                                                               May 25, 1979


79-37    MEMORANDUM OPINION FOR THE
         SECRETARY OF ENERGY

         Emergency Petroleum Allocation Act of 1973 (15
         U.S.C. § 751)—The President—Constitutional Law
         (Article II, Section 2, Clause 2)—Delegation of
         Authority to State Governors in End-user Gasoline
         Allocation Program


   This responds to your request for our opinion regarding several ques­
tions arising from a proposed delegation of powers under the Emergency
Petroleum Allocation Act of 1973 (EPAA), 15 U.S.C. § 751 et seq.: First,
whether the President may constitutionally delegate powers under EPAA
to the Governors of the several States and whether the Governors can exer­
cise these powers in the absence of any State enabling legislation or in the
presence of State legislation affirmatively prohibiting the exercise o f such
powers; second, whether the substantive powers proposed to be delegated
to the Governors are within the scope of power delegated to the President
by EPAA. We conclude that delegation of specific powers to the Gover­
nors on a permissive basis would clearly be authorized except in situations
in which constitutional provisions of the State prevented the exercise of
such Federal powers by the Governor.

  I. The Constitutionality of Delegating Federal Power to a Governor
  The delegation of power by Executive order under the EPAA to the
Governors of the several States raises two distinct constitutional issues.
First, whether a Governor may constitutionally be delegated the power
under a Federal statute in order to implement and enforce Federal law.
Second, whether such a delegation is consistent with the “ state sover­
eignty” values embodied in the Tenth Amendment in the absence of State
legislation supportive of the delegations or in the presence of prohibitory
State statutory or constitutional provisions.
  The Governors of the several States may be delegated the power to

                                    231
implement and enforce Federal substantive law. It is settled that State of­
ficers are under a constitutional obligation to abide by Federal law, see,
Coopery. Aaron, 358 U.S. 1 (1958), and that at least some Federal power
may be delegated to private citizens, see, Currin v. Wallace, 306 U.S. 1
(1939). In addition, so long as the President retains the authority to
withdraw power once delegated, as he has done here, his prerogatives
under Article II, § 2, C l. 2, to select and control those who will implement
Federal law is preserved.1 The only substantial question raised by the pro­
posed delegation relates to the impact it might have on the sovereign status
of the States in our federal system. Cf., National League o f Cities v.
Usery, 426 U.S. 833 (1976).
   The salient feature of the delegation in regard to the Tenth Amendment
is that each Governor will be free to decline the delegation for any or no
reason at all. Thus, unlike the situation initially presented to the Supreme
Court in Environmental Protection Agency v. Brown, 431 U.S. 99 (1977),
the executive branch of any State is completely free to accept or reject the
responsibilities attendant to any delegation of Federal power by the Presi­
dent. Given the permissive nature of the delegation, we do not believe that
the concerns expressed by the several Courts of Appeals regarding the
Tenth Amendment implications of the Clean Air Act and that Act’s im­
position of certain duties on the States are present here. See, e.g., Brown
v. Environmental Protection Agency, 521 F. (2d) 827, 837-42, (9th Cir.
 1975), judgment vacated, 431 U.S. 99 (1977). There, the Ninth Circuit sug­
gested quite strongly that a Federal statute requiring a State to expend
State funds and utilize State personnel to enforce certain provisions of the
Clean Air Act would present substantial Tenth Amendment problems. We
do not believe that the voluntary assumption of such Federal responsi­
bilities by State officers stands on the same footing as the mandatory re­
quirements of the regulations issued by the Environmental Protection
Agency pursuant to the Clean Air A ct.2 Indeed, we believe there is a con­
stitutional presumption that a State officer will enforce Federal laws when
called upon to do so, see, Cooper v. Aaron, supra. Thus, at least where no
State statutory or constitutional law is to the contrary, the chief executive
of a State may be delegated the power to exercise the contemplated func­
tions under § 5(b) of the EPAA.
   Where, however, the executive authority of a State is explicitly pro­
hibited by State law from assuming such functions, we doubt that a


   1 U nder 15 U .S.C . § 1827(a), the Secretary o f Agriculture was empowered in 1970 “ to
utilize the officers and employees o f any State, with its consent” in the carrying out o f a
Federal program for the protection o f horses. A lthough such provisions are relatively novel,
their usage has now been accepted for at least a decade by Congress and the executive branch.
   2 We note that prior to the Suprem e C o u rt’s decision in Brown, the Environm ental Protec­
tion Agency conceded that the m andatory provisions o f its regulations for affirmative State
action were invalid under the Clean Air A ct. For this reason, the Supreme C ourt did not
reach the merits o f the statutory or constitutional argum ents raised by several States quite
successfully in the decisions considered by the C ourt in Brown.

                                             232
Governor can accept a delegation to perform these Federal functions. The
threshold inquiry is whether Congress would have intended S*ate law to be
preempted by the EPAA. Section 6(b) of that Act, 15 U.S.C. § 755(b),
deals specifically with the subject of preemption, but does not suggest a
congressional intent to preempt the kind of State law that would be in­
volved here. Because the control of a State’s executive branch by its
legislature, including the devotion of State officers to duties other than
those prescribed by the State legislatures, appears to us to be a funda­
mental aspect of State sovereignty under the Tenth Amendment. We
believe that EPAA should not b£ read, and probably cannot be read, to ef­
fect such preemption. We think that the specificity of the preemption pro­
vision contained in the EPAA, which clearly does not contemplate the
kind of preemption involved here, coupled with the substantial constitu­
tional question that would be presented, were the EPAA read to preempt
such State law, would be decisive on this point.3
   We therefore conclude that although power under the EPAA may be
delegated by Executive order to Governors on a permissive basis, such a
delegation could not be effected in contravention of State law.

