    Whether Members of the Sentencing Commission Who Were
    Appointed Prior to the Enactment of a Holdover Statute May
         Exercise Holdover Rights Pursuant to the Statute


S ta tu to ry p ro v is io n s th a t allo w m e m b e rs o f the U n ited S ta te s S e n te n c in g C o m m is sio n to h o ld o v e r in
     o ffic e a fte r th e ir term s h av e e x p ire d a p p ly to in c u m b e n t m e m b e rs w h o w ere a p p o in te d p rio r to the
     e n a c tm e n t o f th e h o ld o v e r s tatu te


C o m m is sio n e rs w h o w ere a p p o in te d p n o r to th e e n a c tm e n t o f the h o ld o v e r statu te m a y c o n stitu tio n a lly
     e x e rc ise su ch h o ld o v e r rig h ts w ith o u t v io la tin g the A p p o in tm e n ts C lau se.


                                                                                                                           April 5, 1994


                                M e m o r a n d u m O p in i o n f o r t h e A t t o r n e y G e n e r a l




                                         B A C K G R O U N D AND SU M M A R Y

   On August 26, 1992, President Bush signed “An Act to amend [28 U.S.C. §
992] to provide [that] a member of the United States Sentencing Commission
whose term has expired may continue to serve until a successor is appointed or
until the expiration of the next session of Congress.” Act of Aug. 26, 1992, Pub.
L. No. 102-349, 106 Stat. 933 (1992) (codified at 28 U.S.C. § 992(b)) (“the holdo­
ver statute”). This memorandum addresses whether members of the Sentencing
Commission (“Commission”) who were in office at the time the holdover statute
was enacted may exercise holdover rights pursuant to the statute.
   W e first address whether Congress intended the holdover statute to apply to
commissioners who were appointed prior to its enactment. The plain meaning of
the holdover provision belies any claim that it does not apply equally to incumbent
commissioners and to newly appointed commissioners. By its own terms, it ap­
plies to any “voting member of the Commission whose term has expired” regard­
less of when the member was appointed. Id. Only by consulting the legislative
history does any ambiguity arise regarding its application to incumbent com m is­
sioners. Even then, the legislative history of the holdover provision and the presi­
dential signing statement provide inconclusive evidence of intent. Assuming that
an examination o f the legislative history is appropriate, there simply is insufficient
evidence to disregard the plain meaning of the holdover provision.
   W e next address whether the holdover provision is constitutional as it applies to
commissioners who were appointed before its enactment. As applied to such
commissioners, the holdover provision raises questions under the Appointments
Clause o f the Constitution. It may be argued that the holdover provision interferes

                                                                      33
                          Opinions o f th e Office o f L eg a l C ounsel


with the President’s appointment pow er because it extends the terms of office of
appointees beyond that contemplated by the appointing authority and amounts to a
legislative reappointm ent. Although this issue is not entirely free from doubt, we
conclude that the particular holdover provision at issue would survive an Appoint­
ments C lause challenge. In sum, w e conclude that the commissioners serving at
the tim e the provision became law on August 26, 1992 may (like those appointed
after the provision was adopted) constitutionally exercise holdover rights pursuant
to the statute.

                                                I.

  The threshold issue requires us to construe the holdover provision to determine
whether it applies to commissioners w ho were serving at the time of its enactment.
The holdover provision provides that:

       Section 992(b) o f title 28, U nited States Code, is amended to read
       as follows:

                                            *   *    *



       “(2) A voting m em ber of the Commission whose term has expired
       m ay continue to serve until the earlier of—
             “(A) the date on which a successor has taken office; or
              “(B) the date on which the Congress adjourns sine die to end
       the session of Congress that com mences after the date on which the
       m em ber’s term expired.”

106 Stat. at 933. The text o f the holdover provision does not distinguish between
com m issioners appointed before or after its enactment. By its own terms, it applies
to any “voting m em ber of the Commission whose term has expired” without refer­
ence to when the m em ber was appointed. Although the text of the holdover provi­
sion contains no language either raising or addressing the question o f whether it
applies to a com m issioner who was serving at the time o f its passage, such a com­
m issioner is a “voting member of the Com m ission” and one “whose term has ex­
pired,” and thus is unquestionably w ithin the plain meaning of the terms o f the
holdover statute.
   The Suprem e C ourt has instructed that “[t]he plain meaning of legislation
should be conclusive, except in the ‘rare cases [in which] the literal application of a
statute will produce a result demonstrably at odds with the intentions of its draft­
ers.’” U nited S tates v. Ron Pair E nterprises, Inc., 489 U.S. 235, 242 (1989)
(second set of brackets in original) (quoting Griffin v. O ceanic C ontractors, Inc.,
458 U.S. 564, 571 (1982)). See a lso INS v. C ardoza-F onseca, 480 U.S. 421, 432

