The opinion
Constitutionality of Statute Requiring Executive Agency to
Report Directly to Congress
Statute requiring the Adm inistrator o f the Federal Aviation A dm inistration (FAA) to transm it con
currently to C ongress any budget inform ation and legislative recom m endations that are transm it
ted to the S ecretary o f Transportation, the Office of M anagem ent and Budget (OM B), and the
P resident, w ould, if interpreted strictly, on its face violate the constitutional principle of separation
o f pow ers.
S eparation o f pow ers requires that the P resident have ultim ate control over subordinate officials who
perform purely executive functions, w hich includes the right to supervise and review the work of
such officials; this principle, coupled with the constitutional protection afforded the deliberative
process w ithin the Executive B ran ch , creates an area o f executive prerogative that may not be
invaded b y a coordinate branch o f governm ent absent a very com pelling and specific need
D isclo su re to C ongress o f unreviewed recom m endations by subordinates within the Executive
B ranch w ould d isru p t the normal interchange betw een agency heads and the President in connec
tion w ith the decisionm aking process, and interfere w ith the P resident’s ability to supervise the
actions o f his subordinate officials w hile this process is going on, thus adversely affecting the
P resid en t’s ability to carry out his responsibilities.
B ecause there appears to be no specific o r com pelling congressional need for the inform ation at issue
in this case, the concurrent reporting requirem ent can and should be construed so as to avoid
co n stitutional infirm ity, by allowing the FAA A dm inistrator to provide Congress with budget data
and legislative co m m ents only after they have been approved by the A dm inistrator’s superiors in
the E xecutive B ranch, including, w h ere appropriate, the President and OM B.
November 5, 1982
MEMORANDUM OPINION FOR THE GENERAL COUNSEL,
DEPARTMENT OF TRANSPORTATION
This responds to your request for the advice of this Office regarding your
implementation of § 506(f) of the Tax Equity and Fiscal Responsibility Act of
1982, Pub. L. No. 97-248, 96 Stat. 324, 677 (1982), which requires the
Administrator of the Federal Aviation Administration (Administrator) to transmit
certain budget information and legislative recommendations directly to Congress
at the same time that they are transmitted to the Secretary of Transportation
(Secretary), the President, or the Office of Management and Budget (OMB).
Specifically, you have expressed concern that this provision may conflict with the
principle of separation of powers under the Constitution. In response to your
request, we have reviewed the relevant statutory provisions, case law concerning
separation of powers, the Constitution itself and the history of its development,
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and prior opinions of this Office on this general subject. On the basis of this
review, we have concluded that, if interpreted strictly, the statutory provision
would, on its face, violate the separation of powers which is central to the
structure of the United States Constitution.
As discussed in Section II of this opinion, several clearly established principles
of the separation of powers doctrine apply to the question raised by the concurrent
reporting provision. The separation of powers requires that the President have
ultimate control over subordinate officials who perform purely executive func
tions and assist him in the performance of his constitutional responsibilities. This
power includes the right to supervise and review the work of such subordinate
officials, including reports issued either to the public or to Congress. This
supervisory control is reinforced by the constitutional protection afforded to the
deliberative process within the Executive Branch. These principles combine to
create an area of executive prerogative that may not be invaded by a coordinate
branch of government absent a very compelling and specific need.
As detailed in Section III, a requirement that subordinate officials within the
Executive Branch submit reports directly to Congress, without any prior review
by their superiors, would greatly impair the right of the President to exercise his
constitutionally based right to control the Executive Branch. This interference
contrasts with the relatively nonspecific request for information embodied in
§ 506(f). In balancing Congress’ limited apparent need for direct reports against
the President’s right to control subordinates within the Executive Branch, it
seems clear that § 506(f) would be unconstitutional if it were construed to require
the Administrator to report to Congress without prior review by his superiors.
In Section IV, we consider how § 506(0 might be interpreted so as to avoid this
constitutional problem. In brief, we conclude that in order to harmonize the
statute with the requirements of the Constitution, the Administrator should
provide to Congress only budget information and legislative comments that have
been approved by the Administrator’s superiors, including, where appropriate,
the President, OMB, and the Secretary.
