                                                       O ctober 20, 1977


77-61    MEMORANDUM OPINION FOR THE
         COUNSEL TO THE PRESIDENT
         President’s Authority To Promulgate a
         Reorganization Plan Involving the Equal
         Employment Opportunity Commission


   This is in response to your request for the opinion of this Office on
two questions pertaining to the President’s authority to promulgate a
reorganization plan involving the Equal Employment Opportunity
Commission (EEOC). You have asked, first, whether EEOC is an
Agency in the executive branch so as to come within the President’s
authority under the Reorganization A ct of 1977; second, whether a
reorganization plan can vest in EEO C functions which are presently
lodged in the Department o f Labor. For the reasons that follow, we
answer the first question in the affirmative; your second question may
also be answered in the affirmative, provided certain other conditions
of the Reorganization Act o f 1977 are met.
                EEOC as an Executive Branch Agency
  Under the current Reorganization Act, the President may provide for
the transfer of functions only for present purposes, with respect to “an
Executive agency or part thereof.” See 5 U.S.C.A. §§ 902-3 (1977). One
prerequisite of a transfer o f functions to EEO C is thus a determination
that the agency is an “Executive agency.” We believe that there is little
doubt that it is such an “Executive agency.”
  This result can be reached by two different rationales. First, even the
so-called independent regulatory agencies have been considered “Ex­
ecutive” agencies for purposes of the Reorganization Acts. For exam­
ple, even though previous such Acts have provided that reorganization
plans could pertain only to agencies “in the executive branch of the
Governm ent,” see Reorganization A ct of 1949, §7, 63 Stat. 203, reorga­
nization plans have been proposed by the President, and allowed by
Congress, which involved the independent regulatory commissions. See
Reorganization Plan No. 3 o f 1961, 75 Stat. 837 (CAB); Reorganization
Plan No. 4 o f 1961, 75 Stat. 838 (FTC). The fact that EEOC would

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similarly come within the present Reorganization A ct is demonstrated
by a provision, enacted in 1972 with reference to a Reorganization A ct
containing provisions similar to those pertinent here, which indicated
that a statutory transfer of functions to EEO C could be aborted by a
reorganization plan. Equal Employment A ct of 1972, Pub. L. No. 92-
261, § 5, 86 Stat. 107, 42 U.S.C. (Supp. V) § 2000e-6(c).
   Under this rationale, however, a reorganization plan affecting the
EEOC could still be subject to certain restrictions if the EEO C were
deemed to be an “independent regulatory agency.” See 5 U.S.C.A.
§ 905(a)(1). We do not believe this to be the case. EEOC was created
by Title V II of the Civil Rights A ct of 1964, 42 U.S.C. § 2000e-4 et seq.
Its five members are appointed by the President with the advice and
consent of the Senate, to staggered 5-year terms; no provision is made
for the removal of the members from office. E EO C ’s functions, as
contemplated in the 1964 Civil Rights Act, were largely to investigate
and to conciliate.1 See 110 Cong. Rec. 7242 (1964) (remarks o f Senator
Case); see, also, M cGriff v. A. O. Smith Corporation, 51 F.R.D. 479, 482-
83 (D.S. Car. 1971). Congress clearly intended that EEOC should not
be vested with any power to adjudicate or to issue enforcement orders.
See 110 Cong. Rec. 6543 (1964) (remarks of Senator Humphrey); Fekete
v. United States Steel Corporation, 424 F. 2d 331, 336 (3rd Cir. 1970).
Moreover, while EEOC is empowered to issue guidelines, they are not
regarded as regulations having the force of law. See, General Electric
Company v. Gilbert, 97 S. Ct. 401, 410-11 (1976).
   The lack of any quasi-adjudicatory or quasi-legislative functions
vested in EEO C leads, in our view, to a conclusion that it is a part o f
the executive branch. As the Supreme Court indicated in Humphrey’s
Executor v. United States, 295 U.S. 602, 624 (1935), and Wiener v.
United States, 357 U.S. 349, 353-354 (1958), the inferences to be drawn
as to congressional intent on this matter rest largely on the functions
that the Agency is to perform. In those cases the quasi-legislative or
quasi-judicial functions lodged by Congress in the particular agencies
led to a conclusion by the Court that Congress meant for the agencies
to be independent; otherwise, the agencies could not perform their
required duties free of Executive influence. The lack of such functions
in EEO C and the consequent absence of any need to be independent of
the Executive suggests that Congress meant for EEOC to be subject to
Executive control.
   Other considerations support this result. First, it would raise serious
constitutional problems for an agency, shorn of any quasi-judicial or
quasi-legislative authority, to be set apart from the Executive; it cannot
be assumed that Congress would lightly intend such a result. M oreover,
there is no provision in the 1964 Civil Rights Act for the removal of
EEOC members for neglect of duty or malfeasance in office. Such a