                                                34
              Opinion Regarding the Sentencing C om m ission H oldover Appointees


and n.12 (1987) (where “the plain language o f [the] statute appears to settle the
question. . . . [W]e look to the legislative history to determine only whether there is
‘clearly expressed legislative intention’ contrary to that language, which would
require us to question the strong presumption that Congress expresses its intent
through the language it chooses”). In his signing statement, President Bush cited a
portion o f the legislative history of the holdover provision and rejected the plain
reading o f the statute. See infra. After examining the legislative history of the
holdover provision, we conclude that President Bush was mistaken in his statement
about its legislative history and that a careful reading of the legislative history as a
whole provides no support for rejecting the plain meaning o f the statute.
   The legislative history of the holdover statute contains, at most, some am bigu­
ous evidence of congressional intent. The text of the holdover provision is con­
tained in the only section of the statute. W hen the bill was introduced in the
Senate, it also contained a second section that provided:

        Sec. 2. EXTENSION OF TERM S OF PRESENT MEMBERS OF
        THE COM M ISSION

        The amendment to [28 U.S.C. § 992(b)] contained in section 1 of
        this Act shall apply to the term of any voting member of the Com­
        mission whose term expires on October 31, 1991.

S. 1963, 102d Cong., § 2 (1991). The same provision was contained in the bill
when it was reported out o f committee. On January 31, 1992, Senate Majority
Leader Mitchell sought and received unanimous consent to consider passage of the
bill immediately. 138 Cong. Rec. 1 166 (1992). At that date, the event specified in
section two (the expiration of two com m issioners’ terms on October 31, 1991) had
already occurred. Rather than alter section two, an amendment was offered on
behalf of the bill’s sponsors, the Chairman and Ranking Minority M ember o f the
Judiciary Committee, to strike section two of the bill entirely. Id. W ithout any
discussion, the amendment striking section two was approved (by unanimous con­
sent) and then the bill as amended was passed by unanimous consent. Id.
    The Senate’s decision to strike all of section two rather than to amend it to
cover other sitting commissioners is subject to different interpretations. Based on
the future verb tense “expires” rather than the past tense “expired” in draft section
two, it can be inferred that the sponsors of S. 1963 originally hoped to introduce
and pass the bill prior to October 31, 1991. It could be argued that the sponsors
thought that it was important to provide in the text that the holdover provisions in
section one applied to these commissioners whose terms would soon expire be­
cause they believed that section one, in and of itself, might not apply to com m is­
sioners who were then serving on the Commission. If that were the case, however,
it seems curious that they would want to grant holdover rights only to the com m is­


                                              35
                            Opinions o f th e Office o f L egal C ounsel


sioners whose term s expired in October of 1991 and not to any of the other incum­
bent com m issioners. It is also possible that at the time the Senate deleted section
two, it simply realized that it could do nothing for the commissioners whose terms
had a lre a d y expired but that it assum ed section 1 would apply to all of the then
incum bent com m issioners whose term s of office had not yet expired. These con­
flicting argum ents based on the S enate’s deletion of section two are difficult to
reconcile, which suggests that placing much reliance on them is not warranted.
    The signing statem ent issued by President Bush reflects a misinterpretation of
the Senate’s action in deleting section two. The signing statement states that:

          Today I am signing into law S. 1963, which permits M embers of
       the United States Sentencing Commission whose terms have expired
       to continue to serve until either a successor takes office or the next
       session o f the Congress ends.

           The legislation does not specify whether it would apply to the
       current M em bers o f the Commission. W ere the Act read to apply to
       the current M em bers, it would appear to violate the Appointments
       C lause o f the Constitution by, in effect, permitting the M embers to
       extend the terms o f the office to which they were appointed by the
       President and confirmed by the Senate. Accordingly, I sign this
       legislation based on my understanding that it applies only to ap­
       pointm ents made after the date of enactm ent o f the Act, so as not to
       infringe on my constitutional appointment authority. This is in
       keeping with the well-settled obligation to construe ambiguous
       statutory provisions to avoid constitutional questions.

           I note that this interpretation o f the A ct is su p p o rted b y the fa c t
       th at the Senate d eleted fro m the A ct a p ro visio n that w ou ld have
       ex pressly a p p lie d it to current M em bers o f the Com mission.