I. Background
The Airport and Airway Improvement Act of 1982 (AAIA) was enacted as
Title V of the Tax Equity and Fiscal Responsibility Act of 1982. Pub. L. No.
97-248, 96 Stat. 324, 677 (1982). The AAIA generally authorizes an extension
of, and enacts certain changes to, the Federal Airport Aid Program. In addition,
§ 506(0 provides:
(0 TRANSMITTAL OF BUDGET ESTIMATES.— Whenever
the Administrator of the Federal Aviation Administration submits
or transmits any budget estimate, budget request, supplemental
budget estimate, or other budget information, legislative recom
mendation, or comment on legislation to the Secretary, the Presi
dent of the United States, or to the Office of Management and
633
Budget pertaining to funds authorized in subsection (a) or (b) of
this section, it shall concurrently transmit a copy thereof to the
Speaker of the House of Representatives, the Committees on
Public Works and Transportation and Appropriations of the House
of Representatives, the President of the Senate, and the Commit
tees on Commerce, Science, and Transportation and Appropria
tions of the Senate.
In essence, this provision purports to direct the Administrator to report
concurrently to Congress any budget data or legislative comments that are
transmitted to the President, the Secretary, or OMB. By the terms of § 506(f),
this requirement applies to budget information or legislative comments “ pertain
ing to funds authorized in subsection (a) or (b) of this section . . . ” Subsections
(a) and (b) authorize funding for acquiring or establishing and improving air
navigation facilities and for establishing demonstration projects in connection
with certain research and development activities. In addition, § 504(b) requires
the Administrator to prepare and submit to Congress “ a national airways system
plan” and directs that the preparation be “ subject to the requirements of section
506(f). . . .”
Given this statutory language, it is arguable that the Administrator is required
to submit the specified reports, information, and comments directly to Congress
prior to any review or approval by the President, the Secretary, or OMB. If the
statute were read to impose such a requirement, the Administrator would be
severed from his superiors in the Executive Branch with respect to these matters
and would, in effect, become an independent agency reporting to both Congress
and the President. In addition, the internal deliberative process within the
Executive Branch would be tapped by an information pipeline running directly to
a coordinate branch of government. These possibilities raise serious separation of
powers issues, which are discussed below.
II. Applicable Separation off Powers Principles
Article II, § 1 of the United States Constitution begins with the statement that
“ [t]he executive Power shall be vested in a President of the United States of
America.” Article II, § 3 requires the President to “ take Care that the Laws be
faithfully executed . . . , ” and also requires the President to “ recommend to
[Congress’] Consideration such Measures as he shall judge necessary and expe
dient. . . .” These constitutional provisions, taken together, impose certain
fundamental duties upon the President and grant the power to direct the Executive
Branch to carry out those duties.
In order to execute the laws adopted by Congress, the President must have the
assistance of subordinate officials who will carry out his policies and implement
his instructions with respect to the execution of law. The Supreme Court has,
from its earliest decisions, consistently recognized this basic principle. For
example, in M arbury v. Madison, 5 U.S. (1 Cranch) 137, 164 (1803), Chief
Justice Marshall stated:
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By the Constitution of the United States, the president is
invested with certain important political powers, in the exercise of
which he is to use his own discretion, and is accountable only to
his country in his political character, and to his own conscience.
To aid him in the performance of these duties, he is authorized to
appoint certain officers, who act by his authority, and in con
formity with his orders. In such cases, their acts are his acts; and
whatever opinion may be entertained of the manner in which
executive discretion may be used, still there exists, and can exist,
no power to control that discretion.
Although it is clear that the Constitution does not contemplate “ a complete
division of authority between the three branches,” Nixon v. Administrator of
General Services, 433 U.S. 425, 443 (1977), each branch retains certain core
prerogatives upon which the other branches may not transgress. See Buckley v.
Valeo, 424 U.S. 1 (1976). In Buckley, the Court recognized that “ a hermetic
sealing off of the three branches of Government from one another would preclude
the establishment of a Nation capable of governing itself effectively,” but it
emphasized that there was a “ common ground in the recognition of the intent of
the Framers that the powers of the three great branches of the National Govern
ment be largely separate from one another.” 424 U.S. at 120-21. The Court
declared that it “ has not hesitated to enforce the principle of separation of powers
embodied in the Constitution when its application has proved necessary for the
decision of cases or controversies properly before it.” 424 U.S. at 123.