 1 In 1972 Congress expanded EEO C’s powers by allowing it to bring certain enforce­
ment actions. See 42 U.S.C. (Supp. V) § 2000e-5.

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provision has been customarily included in statutes setting up regula­
tory agencies intended to be independent of Executive control, See, e.g.,
29 U.S.C. § 153(a) (NLRB); 49 U.S.C. § 1321(a)(2)(CAB), except for
those statutes passed in the interval between Myers v. United States, 272
U.S. 52 (1926), and Humphrey, see 15 U.S.C. 78d (SEC); 47 U.S.C. 154
(FCC). While Wiener v. United States, supra, held that the absence of a
specific provision for removal for cause does not necessarily imply that
the officer is subject to Executive control, the fact that such a provision
is not contained in Title V II of the Civil Rights Act seriously weakens
that argument when compared to the statutes creating other regulatory
agencies.
   The legislative history o f the 1964 Civil Rights Act does not suggest
a contrary result. Albeit, there are references in the history which
could be taken to indicate a legislative belief that EEOC was to be an
independent Agency. For example, the House committee report states
that the “Commission will receive the usual salaries of members of
independent regulatory agencies.” H.R. Rep. No. 914, 88th Cong., 1st
Sess. 28 (1963). Senator Hum phrey also stated that the EEOC statute
would be a “departure from the usual statutory scheme for independent
regulatory agencies.” 110 Cong. Rec. 6548 (1964). These limited re­
marks, however, do not shed any additional light on an intent that
EE O C was to be an independent Agency. If Congress had intended this
result, it presumably would have so indicated more clearly and explicit­
ly, particularly since it must have been aware that the “most reliable
factor” for drawing inferences as to independence—that of the agency’s
functions—would lead to a contrary conclusion. Wiener v. United
States, supra, at 353. In addition, it is not without significance that those
opposed to the Civil Rights Act referred, without rebuttal, to EEO C as
part of the executive branch. See 110 Cong. Rec. 7561, 7776, 8442
(1964) (remarks o f Senators Thurmond, Tower, and Hill).
   W e thus conclude that EEO C is an Agency within the executive
branch. This conclusion is consistent with earlier opinions of this Office
as to the status of EEOC.

          Transfer of Functions from the Department o f Labor
   The conclusion that E E O C is subject to the President’s authority
under the Reorganization A ct of 1977 is not the only condition for a
transfer of functions from the Department o f Labor to EEOC. One
other prerequisite is that th e Department of Labor must be an Execu­
tive agency—which, of course, it is. Two other general substantive
limitations must also be m et before a transfer of functions can be
accomplished. First, the President must find that changes in the organi­
zation of agencies are necessary to carry out the policies set forth in 5
U.S.C. § 901(a); this is not so much a legal determination as it is a
practical one. Second, a reorganization plan may not transgress the
limitations set forth in 5 U.S.C. § 905. While some legal issues may be
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presented here, they can properly be analyzed only in light of the
particular changes which are proposed. If you desire further advice on
this matter, we will be happy to evaluate any plan’s conformance to the
provisions in 5 U.S.C. § 905.
                                              L eo n U lm an
                               Deputy Assistant Attorney General
                                              Office o f Legal Counsel




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