   The President’s Power to Remove Members of the Federal
                     Council on the Aging

The text and legislative history of the statute creating the Federal Council on the Aging
  indicate that Congress did not intend to restrict the President’s power to remove his
  appointees to the Council. Neither the Council’s “independence” in terms o f its mem­
  bership and staff, nor its function o f providing advice to Congress necessarily suggest
  that Congress intended to restrict the President’s power o f free removal which is
  ordinarily incident to his pow er of appointment.
Because the structure and functions of the Federal Council on the Aging establish that it
  is a purely executive body, Congress could not constitutionally limit the President’s
  power to remove its members.

                                                                 November 13, 1981
    MEMORANDUM OPINION FOR THE COUNSEL TO THE
                   PRESIDENT

  You have asked for our opinion whether the President has the power
to remove the members of the Federal Council on the Aging (the
Council). In the absence of any evident congressional intent to limit the
President’s power of removal, and on the basis of well-settled principles
of constitutional law, we conclude, for reasons set forth below, that the
President does have the power to remove Council members.
                                    I. The Council

  The Council is established pursuant to 42 U.S.C. § 3015 (1976 &
Supp. Ill 1979). Its fifteen members are appointed by the President with
the advice and consent of the Senate to serve three-year terms. Id.
§ 3015(a). According to the statute, members “shall be appointed so as
to be representative of rural and urban older Americans, national orga­
nizations with an interest in aging, business, labor, and the general
public. At least five of the members shall themselves be older individ­
uals.” Id. § 3015(a). Since 1978 amendments, no full-time officer or
employee of the federal government may be appointed as a member of
the Council, id. 42 U.S.C. § 3015(a) (Supp. Ill 1979); and the Secretary
of Health and Human Services and the Commissioner on Aging are no
longer ex officio members of the Council. The statute does not expressly
provide for removal of Council members, nor does it expressly insulate
them from removal at the pleasure of the President.
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   Because the nature of the functions performed has come to be the
focus of the removal power as a matter of determining both congres­
sional intent and the limits of congressional power to restrict the Presi­
dent’s power to remove his appointees, we set out the Council’s duties
in full. As prescribed by statute, the Council shall:
          (1) advise and assist the President on matters relating to
       the special needs of older Americans;
          (2) assist the Commissioner [on Aging] in making the
       appraisal of [personnel] needs [in the field of aging] re­
       quired by section 3032 . . .;
          (3) review and evaluate, on a continuing basis, Federal
       policies regarding the aging and programs and other ac­
       tivities affecting the aging conducted or assisted by all
       Federal departments and agencies for the purpose of ap­
       praising their value and their impact on the lives of older
       Americans;
          (4) serve as a spokesman on behalf of older Americans
       by making recommendations to the President, to the Sec­
       retary [of Health and Human Services], the Commis­
       sioner, and to the Congress with respect to Federal poli­
       cies regarding the aging and federally conducted or as­
       sisted programs and other activities relating to or affect­
       ing them;
          (5) inform the public about the problems and needs of
       the aging, in consultation with the National Information
       and Resource Clearing House for the Aging, by collecting
       and disseminating information, conducting or commission­
       ing studies and publishing the results thereof, and by issu­
       ing publications and reports; and
          (6) provide public forums for discussing and publicizing
       the problems and needs of the aging and obtaining infor­
       mation relating thereto by conducting public hearings,
       and by conducting or sponsoring conferences, workshops,
       and other such meetings.
42 U.S.C. § 3015(d) (1976 & Supp. Ill 1979).
  The Council is further directed to undertake a thorough study and
evaluation of federal and federally assisted programs for older Ameri­
cans, including
          (A) an examination of the fundamental purposes of such
       programs, and the effectiveness of such programs in at­
       taining such purposes;
          (B) an analysis o f the means to identify accurately the
       elderly population in greatest need of such programs; and
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         (C) an analysis of numbers and incidence of low-income
       and minority participants in such programs.
42 U.S.C. § 3015(g)(2) (Supp. Ill 1979). The study may also include
          (A) an exploration of alternative methods for allocating
       funds under such programs to States, State agencies on
       aging, and area agencies on aging in an equitable and
       efficient manner, which will accurately reflect current
       conditions and insure that such funds reach the areas of
       greatest current need and are effectively used for such
       areas;
          (B) an analysis of the need for area agencies on aging to
       provide direct services within the planning and service
       area; and
          (C) an analysis of the number of nonelderly handi­
       capped-in need of home delivered meal services.
42 U.S.C. § 3015(g)(3) (Supp. Ill 1979).
  The statute also authorizes staff personnel for the Council and re­
quires the head of each federal department and agency to provide the
Council with information and other assistance. 42 U.S.C. § 3015(e)
(Supp. Ill 1979). At least annually, and more often as the Council
deems advisable, the Council is required to report its findings and
recommendations to the President, who then transmits the report to
Congress, with his comments and recommendations. Id. § 3015(f).
                        II. Statutory Interpretation