The extent of the President’s right to control subordinate officers was specifi
cally considered by the Supreme Court in a trilogy of cases involving the
President’s power to remove federal officials. \v\M yers\. UnitedStates, 272U.S.
52 (1926), the Court ruled unconstitutional a statute that limited the President’s
power to remove certain postmasters, and it declared, in dictum, that the repealed
Tenure of Office Act had been unconstitutional as well.1 In reaching this con
clusion, the Court considered a number of factors, including the constitutional
debates, previous congressional practice, and the relationship between the power
to appoint and the power to remove. In addition, the Court expressly based its
decision on the conclusion that “Article II grants to the President the executive
power of the Government, i.e., the general administrative control of those
executing the laws, including the power of appointment and removal of executive
officers— a conclusion confirmed by his obligation to take care that the laws be
faithfully executed. . . .” 272 U.S. at 163-64. The Court based this conclusion
on the following analysis of the President’s control over subordinate officials:
1 The Tenure of Office Act, 14 Stat. 430 ( 1867), had provided that all officers appointed by and with the consent of
the Senate should hold their offices until their successors had been appointed and approved, and that certain heads of
departments, including the Secretary of War, should hold their offices during the term of the President who
appointed them, subject to removal by consent of the Senate. This Act was the pnncipal basis for the articles of
impeachment filed against President Andrew Johnson after he dismissed his Secretary of War without the consent of
the Senate
635
The ordinary duties of officers prescribed by statute come under
the general administrative control of the President by virtue of the
general grant to him of the executive power, and he may properly
supervise and guide thei/construction of the statutes under which
they act in order to secure that unitary and uniform execution of
the laws which Article II of the Constitution evidently con
templated in vesting general executive power in the President
alone. Laws are often passed with specific provision for the
adoption of regulations by a department or bureau head to make
the law workable and effective. The ability and judgment man
ifested by the official thus empowered, as well as his energy and
stimulation of his subordinates, are subjects which the President
must consider and supervise in his administrative control. Find
ing such officers to be negligent and inefficient, the President
should have the power to remove them.
272 U .S. at 135.
The Court confirmed this view of the President’s power over his subordinates
within the Executive Branch in Humphrey's Executor v. United States, 295 U.S.
602 (1935). In that case, the Court ruled that Congress could, consistent with the
Constitution, immunize a Commissioner of the Federal Trade Commission
(FTC) from removal by the President at his pleasure. The Court reasoned that the
FTC could not “ be characterized as an arm or eye of the executive. Its duties are
performed without executive leave and, in the contemplation of the statute, must
be free from executive control.” 295 U.S. at 628. M yers was distinguished on the
ground that “ [t]he actual decision in the M yers case finds support in the theory
that such an officer is merely one of the units in the executive department and,
hence, inherently subject to the exclusive and illimitable power of removal by the
Chief Executive, whose subordinate and aid he is.” 295 U.S. at 627. The Court
emphasized that within the Executive Branch, the President retained the right to
direct the actions of his subordinates free from interference by another branch:
The fundamental necessity of maintaining each of the three
general departments of government entirely free from the control
or coercive influence, direct or indirect, of either of the others, has
often been stressed and is hardly open to serious question. So
much is implied in the very fact of the separation of the powers of
these departments by the Constitution; and in the rule which
recognizes their essential co-equality. The sound application of a
principle that makes one master in his own house precludes him
from imposing his control in the house of another who is master
there.
295 U.S. at 629-30. Thus, by narrowing M yers to cover only subordinates of the
President within the Executive Branch, the Court linked the removal power even
more clearly to the right of the President to control purely executive officials.
636
This principle was reaffirmed in W iener\. UnitedStates, 357 U.S. 349 (1958).
In that case, the Court held that the President did not have a constitutional right to
remove a member of the War Claims Commission. The Court ruled that the
Commission was essentially judicial in nature and that it was intended by
Congress to operate entirely free of the President’s control. 357 U.S. at 355-56.