Statem ent o f President George Bush Upon Signing S. 1963, II Pub. Papers 1432
(Aug. 31, 1992) (em phasis added).
   There are two problem s with giving much weight to President Bush’s signing
statement. In general, the use of presidential signing statements by the courts and
others as evidence o f legislative history and the weight to be given such evidence
— if it is to be given any weight at all — is controversial. See The L egal Signifi­
cance o f P resid en tia l Signing Statem ents, 17 Op. O.L.C. 131 (1993) (discussing
argum ents for and against such use o f presidential signing statements). Moreover,
we believe President B ush’s signing statement quoted above is subject to even less
weight than is norm ally appropriate because it is based on a misreading of the leg­
islative history. It simply is not true “that the Senate deleted from the Act a provi­

                                                36
                Opinion R egarding the Sentencing C om m ission H oldover A ppointees


sion that would have expressly applied it to [then] current Members of the Com ­
mission.” II Pub. Papers at 1432. The deleted section only applied to com m is­
sioners whose terms had already expired when the section was deleted; it did not
apply to those then serving as commissioners whose terms would expire after en­
actment o f the law. That fact makes questionable the inference drawn in the sign­
ing statement.
   Two other statements of congressional intent are contained in the House report
on S. 1963. H.R. Rep. No. 102-827, at 3 (1992). The section-by-section analysis
describes the effect o f the holdover statute:

            Section 1 of S. 1963 (the bill’s only section) amends 28 U.S.C.
         992(b) to provide for a voting member of the United States Sen­
         tencing Commission whose term has expired to continue to serve
         beyond the expiration date until a successor has taken office or until
         the end of [Congress’s next] session . . . . No distinctions between
         types of voting members is intended; this provision is intended to
         apply to all voting members of the Sentencing Commission, in­
         cluding those appointed to fill a vacancy that occurs before the ex­
         piration o f the term. In addition, the section is intended to have
         p rosp ective application only.

Id. (emphasis added).     The underlined language of the House report is also am­
biguous. One possible meaning of “prospective application only” is that the
holdover statute would apply to commissioners who were appointed to serve on the
Commission in the future but not to commissioners who were already serving on
the Commission. Another possible meaning of “prospective application only” is
that the holdover statute could not be invoked by a commissioner whose term had
already expired, i.e., the commissioners whose terms had expired in O ctober o f
1991. This second proposition is obviously true. If a com m issioner’s presidential
commission had expired, nothing short of a renomination, reconfirmation, and re­
appointment consistent with the Appointments Clause would allow the former
commissioner to serve again on the Commission. Thus, this statement in the House
Report, which is subject to two reasonable but different interpretations, is to no
avail in resolving the interpretive question.
   There is some unambiguous evidence in the legislative history to support the
plain meaning of the holdover provision. The congressional purpose in passing the
holdover statute, as expressed in floor statements and the House Report, would
apply equally to sitting commissioners and future members of the Com m ission.1
The House Report explained that the problem of vacancies on the Commission was
exacerbated by “the requirement that sentencing guidelines be promulgated or

  1 See H. R Rep. No 102-827, at 2-3, 138 C ong Rec 23,098-99 (1992) (statem ents o f Reps. S chum er and
Sensenbrenner)

                                                 37
                           Opinions o f th e O ffice o f L egal C ounsel


am ended with the support of at least four o f the seven authorized voting members
o f the Com m ission. Consequently, w henever there is less than a full complement
o f sentencing com m issioners, the w ork of the Commission may be impaired.” H.R.
Rep. No. 102-827, at 2. The House R eport also related that:

       On O ctober 31, 1991, the term s of three voting members of the
       Com m ission expired with no successors having been nominated.
       T w o of these term s remain unfilled at the time of the writing of this
       report — more than eight m onths later. * * * In 1989-90, the
       Com m ission was forced to operate approximately seven months
       with only four voting members. * * * This legislation is n eces­
       sa ry to ensure th at this situation is not re p ea ted w h en ever com m is­
       s io n e r s ’ term s expire in the fu tu re.

Id. (em phasis added).
    The situation that Congress was attem pting to prevent would exist now if the
holdover statute did not apply to com m issioners who were appointed prior to the
statute’s enactm ent. For this reason, we believe the legislative history of the
holdover provision, on balance, reinforces the plain meaning of the statute. At
worst, the legislative history is am biguous regarding whether Congress intended
the holdover statute to apply to com m issioners who were appointed before it was
passed. It is simply not conclusive enough to reject the plain meaning of the stat­
ute.
    W e do not believe that “the well-settled obligation to construe ambiguous
statutory provisions to avoid constitutional questions,” to which President Bush
referred in his signing statement, is to the contrary. II Pub. Papers at 1432. We
may not avoid all constitutional questions whenever a statutory ambiguity exists.
The Suprem e C ourt has instructed instead that statutes should be read, when fairly
possible, to avoid grave and doubtful constitutional questions. See Rust v. Sulli­
van, 500 U.S. 173, 191 (1991) (“[a] statute must be construed, if fairly possible, so
as to avoid not only the conclusion that it is unconstitutional but also grave doubts
upon that score”) (quoting United S tates v. Jin Fuey M oy, 241 U.S. 394, 401
(1916)). To begin with, we are not convinced that the interpretation of the statute
in President B ush’s signing statement is “ fairly possible.” This is because such an
interpretation would violate another canon of construction, the plain meaning rule,
and was based on an erroneous reading of the legislative history.
    M oreover, to satisfy the canon o f construction articulated in Rust, one interpre­
tation o f the statute m ust be necessary to avoid a “grave and doubtful constitutional
question[].” Id. at 191 (quoting U n ited S tates v. D ela w a re an d Hudson Co., 213
U.S. 366, 408 (1909)). The Supreme Court has explained that although this canon
is followed “out o f respect for Congress, which [is presumed to] legislate^ in the
light o f [its] constitutional limitations, . . . avoidance of a difficulty will not be