II. The Power to Require End-user Allocation of Gasoline Under EPAA

  Under the proposed Executive order, a Governor would be empowered
to require motor-gasoline retail sales outlets in his State or a locality
thereof to supply gasoline to vehicles on an “ odd-even plate number
basis,” to require purchasers of gasoline to purchase a specified minimum
amount of gasoline, and finally to require retailers to be open or closed for
the sale of gasoline at specified times of the day or on specified days. The
question is whether EPAA authorizes the type of such end-user allocation
controls.
  This question can be subdivided into two parts: First, whether EPAA
authorizes the application of mandatory allocation measures applicable to
end-users; second, if EPAA does authorize these, whether it authorizes the
specific type of powers proposed to be delegated.

                                   End-user Allocation

   Under § 4 o f EPAA, 15 U.S.C. § 753, the President was directed to


   1 The substantiality o f the constitutional question presented is apparent under all the
Courts o f Appeals decisions consolidated for review in the Supreme C ourt in Environmental
Protection Agency v. Brown, supra. Certainly, the requirement that the Governor o f a State
perform Federal duties is one that could detract substantially from his ability to perform
State duties imposed on him by State law. Indeed, it is difficult to conceive o f a m ore signifi­
cant infringement on State authority than to conscript the Governor o f a State, even a willing
G overnor, into the Federal service in contravention o f State law reserving the services o f the
Governor to the people o f his Slate.

                                              233
establish a “ mandatory allocation” program by regulation. As explained
in the Conference Report on the Act:
      The mandatory allocation program will operate to compel the al­
      location of product throughout the various levels of the petroleum
      market. It may be necessary, in selective cases, to compel the
      allocation of product to particular end-users, such as hospitals,
      units of government, or persons engaged in energy production and
      transportation; but it is not generally expected that the regulation
      promulgated by the President will be burdened with the complex­
      ities of assigning fuels to users unless such assignment is necessary
      to carry out the purposes of the Act. When required, however, it is
      intended that the President would have full authority under this
      Act to identify permissible uses of covered fuels and to restrict the
      amounts which may be made available to such uses.4
   In 1974, the Federal Energy Administration (now the Federal Energy
Regulatory Commission), exercising the power granted by § 4 of EPAA,
promulgated regulations specifically covering the allocation of certain
petroleum products to end-users. See 10 CFR §§ 211.10-211.17, reprinted
in 39 F.R. 35511-19 (Oct. 1, 1974). Thus, from an early date the agency
charged with exercising the power of allocation clearly read that statute as
authorizing allocation of various petroleum products covered by the Act
to end-users. This evidence is significant because it is a familiar rule of
statutory construction that an agency’s contemporaneous interpretation
of a statute is normally given great weight. See, Maynard v. Elliott, 283
U.S. 273 (1931). In connection with its consideration of what ultimately
became the Energy Policy and Conservation Act, 42 U.S.C. §§ 6261 et
seq., the Congress reviewed in some detail the allocation regulations that
had been issued by the Federal Energy Administration. See H. Rept.
94-340, 94th Cong., 1st sess., 65-69 and 185-203 (1975). The conse­
quences of this review were the reenactment of EPAA and the addition to
it of additional tools to be used by the President to deal with energy alloca­
tion and shortages. Under such circumstances, the contemporaneous in­
terpretation of the EPAA in 1974 is “ presumptively the correct interpreta­
tion of the law.” See 2A Sutherland, Statutory Construction § 49.09 (4th
ed. 1973); Cammarano v. United States, 358 U.S. 498, 508-09 (1959). We
believe that the prior interpretations of the EPAA would be viewed as cor­
rect interpretations and clearly within the scope of EPA A .5

                              Specific End-user Controls
   In its consideration of the proposed EPCA in 1975, the House


  4 H. Rept. 93-628, 93rd C ong., 1st sess., 13 (1973).
  5 Although we believe that § 4 o f E PA A is adequate support for the proposed Executive
order, we would additionally note that §§ 15 and 16 o f E PA A , added to E PA A by the enact­
ment o f the EPCA in 1975, would also appear to provide authority.

                                            234
committee on Interstate and Foreign commerce expressly noted that
measures instituted largely by the States on their own initiative during the
1973-1974 oil embargo had been successful. More particularly, the Commit­
tee Report noted that alternate day of the week purchases, requirements
that motorists have less than one-half a tank of gas prior to purchase, and
controlled gasoline station business hours had been very effective in dealing
with that shortage. Id., at 64. The response of Congress in the EPCA was
an amendment to EPAA, adding to that latter Act new §§ 11 and 12, 15
U.S.C. §§ 760, 760a. Under § 11, the President was to review the prior
regulations issued pursuant to § 4 of EPAA and to amend them under
specified circumstances. Under § 12, the criteria for amendment were
established. Basically, it was required that “ the regulation, as amended,
[must provide] for the attainment, to the maximum extent practicable of the
objectives stated in § 4 of the Act.”
   This language, coupled with the broad authority conferred on the Presi­
dent by § 4 as explained by the language quoted above from the conference
report, provides substantial support for a determination that the controls
that would be authorized by the proposed Executive order were
“ necessary” to carry out the purposes of EPA A.6

                                                 L eon U lm an
                                   Deputy Assistant Attorney General
                                                       Office o f Legal Counsel




  ‘ The Tem porary Emergency court o f Appeals suggested in dictum that § 4 would provide a
basis for a regulation that would have provided for preferential treatm ent by gasoline retailers
for identifiable commercial customers. See, Reeves v. Simon, 507 F. (2d) 455, 461 (1974), cert,
denied, 420 U .S. 991 (1975). The Reeves case is necessarily grounded on the proposition that
EPA A permits the regulation o f gasoline retailers as part o f a program o f end-user allocation.

                                              235