The Court expressly linked the right of removal with the right of the President to
control a particular official:
If, as one must take for granted, the War Claims Act precluded the
President from influencing the Commission in passing on a par
ticular claim, a fortiori must it be inferred that Congress did not
wish to have hang over the Commission the Damocles’ sword of
removal by the President for no reason other than that he preferred
to have on that Commission men of his own choosing.
357 U.S. at 356. The Court thus emphasized that Humphrey’s Executor “ drew a
sharp line of cleavage between officials who were part of the Executive establish
ment and were thus removable by virtue of the President’s constitutional
powers,” and those who were members of an independent body required to
exercise its judgment without hindrance from the Executive. 357 U.S. at 353.
These three cases clearly establish the President’s right to control the actions
and duties of his subordinates within the Executive Branch. Myers explicitly set
forth the President’s right to control as one of the bases for establishing the
presidential right to discharge subordinate officials. Humphrey’s Executor and
Wiener, while limiting the President’s removal power, reinforced the link be
tween the President’s right to control and his right to remove Executive Branch
officials.
The President’s right to control the execution of the laws free from undue
interference from coordinate branches of government is supported by an addi
tional line of authority. In United States v. Nixon, 418 U.S. 683 (1974), the
Supreme Court confirmed that the Constitution protects the integrity of the
Executive Branch decisionmaking process from interference by another branch
through demands for information about the Executive’s deliberations. The Court
recognized
the valid need for protection of communications between high
Government officials and those who advise and assist them in the
performance of their manifold duties; the importance of this
confidentiality is too plain to require further discussion. Human
experience teaches that those who expect public dissemination of
their remarks may well temper candor with a concern for ap
pearances and for their own interests to the detriment of the
decisionmaking process.
418 U.S. at 705 (footnote omitted). The Court specifically acknowledged that
this right of confidentiality “ can be said to derive from the supremacy of each
branch within its own assigned area of constitutional duties. Certain powers and
637
privileges flow from the nature of enumerated powers; the protection of the
confidentiality of Presidential communications has similar constitutional under
pinnings.” 418 U.S. at 705-06 (footnote omitted). The Court further noted that
this protection “ is fundamental to the operation of Government and inextricably
rooted in the separation of powers under the Constitution.” 418 U.S. at 708
(footnote omitted).
This decision gives further content to the principle that the constitutional
separation of powers requires the President to have effective control over the
decisionmaking process within the Executive Branch. The constitutional pre
rogative recognized by the Court connects the President’s constitutional respon
sibility to take care that the laws be faithfully executed with the practical need for
confidentiality in Executive Branch deliberations. The Court has unmistakably
declared that the powers necessary to the implementation of the President’s
authority over the Executive Branch cannot be abridged absent a compelling and
specific need asserted by another branch.2
The D.C. Circuit has explicitly recognized the right of the President to protect
himself from unwarranted intrusions by Congress into the domain of protected
decisionmaking activity. In Senate Select Committee on Presidential Campaign
Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc), the court ruled that
the President was not required to produce to Congress certain transcripts of White
House conversations. The court decided that the general presumption in favor of
the confidentiality of executive deliberations could be overcome “ only by a
strong showing of need by another institution of government— a showing that the
responsibilities of that institution cannot responsibly be fulfilled without access
to records of the President’s deliberations. . . .” 498 F. 2d at 730. The court found
that the general oversight need o f Congress in this instance was not sufficient to
meet the court’s requirement that the information be “ demonstrably critical to the
responsible fulfillment of the Committee’s functions.” 498 F.2d at 731.