                                                38
              Opinion R egarding the Sentencing Com m ission H oldover A ppointees


pressed to the point of disingenuous evasion.” Id. (quoting M oore Ice Cream Co.
v. Rose, 289 U.S. 373, 379 (1933)). In Rust, for example, the Court concluded that
the constitutional questions were not so doubtful that it should read the statute as
precluding the questions. Id. As we explain in part II, we do not believe that the
constitutional question is so grave and doubtful that we should evade answering it.
    W e conclude that the holdover provision does apply to com m issioners who
were appointed prior to its enactment. By its own terms, the text of the holdover
provision applies to any “voting member of the Commission whose term has ex­
pired,” regardless of when the member o f the Commission was appointed. We also
find support for this interpretation in the legislative history of the holdover provi­
sion. Although the legislative history contains some ambiguous evidence of legis­
lative intent, we simply cannot say that it is sufficient to reject the plain meaning of
the statute.

                                              II.

    We next address whether the application of the holdover provision to com m is­
sioners who were appointed before its enactment violates the Appointments
Clause. The Appointments Clause provides that the President “shall nominate, and
by and with the Advice and Consent of the Senate shall appoint . . . [principal]
Officers of the United States.” U.S. Const, art. II, § 2, cl. 2. It further provides
that “the Congress may by Law vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the Courts of Law, or in the Heads of
Departm ents.” Id. The Commission is “an independent commission in the judicial
branch of the United States.” 28 U.S.C. § 991(a). See a lso M istretta v. U nited
States, 488 U.S. 361, 368, 384-94 (1989). The Com m ission’s seven voting mem­
bers are appointed by the President “by and with the advice and consent of the
Senate.” 28 U.S.C. § 991(a).
   The Appointments Clause by its terms and its structure prohibits Congress from
itself exercising the power to appoint “Officers of the United States.” S ee Buckley
v. Valeo, 424 U.S. 1, 126-28, 139 (1976) (per curiam). The text and structure of
the Constitution reflect a deliberate constitutional choice to deny to the legislature
the power to select the individuals who exercise significant governing authority as
(non-legislative) officers of the federal government. See id. at 128-31 (reviewing
the debates in the Philadelphia convention). That choice can be set at naught either
by legislation overtly vesting in Congress the power of appointment or by statutes
that functionally enable Congressional exercise of a power to appoint. This latter
concern arises most pointedly in connection with statutes that attempt to extend the
fixed tenure of an officer with a set term, thus denying the President the power he
would otherwise have to reappoint the officer or select someone else.
   In 1951, for example, the President requested the Justice D epartm ent’s views on
the validity of a statute extending the terms of the members of a commission: ac-


                                              39
                                     O pinions o f th e O ffice o f L egal C ounsel


cording to the original legislation creating the commission, the terms were to ex­
 pire in June 1951, but prior to that date Congress amended the legislation to extend
 the com m issioners’ tenure to August 1952. Acting Attorney General Perlman ad­
 vised the President that w hile he did not think “there can be any question as to the
power o f the Congress to extend the terms of offices which it has created,” that
 legislative power was subject “to the President’s constitutional power of appoint­
 ment and rem oval.” D isp la c ed P ersons C om m ission — Terms o f M em bers, 41 Op.
A tt’y Gen. 88, 90 (1951). However, because the legislation did not attempt to re­
strict the President’s authority to rem ove the com m issioners at will, it was consti­
 tutionally harmless: the President rem ained free to exercise his appointment power
simply by rem oving the incumbents from office. Id. (“As so construed, the
 [extension legislation] presents no constitutional difficulties”).2 See a lso Pension
A gents an d A gencies, 14 Op. Att’y Gen. 147 (1872) (discussing the President’s
power to remove officer serving a term extended by statute).
    W e think that the D epartm ent’s 1951 opinion adopted the correct approach to
this issue: while the pow er to lengthen the tenure o f an incumbent officer is inci­
dent to C ongress’s general power to create, determ ine the duties of, and abolish
offices,3 that power cannot legitimately be em ployed to produce a result that is,
practically speaking, a congressional reappointm ent to office or a removal from
office. This problem is not presented where a statutory change in the term of office
 is applied to subsequent appointees, for the appointing authority in the latter case
appoints to an office that includes the potential for holdover as one of its attributes.
W here a statutory change in the term of office is applied to incumbent officers,
however, we must analyze the statute to determ ine whether it amounts to a legisla­
tive exercise of the executive’s appointment powers.
    The situation presented by the holdover statute at issue is on a continuum be­
tween legislation that we would view as non-objectionable and legislation we
would view as constitutionally questionable. On one end o f the continuum is a
statute that extends the terms of officers whose appointment is vested in the Presi­
dent alone and who serve at the will and pleasure o f the President. The extension
o f these officers’ terms does not interfere with the appointing authority’s (here, the
President’s) power to terminate or reappoint a given officer. Such legislation ad­
justs the interval at which the President must either make another appointment or
face a vacancy, but does not infringe the appointm ent power. The President can
terminate and replace the person who is serving in the office at any time, notwith­

