator to the Secretary o f Transportation. We

advised that this provision was unconstitutional.6

Concurrent reporting requirements may breach the separation o f pow ­

ers by disrupting the chain o f command within the executive branch and

preventing the President from exercising his constitutionally guaranteed

right o f supervision and control over executive branch officials.

Moreover, such provisions infringe upon the President’s authority as head

o f a unitary executive to control the presentation o f the executive

branch’s views to Congress. Accordingly, such concurrent reporting

requirements should be opposed. However, if enacted, the requirement to

transmit reports to Congress should be construed as applying only to

“final” recommendations that have been reviewed and approved by the

appropriate superiors within the executive branch, including OMB, and if

necessary, the President.

7. Legislative Vetoes

In INS v. Chadha, 462 U.S. 919 (1983), the Supreme Court held that

Congress may only exercise legislative power by passing a bill and present­

ing it to the President. Thus, the Court held unconstitutional a statutory pro­

vision that allowed one House to veto and overrule a decision made by the

Attorney General with respect to a deportation. Congress must abide by a

delegation o f authority to an executive branch official, such as whom to

deport, until that delegation is legislatively altered or revoked. Attempts to

make particular executive branch decisions contingent upon congressional

action or to take binding actions without compliance with the constitution­

al requirement o f presentment are unconstitutional. Efforts to “veto” exec­

utive action without complying with the presentment requirement are

known as “legislative vetoes.” Despite the presentment requirement,

Congress has continued to include some forms o f legislative veto devices in

legislation. Chadha, however, clearly stands for the proposition that

Congress can only affect the obligations and duties o f others through the

legislative process and that bills requiring an executive official to take, or

not to take, a particular action must be presented to the President. Any leg­

6 Memorandum for John Fowler, General Counsel, Department o f Transportation, from Theodore B.

Olson, Assistant Attorney General, O fficc o f Legal Counsel, R e Statutory Requirem ents f o r the F A A

A d m in istra tion to P rovide Certain Budget Inform ation and Legislative Recom m endations D irectly to

Congress (Nov. 5, 1982)

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islation that subjects executive action to veto or approval by the Houses of

Congress or their committees is unconstitutional.

8. Requirements that Legislation be Submitted to Congress

Under Article II, Section 3 of the Constitution, the President is directed to

recommend for legislative consideration “such Measures as he shall judge

necessary and expedient.” Despite this Clause, Congress frequently

attempts by statute to control the executive’s legislative priorities by requir­

ing that the President or his subordinates recommend legislative measures

on certain subjects. Because the President has plenary exclusive authority

to determine whether and when he should propose legislation, any bill pur­

porting to require the submission o f recommendations is unconstitutional.

If enacted, such “requirements” should be construed as only a recommen­

dation to the President that he submit legislative proposals.

9. Attempts to Restrict the President’s Foreign Affairs Powers

Since the 1970s, Congress has increasingly attempted to assert itself in

the area o f foreign affairs at the expense o f the authority traditionally

exercised by the President.7 The President has the responsibility, under

the Constitution, to determine the form and manner in which the United

States will maintain relations with foreign nations. E.g., U.S. Const, art.

II, §§ 1-3; H aig v. Agee, 453 U.S. 280, 291-92 (1981); Baker v. Carr, 369

U.S. 186, 212-13 (1962); United States v. Curtiss-Wright Export Corp.,

299 U.S. 304, 319-20 (1936). It has long been recognized that the

President, both personally and through his subordinates in the executive

branch, determines and articulates the Nation’s foreign policy. See

Statement o f John Marshall, 10 Annals o f Cong. 613 (1800); Curtiss-

Wright, 299 U.S. at 320 ( “the President [is] the sole organ o f the federal

government in the field of international relations — a power which does

not require as a basis for its exercise an act o f Congress”). This authority

encompasses the authority to make treaties on such terms as the

7 The history o f recent congressional action in this area was succinctly summarized in the following

excerpt from an article by Senator John G. Tower, Chairman o f the Senate Armed Services Committee.

Th e 1970’s w ere marked by a rash o f Congressionally initiated foreign policy legislation

that limited the President’s range o f options on a number o f foreign policy issues. The thrust

o f the legislation was to restrict the President’s ability to dispatch troops abroad in a cnsis,

and to proscribe his authonty in arms saJes, trade, human nghts, foreign assistance and intel­

ligence operations. Dunng this period, over 150 separate prohibitions and restrictions w ere

enacted on Executive Branch authority to formulate and implement foreign policy. Not only

w as much o f this legislation ill conceived, if not actually unconstitutional, it has served in a

number o f instances to be detrimental to the national secunty and foreign policy interests o f

the United States.

John G. Tower, Congress Versus the P r e sid e n t • The Form u la tion and Im plem entation o f A m erica n

F o reig n Policy, 60 Foreign Aff., 229, 234 (Winter, 1981-1982)

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President deems advisable and to discuss any issue with another sover­

eign nation and to recommend to it such courses o f action as the

President believes are in our Nation’s interest.

Accordingly, provisions that would prohibit officers or employees of

the United States government from soliciting funds or material assistance

from foreign governments (including any instrumentality or agency

thereof), foreign persons, or United States persons, for the purpose of

furthering any military, foreign policy, or intelligence activity are uncon­

stitutional. Similarly, any provision that purports to prohibit, or to

require, consultation between the United States and another sovereign

nation would be unconstitutional. No limitations on the President’s

authority to discuss certain issues with foreign governments, or to rec­

ommend or concur in courses o f action taken by other nations, should be

sanctioned.

10. Restrictions on the President’s Power to Make Recess Appointments

In addition to frequent attempts to place restrictions on the power o f

the President to appoint officers o f the United States under the

Appointments Clause, Congress has occasionally attempted to constrain

his power under Article II, Section 2, Clause 3 to “fill up all Vacancies that

may happen during the Recess o f the Senate, by granting Commissions

which shall expire at the End o f their next Session.” Thus, for example, a

provision in an appropriations bill several years ago purported to man­

date continued funding for grantees o f the Legal Services Corporation

unless action was taken by directors confirmed by the Senate. This pro­

vision interfered with the President’s recess appointment power to the

extent that it purported to disable recess appointees from performing

functions that could be performed by directors confirmed by the Senate.

This trend is dangerous for presidential powers because the recess

appointment power is an important counterbalance to the power o f the

Senate. By refusing to confirm appointees, the Senate can cripple the

President’s ability to enforce the law. The recess appointment power is an

important resource for the President, therefore, and must be preserved.

WILLIAM P. BARR

Assistant Attorney General

Office o f Legal Counsel

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