The decisions and the long practical history concerning the right of the
President to protect his control over the Executive Branch are based on the
fundamental principle that the President’s relationship with his subordinates must
be free from certain types of interference from the coordinate branches of
government in order to permit the President effectively to carry out his constitu
tionally assigned responsibilities. The executive power resides in the President,
2 Although the N ix o n case dealt with communications between the President and White House advisors, it seems
clear that the principles enunciated therein extend at least to other important decisionmakers within the Executive
Branch. S e e U n ite d S ta te s v. A m erican T elephone & T elegraph C o ., 567 F 2d 121 (D.C. Cir 1977). The N ixon
Court specifically referred not simply to the President but to “ high government officials and those who advise and
assistthem . . . 418 U .S. at 705 Rirthermore, as the Supreme Court recognized m B a r r v . M atteo, 360U . S. 564
(1959), where it extended the privilege against libel suits involving official utterances to executive officials below
Cabinet rank:
We do not think that the principle announced in Vilas can properly be restricted to executive
officers of cabinet rank, and in fact it never has been so restricted by the lower federal courts. The
privilege is not a badge or emolument o f exalted office, but an expression of a policy designed to aid
in the effective functioning of government. The complexities and magnitude of governmental
activity have become so great that there must o f necessity be a delegation and redelegation of
authority as to many functions, and we cannot say that these functions become less important simply
because they are exercised by officers of lower rank in the executive hierarchy
360 U .S. at 572-73 (footnotes omitted)
638
and he is obligated to “ take care that the laws are faithfully executed.” In order to
fulfill these responsibilities, the President must be able to rely upon the faithful
service of subordinate officials. To the extent that Congress or the courts interfere
with the President’s right to control or receive effective service from his subordi
nates within the Executive Branch, those other branches limit the ability of the
President to perform his constitutional function. Therefore, only the most
compelling and specifically supported needs will justify any interference with the
President’s power within the Executive Branch.
III. Application of Separation of Powers Principles to § 506(f)
In this instance, the potential impact of § 506(f) on the Executive Branch is
significant and adverse. On the other hand, the provision does not reflect any
particularized congressional need for specific factual information. Under these
circumstances, as described more fully below, the constitutionally based need to
protect the executive process from a non-compelling intrusion by Congress
suggests that the statutory provision should be very narrowly construed so as not
to offend separation of powers principles.
A. Interference with the Executive Process
There is no doubt that the Administrator is a purely executive official who
serves at the pleasure of the President and is subject to the President’s control.
The FAA, as a division of the Department of Transportation, is indisputably an
executive agency. The Administrator is appointed by the President with the
advice and consent of the Senate, and he serves at the pleasure of the President.
49 U.S.C. § 1652(e)(1). The Administrator reports directly to the Secretary of
Transportation, who reports in turn to the President. 49 U.S.C. § 1652(e)(3).
Since the Administrator is a purely executive official subject to the direct control
of the President, under the principles set forth above, the Administrator must be
responsible to the Secretary, and ultimately to the President, and the Admin
istrator’s superiors have the right to supervise and approve the Administrator’s
work.
The concurrent reporting provision could be construed to interfere greatly with
the President’s right to supervise the Administrator’s action. The provision could
be read to require the Administrator to submit any budget information or
legislative comments directly to Congress prior to any approval or even review by
the Administrator’s superiors, including the Secretary and the President. If the
provision were interpreted in that manner, the Administrator would be effectively
severed from his superiors in the Executive Branch with respect to these areas of
his responsibility. On these vital budget and legislative matters, the Admin
istrator would become, in effect, an independent agency reporting both to
Congress and to the President. This concurrent responsibility is entirely incon
sistent with the separation of powers principles set forth above and with the
639
corollary right of the President to control his subordinates within the Executive
Branch.
The practical effect of a broad interpretation of § 506(f) would severely impair
the President’s ability to carry out his constitutionally assigned responsibilities.
The President’s responsibility to take care that the laws are faithfully executed
includes the responsibility imposed by the Budget and Accounting Act to present
a unified national budget to Congress. See 31 U.S.C. § 11. In order to implement
this statutory responsibility, the President has established a budget development
and review process through OM B, which is a part of the Executive Office of the
President. The President through OMB requires that
the confidential nature of agency submissions, requests, recom
mendations, supporting materials and similar communications
should be maintained, since these documents are an integral part
of the decisionmaking process by which the President resolves
budget issues and develops recommendations to the Con
gress. . . . Budgetary material should not be disclosed in any
form prior to transmittal by the President of the material to which
it pertains. The head of each agency is responsible for preventing
premature disclosures of this budgetary information.
