  Applicability of Appointment Provisions of the Anti-Drug Abuse
               Act of 1988 to Incumbent Officeholders

Provisions of the Anti-Drug Abuse Act of 1988 requiring appointment by the President with the ad­
   vice and consent of the Senate for certain positions within the Department of Justice do not affect
   the tenure of incumbent officeholders who were appointed by the Attorney General.
                                                                                        December 12, 1988
             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
                                          for    A d m in i s t r a t io n

                                    Introduction and Summary
   This memorandum responds to your request of November 30, 1988, for the
opinion of this Office on the effect of provisions in the Anti-Drug Abuse Act of
1988 (“Act”) requiring appointment by the President with the advice and con­
sent of the Senate for certain positions within the Department of Justice.1 Specif­
ically, you would like our opinion on the effect of the new advice and consent
requirement on those persons currently holding those positions under appoint­
ments from the Attorney General. For the reasons set forth in this memorandum,
we believe that the tenure of the incumbent officeholders is unaffected by this
legislation. Congress has not indicated an intention to apply the advice and con­
sent requirements retroactively to the officers currently holding the affected po­
sitions. Moreover, we believe that any attempt by Congress to, in effect, remove
an executive officer by the retroactive application of new requirements for ap­
pointment would be unconstitutional.
   While we thus are confident that as a matter of law these incumbent office­
holders have full authority to act, we recognize that this authority may be chal­
lenged. In order to avoid any risk that litigation would cast doubt on the validity
of any action taken by incumbent officeholders, you may wish to recommend
that the Attorney General issue a conditional designation of the incumbent of­
ficeholders as acting officials— a designation that would be employed only in the
event that a vacancy were determined to exist in a judicial proceeding adverse to
our conclusion. In this manner the Department would both preserve its position

   1 The affected positions are the Director of the Bureau of Justice Assistance, the Director of the Office for Vic­
tims o f Crime, and the Director of the United States Marshals Service.

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that the incumbent officeholders continue to occupy their offices and yet validate
their actions in the unlikely event a court disagrees with this position.
                                                   Analysis
   As part of the Anti-Drug Abuse Act, Congress changed the method of ap­
pointment of three officers of the Department of Justice. These officers, the Di­
rector of the Bureau of Justice Assistance, the Director of the Office for Victims
of Crime, and the Director of the United States Marshals Service, previously were
appointed by the Attorney General. Under sections 6071, 7123, and 7608 of the
Act respectively these officers are to be appointed by the President, by and with
the advice and consent of the Senate.2 Although each of the provisions purports
to “establish” an office, in point of fact the offices already exist either by explicit
statutory enactment or by a delegation from the Attorney General pursuant to 28
U.S.C. § 510 and these provisions do not in any way purport to change the func­
tions of these offices. Moreover, neither the language nor legislative history of
these provisions suggests that Congress intended to abolish the existing offices
and instantaneously replace them with “new” offices bearing the same titles and
performing the same functions.3 Accordingly, we believe that these provisions
are not to be construed to effect a removal of incumbent officeholders and thus
that the new advice and consent requirements do not apply retroactively to these
officials, but only to their successors.
   Moreover, a construction of the provisions that would effect a removal of the
incumbent officeholders would raise the most serious constitutional questions.
The Department has consistently maintained that Congress cannot terminate the
terms of incumbent officeholders. See, e.g., Letter for Senator William V. Roth,
Jr., from Robert A. McConnell, Assistant Attorney General, Office of Legisla­
tive Affairs (June 20, 1984) (legislation that would have required the reconfir­
mation of incumbent officeholders upon the election of a President was uncon­
stitutional); Letter for David A. Stockman, Director, Office of Management and
Budget, from Robert A. McConnell, Assistant Attorney General, Office of Leg­
islative Affairs (June 27,1983) (legislation terminating terms of certain directors

    2 Section 6091 of the Anti-Drag Abuse Act of 1988,134 Cong. Rec. 33,194 (1988), amends 42 U.S C. § 3741(b),
which provided for the appointment of the Director of the Bureau of Justice Assistance by the Attorney General,
by requiring that the Director “be appointed by the President, by and with the advice and consent of the Senate.”
Section 7123 of the Act, 134 Cong. Rec. 33,307 (1988), establishes within the Department of Justice an Office for
Victims of Cnme, to be headed by a Director “who shall be appointed by the President, by and with the advice and
consent of the Senate.” Section 7608 of the Act, 134 Cong Rec. 33,251 (1988), establishes the United States M ar­
shals Service as a bureau within the Department of Justice. The Marshals Service is to be headed by a Director,
“who shall be appointed by the President, by and with the advice and consent of the Senate.”
    3 The only reference in the legislative history to Congress’ intent regarding these provisions concerns the Di­
rector of the United States Marshals Service. A section-by-section analysis of the U.S Marshals Service Act of
 1988, which eventually became section 7608 of the Anti-Drug Abuse Act of 1988, indicates that appointment of
the Director was made subject to the advice and consent of the Senate because it was “consistent with the similar
status accorded Assistant Attorneys General and heads of other major Department of Justice divisions.” 134 Cong.
Rec. 27,422 (1988). In addition, it was thought anomalous to have “an Attorney General appointee supervising the
activities o f 93 Presidentially appointed Marshals.” Id