   In the context of a statute that is silent on the issue of the President’s
removal power, it is sometimes difficult to separate the statutory analy­
sis from the constitutional analysis. Nevertheless, we focus initially on
the statutory scheme and the legislative history because of the familiar
injunction that decision on constitutional grounds should be avoided if
a statutory ground is sufficient. See Ashwander v. Tennessee Valley
Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). The
statute itself, as we have noted, is silent on the question of removal.
Nevertheless, the history of the Council indicates that Congress could
not have intended that its members would not be freely removable by
the President.
   The Council is the most recent successor to various presidential
advisory commissions on the aging. National conferences on aging were
held in 1950 and 1952. On March 21, 1956, President Eisenhower
summarized recent and proposed actions of the federal government
affecting older citizens and announced his intention to create a federal
council on aging. Established in April 1956, this first council was
composed of representatives of various government agencies. The
council called for another conference on aging, which was held in June
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1956. Following two congressionally authorized studies of problems
related to the aging, the White House Conference on Aging Act of
1958 (Pub. L. No. 85-908, 72 Stat. 1746) was passed to provide for a
White House Conference on Aging, to be called by the President in
 1961. The Conference made recommendations for continuing and ex­
panding federal and state programs for the elderly, including establish­
ment of a federal coordinating agency. See generally S. Rep. No. 247,
89th Cong., 1st Sess., reprinted in 1965 U.S. Code Cong. & Ad. News
1884.
   As a follow-up to the Conference, President Kennedy established the
President’s Council on Aging in May 1962. Exec. Order No. 11,022, 3
C.F.R. 602 (1959-1963 Comp.). This Council was also composed of
Cabinet officers and other federal officials and was directed to study
the problems of the aging and make recommendations to the President
for policies and programs.
   The first statutory authority for an advisory council on aging was
provided by the Older Americans A ct of 1965, 42 U.S.C. § 3001 et seq.
(1976 & Supp. Ill 1979) which established an Advisory Committee on
Older Americans comprised of the Commissioner on Aging and fifteen
members appointed by the Secretary of Health, Education, and Welfare
(HEW). The Committee was to advise the Secretary on matters bearing
on his responsibilities under the Act and related activities of the De­
partment of HEW. Members were selected with experience in the field
of interest in the particular problems of aging. See generally, H.R. Rep.
No. 1203, 92d Cong., 2d Sess. 8 (1972); H.R. Rep. No. 1150, 95th
Cong., 2d Sess. 5, reprinted in 1978 U.S. Code Cong. & Ad. News 3388,
3392. In 1967, the Secretary was authorized to provide staff for the
Advisory Committee.
   By 1972, Congress noted that the problems, issues, and recommenda­
tions of the White House Conference on Aging went far beyond the
activities of the Department of HEW. The House Committee on Edu­
cation and Labor accordingly recommended the establishment of a
presidential advisory committee. The bill, H.R. 15657, 92d Cong., 2d
Sess. (1972), would have replaced the Advisory Committee with a
national advisory council to “advise and assist the President on matters
relating to the special needs of older Americans.” The Senate version
of the bill would have established the Older Americans Advocacy
Commission, “charged with the duty of advocating the interests of
older Americans throughout the whole range of federal activities.” See
H.R. Rep. No. 43, 93d Cong., 1st Sess. 10, reprinted in 1973 U.S. Code
Cong. & Ad. News 1327, 1336. The Commission would also have been
empowered to evaluate existing programs to inform the public about
the needs and concerns o f the aging and the relevant federal activities.
Id.