OMB Circular No. A-10(Nov. 12, 1976) at 2. Thus, the Executive has explicitly
determined that disclosure of unreviewed recommendations by subordinates
within the Executive Branch would adversely affect the President’s ability to
carry out his responsibilities.3
Moreover, the President has an explicit constitutional obligation to “ recom
mend to [Congress’] Consideration such Measures as he shall judge necessary
andexpedient. . . .” Article II, § 3. The Administrator is responsible for making
recommendations to the President concerning such legislative action so that the
President may review them and determine which measures “ he shall judge
necessary and expedient.” Id. Congress seeks to interdict this process by requir
ing immediate reporting of such legislative recommendations prior to the Presi
dent’s review or approval. Thus, although the Constitution gives to the President
the right to present legislative recommendations on behalf of the Executive
Branch, Congress, by this concurrent reporting provision, purports to require a
subordinate executive official to present legislative recommendations of his own.
Such a provision clearly transgresses upon the President’s constitutionally desig
nated role.
Thus, the concurrent reporting provision presents a constitutional problem
that transcends the issue of executive privilege.4 The issue here concerns not just
3 Although Congress has enacted concurrent reporting provisions with respect to certain independent agencies,
we are unaware that it has ever imposed a concurrent reporting requirement upon a purely executive agency that is
under the President’s direct supervision and control See 7 U S C § 4a(h)(l) (Commodity Ritures Trading
Commission); 15 U .S.C . § 2076(k)(l) (Consum er Product Safety Commission); 31 U .S .C § ll( j) (Interstate
Commerce Commission).
4 The provision would present a more classic executive privilege problem if it required production of recommen
dations and deliberative documents after the final budget decisions had already been made and transmitted to
Congress by the President. That type of statute would present constitutional problems, but they would be of a
different character th airth e ones presented by § 506(0-
640
protection of the deliberative process once a final decision has already been
made, but rather protection of the President’s ability to supervise the actions of his
subordinate officials while the decisionmaking process is still going on. Because
§ 506(0 might be read to require a presidential subordinate to report both to
Congress and his superiors within the Executive Branch, it intrudes deeply into
the President’s constitutional prerogative. Indeed, as thus construed, it would
interdict and therefore irreparably damage, if not destroy, the normal exchange of
views between agency heads and the President (through OMB) before budget
submissions are finally approved. A potential result is that the Administrator
might be cut out of the process and made into a figurehead with the budget work
assigned to someone not subject to the constraints of § 506(f).
This Office has previously considered, and found constitutionally defective,
legislative proposals that impose concurrent reporting requirements upon ex
ecutive officials. For example, this Office has published an opinion concerning a
proposal that an inspector general be required to report information directly to
Congress, without review or approval by the head of the particular agency
involved. Inspector General Legislation, 1 Op. O.L.C. 16 (1977).5 In that
opinion, this Office determined that the “ President’s power of control extends to
the entire executive branch, and includes the right to coordinate and supervise all
replies and comments from the executive branch to Congress.” Id. at 17. The
opinion stated that the requirement to provide information directly to Congress
without Executive Branch clearance was “ inconsistent with [the Inspector Gen
eral’s] status as an officer in the executive branch, reporting to and under the
general supervision of the head of the agency.” Id. In conclusion, the opinion set
forth the following principle:
Reports of problems encountered and suggestions for remedial
legislation may be required of the agencies in question, but those
reports must come to Congress from the statutory head of the
agency, who must reserve the power of supervision over the
contents of these reports.
Id. at 18.
B. Congressional N eed fo r § 506(f)
In the face of this significant interference with the President’s right to control
his subordinates, there does not appear from the legislation or its history a strong
comparable Legislative Branch interest. Congress has not expressed a specific
need for § 506, either in the statute itself or in the legislative history. One can
only infer that Congress adopted the provision in order to obtain more informa
tion to assist it in carrying out its review of the budget. There is no indication that
Congress could not obtain similar information to aid its deliberations from other
sources or by other means that would be less intrusive upon the Executive
Branch. Certainly there is no indication that the material “ is demonstrably
5 S ee also Proposals Regarding an Independent A ttorney G eneral, 1 O L C. 75 (1977)
641
critical to the responsible fulfillment of the Committee’s functions.” See Senate
S elect Com m ittee on Presidential Campaign A ctivities v. Nixon, 498 F.2d at 731.