     2      C f In re Benny, 812 F 2d 1133, 1142-43 (9 th C ir. 1987) (N o m s , J , concurring in the judgm ent):
*‘[T ]he A pp o in tm en ts C lause preclu d es C ongress from extending th e terms o f incum bent officeholders I am
sim ply unable to see any prin cip led distinction b e tw ee n co n g ressio n al extensions o f the term s o f incum bents
and m o re trad itio n al form s o f congressional a p p o in tm en ts B oth im plicate the identical constitutional e vil—
congressio n al selectio n o f the individuals filling n onlegislative o ffice s ”
       S e e C renshaw v. U n ited S ta tes, 134 U S . 99 (1890), C ivil Service R etirem ent A ct — P ostm asters —
A u to m a tic S ep a ra tio n F rom th e S e rv ic e , 35 O p . A tt’y G en 309, 314 (1927): “ If, as stated in [Em bry v
U n ited S ta te s, 100 U S 6 8 0 (1 8 79)], Congress m ay at any tim e add to or take from com pensation fixed, it
m ay also, it w ould seem , by analogy, at any tim e shorten o r len g th en a term o f office ’*

                                                          40
                   Opinion R egarding the Sentencing C om m ission H o ld o ver A ppointees


standing the term extension. Approaching the other end of the continuum is a stat­
ute that lengthens the fixed terms o f officials who can be removed only for cause,
thus depriving the appointing authority of the opportunity to reappoint the incum­
bent or to chose someone else. In sum, the extension o f tenure o f officers serving
at will raises no Appointments Clause problem, but lengthening the term o f an offi­
cer who may be removed only for cause is constitutionally questionable.4
   However, this conclusion, which we think sound in principle, has been partly
rejected, at least in one context, by the courts. C ongress’s extension of the tenure
of bankruptcy judges (who can be removed only for cause) in the Bankruptcy
Amendments and Federal Judgeship Act of 1954 has been sustained repeatedly
against constitutional challenge. The leading case, In re Benny, held that a statu­
tory extension of tenure “becomes similar to an appointment” on ly “when it ex­
tends the office for a very long tim e.” 812 F.2d at 1141. See a lso In re Investm ent
Bankers, 4 F.3d 1556, 1562, 1563 (10th Cir. 1993) (“Although plausible argu­
ments can be raised in response to the reasoning adopted by the Benny court, we
are ultimately persuaded that this reasoning is correct;” noting that the Appoint­
ments Clause challenge “has been rejected by every court that has considered it”);
M atter o f Koerner, 800 F.2d 1358, 1366-67 (5th Cir. 1986) (“Congress has the
constitutional power to make reasonable changes in the duties of any office it cre­
ates, including shortening or lengthening the term of service. . . . Under the limited
circumstances of this case, . . . the action of Congress was a constitutionally rea­
sonable change in the term of an existing office”) (citations omitted). Although we
are not persuaded by Benny's reasoning, we must acknowledge that the courts may
follow B enny’s conclusion in analogous situations.5 In light of the fact that Benny