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of Export Import Bank was unconstitutional). In particular, the Department has
indicated that the retroactive application of an advice and consent requirement
to an incumbent officeholder would unconstitutionally effect removal of that of­
ficer. See Memorandum for Fred F. Fielding, Counsel to the President, from
Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel (Nov.
24,1982); Letter for Representative Chet Holifield from Joseph T. Sneed, Deputy
Attorney General (Mar. 5,1973). Indeed President Nixon vetoed legislation that
would have applied a new advice and consent requirement to the incumbent Di­
rector and Deputy Director of the Office of Management and Budget on the
ground such retroactive application would amount to a “forced removal by an
unconstitutional procedure.” Veto Message of May 18, 1973, Pub. Papers of
Richard Nixon 539 (1973).
    We agree with this precedent and believe that retroactive application of Anti-
Drug Abuse Act’s advice and consent requirements would unconstitutionally ef­
fect a Congressional removal of officers of the United States who had been validly
appointed by the Attorney General. Myers v. United States, 272 U.S. 52, 122
(1926), makes clear that the removal of officers of the United States prior to the
expiration of their terms is vested exclusively in the President or in subordinate
executive branch officials acting under his supervision. Indeed, the square hold­
ing of Bowsher v. Synar, 478 U.S. 714 (1986), is that Congress cannot remove
officers of the United States by means other than impeachment.4 Unless and un­
til Congress chooses to invoke its impeachment power, it cannot interfere with
the tenure of a validly-appointed executive officer.5
    It is, of course, a cardinal principle of statutory construction that statutes should
be construed, if possible, so as to avoid constitutional questions. Association of
Machinists v. Street, 367 U.S. 740,749 (1961); Ashwander v. TVA, 297 U.S. 288,
347 (1936). In the absence of any indication of a legislative intent to apply these
provisions retroactively, and mindful of the serious constitutional objections that
would be raised by a contrary reading, we conclude that the advice and consent
provisions have prospective effect only and thus do not apply to the incumbent
officeholders.
    Although we have full confidence in the foregoing analysis, we note also that
the de facto officer doctrine, as least as traditionally understood, would place the
acts of these officers beyond legal challenge regardless of defects in their titles.
    4 Congress can, o f course, enact legislation permanently abolishing an office, in which case the incumbent would
no longer have a position to occupy.
    5 The fact that two of these offices (the Director of the United States Marshals Service and the Director of the
Office for Victims of Crime) were created by order of the Attorney General rather than by specific statutory en­
actment does not change our analysis. See A tt’y Gen. Order No. 516-73, 38 Fed. Reg. 12,917 (1973); Att’y Gen.
Order No. 1079-84. Congress has by statute vested the Attorney General with the authonty to take certain mea­
sures, including the creation of inferior offices within the Department of Justice, to carry out the functions of his
office. 28 U.S.C. § 510. Congress has now chosen to give these offices a more explicit statutory basis. The fact re­
mains, however, that these offices were ongm ally created pursuant to statutory authority Moreover, Congress has
not changed the functions of these offices* the Director of the United States Marshals Service and the Director of
the Office for the Victims of Crime, have essentially the same tasks as they had before the enactment of the Anti-
Drag Abuse Act Accordingly, these offices are analytically indistinguishable, for purposes of the retroactive ap­
plication of the advice and consent requirement, from any office created explicitly by statute.

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The courts have traditionally held that “[a] person actually performing the duties
of an office under color of title is an officer de facto, and his acts as such officer
are valid so far as the public or third parties who have an interest in them are con­
cerned.” National Ass’n of Greeting Card Publishers v. United States Postal Ser­
vice, 569 F.2d 570, 579 (D.C. Cir. 1976) (quoting United States ex rel. Doss v.
Lindsley, 148 F.2d 22,23 (7th Cir.), cert, denied, 325 U.S. 858 (1945)), vacated
and remanded on other grounds, 434 U.S. 884 (1977). There is doubt, however,
about the continued viability of the traditional understanding of the doctrine, at
least in the D.C. Circuit, as a result of Judge Wright’s opinion in Andrade v.
Lauer, 729 F.2d 1475 (D.C. Cir. 1984). There the court permitted a challenge to
the acts of allegedly improperly appointed officers, holding that the purpose of
the de facto officer doctrine (which the court identified as avoidance of whole­
sale invalidation of past actions through collateral attacks by third parties) could
be served by requiring the plaintiff (1) to bring his suit at or around the time that
the challenged government action is taken, and (2) to prove that the agency or
department involved has had reasonable notice of the claimed defect in the offi­
cer’s title. Id. at 1496-97, 1499.
   Accordingly, in the event that our legal analysis is rejected the Department can
no longer absolutely rely on the de facto officer doctrine to preclude legal chal­
lenges to actions taken by these officials. Although we believe the risk that a court
would reject our analysis is slight, it may be determined that even this level of
risk is unacceptable. In that event we recommend that the Attorney General, pur­
suant to his authority under 28 U.S.C. § 510, also designate the incumbent of­
ficeholders as acting officers. Because of our conclusion that the tenure of these
incumbents has not been (and could not be) disturbed by the Anti-Drug Abuse
Act, we stress that any designation of acting officer should be made conditional
upon the existence of a vacancy in that office as determined by a final court or­
der.
                                    Conclusion
   We conclude that the Anti-Drug Abuse Act of 1988 does not affect the tenure
of the incumbent directors of the Marshals Service, the Bureau of Justice Assis­
tance, and the Office for Victims of Crime and that these officeholders continue
to have full authority to take any action necessary to fulfill their duties. We be­
lieve, however, that the Attorney General may wish to consider issuing a condi­
tional designation of the incumbents as acting officers in the unlikely event that
a final court order determines that the Anti-Drug Abuse Act has removed these
officials.
                                                     D o u g l a s W . K m ie c
                                                 Assistant Attorney General
                                                  Office of Legal Counsel


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