Moreover, the concurrent reporting provision is a blanket requirement that
applies to all budget information and legislative comments. The provision is
sweeping and indiscriminate in its demand for information from the Executive
Branch. This type of requirement is inconsistent with the Constitution’s “ spirit of
dynamic compromise” with respect to disputes between coordinate branches of
government. See United States v. American Telephone & Telegraph C o., 567
F.2d 121, 127 (D.C. Cir. 1977). That case involved a Justice Department suit to
block a congressional subpoena of third-party materials on the ground that
production would pose a threat to national security. In resolving the clash
between the Executive and Legislative Branches, the Court insisted on further
efforts by the two branches to reach a compromise arrangement and emphasized
that
the resolution of conflict between the coordinate branches in these
situations must be regarded as an opportunity for a constructive
modus vivendi, which positively promotes the functioning of our
system. The Constitution contemplates such accommodation.
Negotiation between the two branches should thus be viewed as a
dynam ic process affirm atively furthering the constitutitonal
scheme.
567 F.2d at 130. By enacting a blanket statutory mechanism that would require
automatic submission to Congress of preliminary and not fully developed Ex
ecutive Branch positions, Congress has ignored this common sense construction
of constitutional principles. Congress’ need is much less significant than would
be the case if Congress had made a specific, well-defined request for materials
that were necessary for it to fulfill a vital legislative function. Congress may still
make such a specific request, and it needs no statute to do so. Congress and its
committees frequently obtain information in this manner from the Executive
Branch when, in the view of the Executive Branch, the provision of such
information will not have an unacceptable impact on the deliberative process.
On balance, if the concurrent reporting provision were construed to require
immediate transmission to Congress of the Administrator’s budget and legislative
recommendations, it would violate the constitutionally prescribed separation of
powers. The potential interference with the President’s constitutional duty to
supervise the actions of his subordinates would be substantial, while there does
not appear to be any congressional need of comparable magnitude for the
information. Therefore, the provision must be construed in a manner consistent
with the separation of powers required under the Constitution.
IIV. ImpEemeiniltaltnoini off § 506(5)
In implementing § 506(f), the Administrator must act in accordance with the
constitutional principles set forth above. Therefore, § 506(0 must be carried out
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in a manner that will permit the Secretary and, as necessary, the President or
OMB to review the Administrator’s reports prior to their submission to Congress.
Broadly worded statutes that could be interpreted in such a way as to create a
conflict with the separation of powers have, in the past, been interpreted very
narrowly so as not to impinge upon the constitutional prerogatives of the
Executive Branch. For example, Congress has enacted a provision that on its face
requires any executive agency to submit to the Government Operations Commit
tees of the House or Senate “ any information requested of it relating to any matter
within the jurisdiction of the committee.” 5 U.S.C. § 2954. This provision,
however, has been narrowly interpreted by the Executive Branch to grant to the
pertinent committees access to only the type of information that has traditionally
been made available to Congress and that is not subject to valid claims of
executive privilege. Statement of Attorney General Elliot Richardson, June
1973. Attorney General Rogers adopted a similar approach in response to a
provision of the Mutual Security Act of 1954 in order to avoid a construction of
the statute that would require production of documents presumptively protected
by executive privilege. See 41 Op. Att’y Gen. 507, 525 (1960). This practice is,
of course, consistent with the familiar rule that courts will adopt an interpretation
of a statute that will avoid constitutional questions. See, e.g ., United States v.
Rumely, 345 U.S. 41, 45 (1953).
In this instance, we have concluded that § 506(f) can and should be construed
to be consistent with the Constitution by interpreting the budget information and
legislative comments that the Administrator is required to produce to Congress to
include only “ final” information and comments. In other words, until budget
information, legislative comments, or any other material required to be transmit
ted to Congress is reviewed and approved by the appropriate senior officials, the
material should be regarded as tentative, rather than final, conclusions of the
Administrator. The information or comments would not become final until the
appropriate review process was complete, at which time the Administrator,
pursuant to § 506(f), would transmit the final information or comments to both
the Secretary and Congress.
V. Conclusion
In conclusion, we believe that § 506(f) is constitutional only if interpreted to
permit the Secretary and the President to review the Administrator’s reports prior
to the time that they are submitted to Congress. We recommend that the Admin
istrator carry out his responsibilities under § 506 in accordance with this consti
tutional requirement.
T h eo d o r e B. O lso n
Assistant Attorney General
Office of Legal Counsel
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