                Proposed Commission on Deregulation of
                     International Ocean Shipping

Individuals who serve on a purely advisory Com mission on the Deregulation of International
   O cean Shipping need not be officers o f the United States. Appointment of M embers of
   C ongress to such a Commission does not implicate the Incompatibility Clause, U.S. Const,
   art. I, § 6, cl. 2. A provision authorizing the congressional leadership to make recommenda­
   tions for appointm ents to the Com m ission does not limit the President’s ultimate responsibil­
   ity for such appointm ents.

The proposed C om m ission may not hold a witness in contem pt for failure to comply with a
  C om m ission subpoena or to testify. Rather, the Com mission should be required to seek a
  court order com pelling compliance.

                                                                                 December 21, 1983

      M   em orandum       O p in io n   for th e     A s s is t a n t A t t o r n e y G e n e r a l ,
                            O f f ic e   of   L e g is l a t iv e A f f a ir s


   This responds to your request of December 5, 1983 for our comments on
§ 17 of S. 47, the Shipping Act of 1983. Section 17 would establish a Commis­
sion on the Deregulation of International Ocean Shipping (Commission). The
Commission would be comprised of twenty-two members drawn from both the
Executive and Legislative Branches and from the private sector. The Executive
Branch would be represented by the President, the Secretary of State, the
Attorney General, the Secretary of Transportation, the Chairman of the Federal
Trade Commission, and the Chairman of the Federal Maritime Commission or
their designees. Proposed § 17(a)(2)(A), (B). The Legislative Branch would be
represented by eight Members of Congress, four from the House of Represen­
tatives and four from the Senate, chosen by the President from members of
particular committees. Id. § 17(a)(2)(C), (D). The majority leader of the Senate
and the Speaker of the House of Representatives would make recommenda­
tions on these appointments. The private sector would be represented by eight
citizens chosen by the President. Id. § 17(a)(2)(E).
   An examination of the bill indicates that the Commission’s functions, id.
§ 17(c), are purely advisory: the Commission is to make a comprehensive
study of particular issues involved in deregulation of ocean shipping and
submit a report making recommendations to Congress and the President. Id.
§ 17(e). Thus, individuals who serve on this Commission will possess no
enforcement authority or power to bind the Government and therefore need not
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be officers of the United States. Buckley v. Valeo, 424 U.S. 1, 126, 141 (1976).
Therefore, appointment of Members of Congress does not implicate the Incom­
patibility Clause of the Constitution. U.S. Const, art. I, § 6, cl. 2. We also read
§ 17(a)(4), pursuant to which the Senate Majority Leader and the Speaker of
the House of Representatives make recommendations for appointments under
§ 17(a)(2)(C) & (D), as in no way limiting the President’s ultimate responsibil­
ity for the selection of the members of the Commission. That ultimate responsi­
bility must include the power to refuse to appoint any person recommended and to
request the submission of another recommendation if a nominee appears unsuitable.
   We must object, however, to § 17(d), which provides that failure of a witness
to comply with a Commission subpoena or to testify when summoned will be
punishable under 2 U.S.C. §§ 192- 194. These are the provisions applicable to
contempt of Congress, and they provide for summary process. Whoever fails to
comply with a request for information is “deemed guilty of a misdemeanor”
and the matter is referred to the appropriate United States Attorney for prosecu­
tion. Id. §§ 192, 194. By contrast, under the numerous provisions for enforce­
ment of Executive Branch agency and independent regulatory commission
subpoenas, the agency or commission must apply, usually through the Attorney
General, to a court for an order directing the subpoenaed individual to comply
and it is the court order that an individual must comply with, not the agency
request. The individual is punished for contempt of court, not contempt of the
agency.
   This distinction is rooted in both constitutional and policy concerns. In 1894,
the Supreme Court stated that the Interstate Commerce Commission could not,
consistent with due process, enforce its own subpoenas by being given the
power to commit or fine people for disobedience:

       The inquiry whether a witness before the Commission is bound
       to answer a particular question propounded to him, or to pro­
       duce books, papers, etc., in his possession and called for by that
       body, is one that cannot be committed to a subordinate adminis­
       trative or executive tribunal for final determination. Such a body
       could not, under our system of government, and consistently
       with due process of law, be invested with authority to compel
       obedience to its orders by a judgment of fine or imprisonment.
       Except in the particular instances enumerated in the Constitu­
       tion, and considered in Anderson v. Dunn, 6 Wheat. 204, and in
       K ilboum v. Thompson, 103 U.S. 168, 190, of the exercise by
       either house of Congress of its right to punish disorderly behav­
       ior upon the part of its members, and to compel the attendance of
       witnesses, and the production of papers in election and impeach­
       ment cases, and in cases that may involve the existence of those
       bodies, the power to impose fine or imprisonment in order to
       compel the performance of a legal duty imposed by the United
       States, can only be exerted, under the law of the land, by a
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           competent judicial tribunal having jurisdiction in the premises.
           See W hitcom b’s Case, 120 Mass. 118, and authorities there
           cited.
IC C v. Brimson, 154 U.S. 447, 485 (1894). Since then, Congress has “never”
conferred the power to enforce a subpoena on an issuing agency. L. Jaffe & N.
Nathanson, Administrative L aw 439 (1976). Thus, there has been no occasion
for the Court to reexamine Brimson. Although there has been continuing debate
over B rim son’s analysis,1the fact remains that Brimson is the Supreme Court’s
last word on the subject, and in that case the Court distinguished Congress’
contempt power as being rooted in the Constitution and historical precedent,
and which the Court has recognized is subject to limits. See, e.g., M arshall v.
Gordon, 243 U.S. 521 (1917). Although modem legal theory is less hostile to
coercive agency action than when Brimson was decided, there is at the same
time more sensitivity to arguments that due process requires that the prosecutor
not also be the judge.2 It is not clear to which branch of the government the
Commission belongs. If Congress intends the Commission to be part of the
Executive Branch, we are reluctant to approve the use of 2 U.S.C. §§ 192 and
194, and would urge rather that the power to enforce subpoenas be modeled on
that traditionally given agencies. See, e.g., 7 U.S.C. § 2717. This is especially
true when there is no need to press for this extraordinary power. Other advisory
commissions, charged with equally important tasks, have been able to rely on
the courts to enforce their subpoenas. Likewise, federal agencies have func­
tioned to Congress’ satisfaction for decades without this power. If, on the other
hand, the Commission is meant to be part of the Legislative Branch, similar to
the Commission on Security and Cooperation in Europe, 22 U.S.C. § 3007(b),
the bill should be amended to say so specifically.

                                                                       L a r r y L . S im m s
                                                          D eputy Assistant Attorney General
                                                               Office o f Legal Counsel




  1 See K. D avis, Administrative Law Treatise 21 4 -1 5 (1958); Note, Use o f Contempt Power to Enforce
Subpoenas and Orders o f Administrative Agencies, 71 Harv. L. Rev. 1541 (1958). See also Federal Maritime
Comm'n v. New York Terminal Conference, 373 F.2d 424, 426 n.2 (2d Cir. 1967).
  2See, e.g.. Ward v. Village o f Monroeville, 409 U.S. 57 (1972); Morrissey v. Brewer, 408 U.S. 4 7 1 ,4 8 5 -8 6
(1972).

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