    4 In 1987, this O ffice opined that legislation extending the term s o f the certain m em bers o f the U nited
States Parole C om m ission w as an unconstitutional interference w ith the P resident's appointm ents pow er.
See R ea p p o in tm en t o f U nited S ta tes Parole C om m issioners, 11 Op. O L C 135 (1987) If, as we think likely
 under the rule o f W iener v U nited States, 357 U .S 349 (1958), the C om m issioners w ere rem ovable only for
cause, that conclusion was consistent with the earlier view s o f the A ttorneys G eneral, w hich we believe are
sound. H ow ever, the analysis in the opinion suggests that the extension legislation w as invalid be ca u se the
C om m issioners w ere “purely executive o fficers,” id. at 352, rem ovable (presum ably) by the P resident at will,
a line o f reasoning with w hich w e disagree T he opinion m ight be read to suggest that extension legislation
concerning officers rem ovable only for cause is not unconstitutional T h at conclusion may be d ictated by
judicial precedent, see m jra, but th e'reaso n in g w ould be contrary to our view of the better interpretation o f
the A ppointm ents C lause.
    5 B ennv stated that W iener im plicitly rejected any A ppointm ents C lause problem with term -extension
legislation, but that overreads the decision T h e date on w hich the P resident rem oved the p la in tiff in W iener
 from office was in fact within the term o f office for w hich the p laintiff w as originally appointed, although
part o f the back pay the p lain tiff ultim ately recovered was for a period after his original term w ould have
expired. S ee 357 U S. at 350-51 (the term sh o u ld have expired on M arch 1, 1954 as the law stood at the time
plaintiff was appointed, the President rem oved plaintiff on D ecem ber 10, 1953; p laintiff recovered back pay
for four m onths after M arch I, 1954 under a post-appointm ent extension o f term ) T h e additional Suprem e
C ourt cases that B enny and o th er courts have cited are distinguishable. See, e g , B ennv, 812 F .2d at 1141
(citing S h o em a ker v U nited States, 147 U S 282 (1893), w hich upheld legislation im posing additional
duties on an officer), In re Tom C arter E nters , 44 B.R. 605, 607 (B ankr. C .D . Cal 1984) (citing S h o e m a ke r
and cases d ealing w ith issues un d er the C o n tracts C lause and the Philippine O rganic Act) B e n n y also
pointed out that the First C ongress twice extended the tenure o f the first Postm aster G eneral. 812 F.2d at
 1142. W hile we agree that this fact supports the argum ent that C ongress generally possesses the pow er to

                                                         41
                                     Opinions o f the O ffice o f L eg a l Counsel


 does not rule out an Appointments C lause objection to legislation giving tenure for
 extraordinary long terms to incumbent officers removable only for cause, we be­
 lieve that a short term holdover provision is likely to be upheld by the courts.
    As we explained above, the holdover statute at issue is, constitutionally, some­
 where in between the situations we believe represent the two extremes. Although
 the voting m em bers o f the Commission do have tenure protection and new mem­
 bers o f the Com m ission must receive the advice and consent of the Senate before
they are appointed, the secured or “guaranteed” terms of office of hold-over mem­
bers are not being lengthened. The holdover provision simply allows them to con­
tinue to serve in office after their term s have expired until the earlier of two events:
“(A) the date on which a successor has taken office; or (B) the date on which the
C ongress adjourns sine die to end the session o f Congress that commences after the
date on which the m em ber’s term expired.” 106 Stat. at 933.
    W e must determ ine whether this change in the incumbent commissioners’ serv­
ice effectively frustrates the President’s appointm ent power or confers on the Leg­
islature a reappointm ent power (albeit for a short period o f time). As to the first
issue, the P resident’s formal appointment power is not affected in the least. He
may nom inate w hom ever he wants at precisely the same time as he could before,
presum ably in advance o f the expiration of the term he is seeking to fill. M oreo­
ver, it is not even clear that the effect of the holdover provision is to limit the dis­
cretion of the Executive, since it gives the President the option of retaining the
holdover officer until he chooses to nom inate a successor. In short, it is not clear
whether the appointing authority’s pow er is augmented or diminished by a holdo­
ver statute that applies to incumbent office holders. See FEC v. NRA P olitical
V ictory Fund, 6 F.3d 821, 824 (D.C. Cir. 1993) (holding that the N R A ’s challenge
to the alleged restriction on the President’s appointment power to select more than
three com m issioners from one party is not justiciable because “it is impossible to
determ ine in this case whether the sta tu te actually limited the President’s appoint­
ment power[;] . . . we [cannot] assume [] that the President wished to appoint more
than three m em bers of one party”).
    The only problem atic effect we see that the holdover statute could have on the
President’s pow er o f appointment is that the Senate might be less inclined to act on
a nom ination for bureaucratic or institutional reasons, such as a less pressing need
to act on a nom ination where there is a holdover, or for political or inter-branch
advantage. But all o f these reasons fo r Senatorial inaction are present for commis­
sioners who are appointed after the holdover statute is enacted, and there can be no
reasonable argum ent that the holdover statute as applied to subsequent appointees
is unconstitutional. It is simply not persuasive to argue that the President’s ap­
pointm ent pow er is effectively frustrated when incumbent commissioners hold over
but not when subsequent commissioners hold over.

e xtend term s, the o rig in al P o stm aster General serv ed at the p leasu re o f the President, and thus the First
C o n g re ss ’s actio n s placed no practical limitation o n the ap p o in tm en ts pow er

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             Opinion R egarding the Sentencing Com m ission H oldover Appointees