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   The bill as it emerged from the conference committee was the origin
of the present Federal Council on the Aging. The committee adopted
that name and consolidated the functions as provided in the House and
Senate bills. The bill was later vetoed by the President, but it provided
the basis for the 1973 amendments to the Older Americans Act of 1965,
which did establish the Council. The House committee in 1973 repeated
the conference statement that “ ‘[i]t is the intention of the conferees that
this body function as more than a passive advisory body, and that it
work to actively promote the interests of older Americans throughout
the whole range of federal policies and programs affecting them.’ ”
 1973 U.S. Code Cong. & Ad. News, supra, at 1336. The Council was
further charged with undertaking three studies of benefit programs,
taxes, and transportation needs.
   The Older Americans Act was amended again in 1978. The House
report explained that “[a]s a spokesman and advocate on behalf of the
elderly, the committee believes that the Council should have a greater
degree of independence.” 1978 U.S. Code Cong. & Ad. News, supra, at
3398. The changes that were made “to strengthen the independence of
the Council,” ibid., were precluding full-time employees of the federal
government from membership on the Council and specifically authoriz­
ing staff for the Council. The first change was intended “to eliminate
the potential for conflicts of interest” and thereby improve the Coun­
cil’s objectivity in making recommendations. Id. at 3398. The second
change was designed to relieve the Council’s dependence for staff on
the Administration on Aging in the belief that the Council “could be
more effective in obtaining information on advising the President and
the Congress.” Id. at 3399.
   At no time in the long evolution of the present Council did Congress
express any intent to limit presidential control, including removal, over
the membership. Prior to the statutory authorization in 1965, of course,
there could have been no serious contention whatsoever that the presi­
dential appointees were not freely removable. And at no time in the
course of enacting the various statutes creating or affecting the Council
did Congress ever express a contrary belief or intent.
   We do not regard the latest House report’s use of the word “inde­
pendence” as requiring a different conclusion.1 The report specifically
explains that the “independence” desired for the Council would affect
its relationship to other federal agencies, especially the Commission on
Aging, and not the President. This “independence,” in terms of Council
membership and staff, would avoid conflicts of interest and improve the
objectivity and efficiency of the Council. Recognizing the President’s

   ‘The concept o f “independence” also appears in the context of the description of the Older
Americans A dvocacy Commission as created by the Senate version of the 1972 bill. W hatever was
meant by the reference, however, the structure did not prevail in the conference committee, which
adopted the House version. See S. Conf. Rep. No. 1287, 92d Cong., 2d Sess. 46 (1972). The bill, in any
event, was vetoed.

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power to remove creates no conflict of interest. Successor appointees
must still exclude full-time federal employees. Nor does removal of the
Council’s members directly affect its staff. In any event, “independ­
ence” was desired with the specific intent to improve the Council’s
ability to perform its duty of advising the President. The relationship
and responsiveness of the Council to the President was strengthened,
not weakened. The removal power is consistent with this relationship.2
                                 III. Constitutional AasAysis

   We examine briefly the relevant principles of constitutional law by
way of reinforcing our conclusion that the statute does not limit the
President’s power to remove Council members.3
   We start with the long established rule that “[i]n the absence of all
constitutional provision or statutory regulation, it would seem to be a
sound and necessary rule, to consider the power of removal as incident
to the power of appointment.” In re Hennen, 38 U.S. (13 Pet.) 230, 259
(1839); see also Myers v. United States, 272 U.S. 52 (1926); Sampson v.
Murray, 415 U.S. 61, 70 n.17 (1974). The mere specification of a term of
office is not such a specific provision. See Parsons v. United States, 167
U.S. 324 (1897); Martin v. Tobin, 451 F.2d 1335 (9th Cir. 1971). Under
the general rule, the President’s power to appoint the Council members
empowers him to remove them.4
   Exceptions to this rule are narrowly defined. Congress can constitu­
tionally restrict the President’s power to remove a federal officer only
if he or she is a member o f a so-called “independent” agency, not part
of the Executive Branch, and the agency’s primary functions are quasi­
legislative or quasi-judicial and “require absolute freedom from Execu­
tive interference.” Wiener v. United States, 357 U.S. 349, 353 (1958); see
Humphrey's Executor v. United States, 295 U.S. 602 (1935).
   Although closely allied to the Commission on Aging, which is estab­
lished in the Office of the Secretary of Health and Human Services, see
42 U.S.C. §3011(a) (1976 & Supp. I ll 1979), the Council is not ex­
pressly lodged within an executive department. The Council’s func-