    With regard to Congress, we must still consider whether the application of a
holdover provision to incumbent officer holders with tenure protection amounts to
a legislative designation or legislative reappointment. Once again, there is no leg­
islative reappointment in granting future appointees holdover rights because when
the President makes a future appointm ent the holdover provision simply defines
one of the attributes of the office to which the appointment is made. However, in
his concurrence in Benny , Judge Norris argued that the problem with extending the
terms of incumbents lies in the fact that Congress can review the track record o f the
incumbents and manipulate the tenure of officials it likes and dislikes. 812 F.2d at
1143-44. As Judge Norris argued in the context of extending the fixed term of
bankruptcy judges:

          Congress can dictate with certainty who occupies an office by
       extending the terms of known incumbents. . . . By extending the
       terms of known incumbents, Congress can guarantee that its choices
       will continue to serve for as long as Congress wishes, unless the of­
       ficers can be removed. Thus, congressional extension can effec­
       tively block the exercise of appointing power by the only officials
       constitutionally authorized to exercise it— officials of the o th er
       branches of government. Selective exercise of this extension power
       could prove to be a potent political weapon. For example, if Con­
       gress wished to prevent the executive or judicial branch from filling
       an office about to become vacant with an appointee unfavorable to
       the prevailing congressional majority party, it could simply extend
       the incumbent’s term until a more favorable group of officials took
       control of either the executive or judicial branch. * * * In effect,
       extension statutes allow Congress to arrogate to itself one of the
       powers of appointment— the power of reappointment. Indeed, it is
       hard to see any distinction between the congressional extension at
       issue here and a statute expressly authorizing congressional reap­
       pointment of incumbents.

Id. (emphasis in original).
    Judge Norris was in the minority in Benny, and furthermore, there are several
important differences between the extension statute he was considering and the
holdover statute we are considering. For Congress to extend the tenure of a known
incumbent by means of a holdover statute beyond that desired by the President,
Congress not only would have to pass a holdover statute, over the President’s veto
if necessary, but the Senate would also have to cooperate in refusing to confirm the
President’s subsequent nominee. Such bad faith concerted action is too speculative
and hypothetical a basis to support a claim of unconstitutionality. Cf. NRA P o liti­
ca l Victory Fund, 6 F.3d at 824-25 (holding not justiciable the N R A ’s separation


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                                       Opinions o f th e Office o f L egal C ounsel


of pow ers claim that the President would have appointed other commissioners but
for the political party restriction in the statute).
   T here are tw o other important lim itations on the Congress’s power to frustrate
the President’s appointm ent power by means of this holdover statute. One limita­
tion is that the office probably is vacant for Recess Appointments Clause purposes,
and the President probably would be able to make a recess appointment to fill the
position w henever the Senate is in recess for the requisite length o f time.6 See U.S.
Const, art. II, § 2, cl. 3 (“The President shall have Power 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.”). The Department o f Justice has long
interpreted the term “Recess of the Senate” to include intrasession recesses if they
are o f substantial length.7 There usually is a recess of the Senate of sufficient
length to satisfy the constitutional standard in A ugust and December of each year.
   The Sentencing Commission holdover statute, moreover, contains its own time
limit. In Benny, the Ninth Circuit held that an extension o f a term o f short duration
did not constitute a congressional appointment:

           C ongress’[s] pow er to extend prospectively terms of office can be
           im plied from its power to add to the duties o f an office other duties
           that are germ ane to its original duties. Shoem aker v. U nited States,
           147 U.S. 282, 300-01 (1893). Logically, the only point at which a
           prospective extension of term o f office becomes similar to an ap­
           pointm ent is when it extends the office for a very long time. . . . [A]
           short extension, like the one at issue here [as much as a six year ex­
           tension, does not] preventf] those who have the appointment power
           from exercising that power.



     6 T h e re m ay be so m e qu estio n , however, w h e th er the p osition being filled by the holdover officer is va-
cant fo r recess a p p o in tm e n t p u rposes C om pare S ta eb ler v. C arter, 4 64 F. Supp. 585, 588-601 (D .D C
 1979) (h o ld in g that the FE C office was vacant fo r R ecess A pp o in tm ents C lause purposes when the incum ­
bent co n tin u e d to e x ercise authority pursuant to a holdover provision that provided that “[a] m em ber of the
C o m m issio n [F E C ] m ay serve on the C om m ission after the ex p iration o f his term until his successor has
taken o ffice ’*) w ith M a c k ie v. C lin to n , 827 F. S upp. 56, 58 (D .D .C . 1993) (w hether a vacancy exists for
R ecess A p p o in tm e n ts C lau se purposes depends on the w o rd in g and structure of the particular holdover
provisio n , d ecid in g that the Postal Service h o ld o v e r provision did not create a vacancy) The Sentencing
C o m m issio n h o ld o v e r statute has features in co m m on w ith the holdover statutes in both Staebler and
M ackie. A lth o u g h the Sentencing C om m ission holdover statu te is sim ilar to the w ording o f the statute in
S ta e b le r in tw o resp ects, there is a limitation o n the length o f tim e that the incum bent can hold over, which
the co u rt in M a ckie said was im portant in d ecid in g that a v acan cy did not ex ist in the office. Thus, in the
present c ase, it is u n c le ar w h eth er courts would h o ld that the P resident could exercise his recess appointm ent
pow er to oust a h o ld o v e r co m m issioner and fill the vacancy. W e believe that the better view is that this
h o ld o v e r statu te c re ates a vacancy for purposes o f the R ecess A p pointm ents C lause
     7 S e e g e n e ra lly E x e c u tive P o w er — Recess A p p o in tm en ts, 33 O p A tt'y G en. 20 (1921) (opining that the
P resid en t h ad the p o w er to m ake recess appointm ents d u n n g an intrasession recess o f the Senate lasting from
A ugust 24 to S e p te m b e r 21. 1921); Recess A p p o in tm en ts D u rin g an Intrasession R ecess, 16 Op O L C . 15
(1992), In tra sessio n R e c e ss A ppointm ents, 13 O p O L C . 271 (1989); R ecess A ppoin tm en ts Issues, 6 Op
O L C 5 8 5 (1 9 8 2 ).