   2 W e attribute very little significance to the fact that the Council, as recently as 1978, was thought
to be a source of advice to Congress itself. Congress may, of course, utilize its own committees for the
gathering of information, or it may, through its own offices, appoint advisory committees to assist it in
the perform ance o f its legislative functions. If, however, Congress creates by statute an advisory body
whose primary responsibility is to advise the Executive and, in doing so, Congress places the power of
appointm ent in the President, we believe that Congress must be assumed to have been aware that as a
practical matter, the appointees w ould be dependent on the President as appointing authority, rather
than Congress, and that as a constitutional matter, the power of free removal would inhere in the
structure chosen.
   3T he statute, o f course, must be construed to avoid an unconstitutional result. International Ass’n o f
Machinists v. Street, 367 U.S. 740, 749 (1961); Crowell v. Benson, 285 U S. 22, 62 (1932).
   4T he requirement under the statute of Senate advice and consent to the presidential appointees does
not in and o f itself limit the President’s power of removal. C f Myers v. United States, 272 U.S. 52,
119-25 (1926).

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tions, however, leave no doubt that it is executive in nature. We
examine both what the Council does and what it does not do.
   By congressional intent expressed in the legislative history and by
design embodied in the statute, the Council is an advisory body. It was
intended, and its duties as prescribed by statute effectuate the intent,
that the Council advise, assist, review, evaluate, advocate, inform, and
study. The recipients of the Council’s advice, assistance, and recom­
mendations are primarily the President, the Secretary of Health and
Human Services, and the Commissioner on Aging; 5 and generally, the
advice, assistance, and recommendations are intended to enhance the
recipient’s own performance of statutory responsibilities. In the context
of examining the nature of the functions of another advisory body
created to advise an executive department, the District Court for the
District of Massachusetts recently recognized that giving advice and
making recommendations “fall into the category of ‘purely executive.’ ”
Martin v. Reagan, 525 F. Supp. 110, 113 (D. Mass. 1981) (National
Institute of Justice Advisory Board). See also Patino v. Reagan, Civil
No. S -81-469 MLS (E.D. Cal. Sept. 29, 1981) (same).
   If the executive nature of the Council’s duties left any doubt regard­
ing the inability of Congress to limit the President’s power to remove
its members, any such doubt is overcome by the fact that the Council
performs no quasi-legislative or quasi-judicial functions as those func­
tions are described in the cases. See Humphrey’s Executor v. United
State, supra;6 Wiener v. United States, supra.7 In short, there is no basis
for concluding that the Council’s functions “require absolute freedom
from Executive interference.” Wiener, 357 U.S. at 353.
   In sum, the text and history of the statute, as interpreted in light of
the relevant constitutional principles, impose no limitation on the Presi­
dent’s power to remove members of the Council. The President, there­
fore, has authority to remove them at his pleasure.
                                                            L a r r y L . S im m s
                                                  Deputy Assistant Attorney General
                                                      Office o f Legal Counsel




   * Reports to Congress are passed first to the President for his comments and recommendations. See
42 U.S.C. § 3015(0-
   ‘ Members o f the Federal Trade Commission were held to be protected from removal because the
Commission was "an administrative body created by Congress to carry into effect legislative policies
embodied in the statute in accordance with the legislative standard therein prescribed, and to perform
other specified duties as a legislative or as a judicial aid.” 295 U.S. at 628.
   ’ Members o f the W ar Claims Commission were held to be protected from removal because they
had the responsibility to adjudicate claims against the United States “according to the law,” Le., “on
the merits o f each claim, supported by evidence and governing legal considerations." 357 U.S. at 355.

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