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               Opinion R egarding the Sentencing Com m ission H oldover A ppointees


812 F.2d at 1141 (parallel citation omitted). Judge Norris disputed the short/long
distinction and the majority’s reliance on Shoem aker. He argued that:

          The congressional power to expand the duties of an existing of­
       fice is subject to a reasonable and relatively clear limitation: C on­
       gress may not devolve upon an officeholder responsibilities which
       are not germane to his existing duties [citing Shoem aker ]. W hen
       Congress merely adds duties to an office that are germane to the of­
       ficeholder’s existing duties, Congress has simply expanded the
       power of an official in the field and for a period of time in which a
       valid appointing authority has already entrusted him to act. The in­
       terference with the appointing authority’s choice of personnel is
       marginal. By contrast, it is apparent from reading the majority
       opinion that there is no principled or coherent limitation on the
       power to extend an incumbent’s term of office. * * * I fail to see
       how a line can be drawn between “short” and “long” extensions on
       any principled basis. The same constitutional evil the majority finds
       inherent in “long” extensions . . . is also present with short exten­
       sions. It is merely present for a shorter period of time.

Id. at 1145.
    Although we are not prepared to articulate the precise line at which an extension
would effect a congressional appointment, we do not share Judge N orris’s skepti­
cism either. In contrast to the hypothetical cases Judge Norris writes about where
there is no “principled or coherent limitation” on extending the term of office, there
is a “reasonable and relatively clear limitation” in the Sentencing Commission
holdover statute. In fact, we think that the time limit in the Sentencing Com m is­
sion holdover statute serves the same function, and is a close proxy for,
“germaneness” as that concept is used when Congress expands the duties of an
existing office. If the “interference with the appointing authority’s choice o f per­
sonnel is marginal” where additional but germane duties are added, we do not see
any reason why the interference is greater, at least in a constitutional sense, for
holdover provisions of short duration. We do not need to address the precise point
at which an extension becomes impermissibly long, because we are satisfied that
the time limit chosen by Congress in the Sentencing Commission holdover statute
is shorter than the time limit in Benny and comes with a venerable pedigree. The
time limit in the holdover provision at issue is almost identical to the one in the
Recess Appointments Clause. The Framers provided that the President alone could
fill vacancies in principal offices for this length of time without receiving the ad­
vice o f the Senate. In other words, they decided that keeping the governm ent run­
ning for this length of time was more important than adhering to the formalities of
the Appointments Clause. We conclude that this time limit is also a reasonable


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                                     Opinions o f th e O ffice o f L eg a l Counsel


length within which Congress may by law keep independent agencies running until
the appointing authority fills the position at issue.8

                                                          III.

   In sum m ary, we conclude that the holdover statute applies to the members of the
Com m ission who were appointed prior to its enactment. We also conclude that
such com m issioners may hold over without violating the Appointments Clause,
because the President rem ains free to appoint a successor who, upon confirmation,
would displace the holdover and because there is a reasonable limit to the period
during which they can serve as holdover commissioners.



                                                                    W ALTER DELLINGER
                                                                  A ssistan t A ttorn ey G eneral
                                                                    O ffice o f L egal Counsel




   8    W e d o not ad d ress o th e r hypothetical statu tes that are not neutral in th eir application For exam ple, we
do not a d d ress a statute that w ould create or rep eal holdover provisions fo r selective m em bers of the sam e
com m issio n o r for classes o f m em bers on the sam e co m m issio n , e.g., those appointed on a certain date or
those from a p a rtic u la r p o litical p arty Such statu tes m ight a m o u n t to a prohibited congressional designation,
even if the h o ld o v er perio d is for a short period o f tim e

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