      Authority of Executive Office of the President to Require
      Independent Agencies to Conduct Background Checks of
                    Noncareer SES Candidates

No office o r agency w ithin the Executive O ffice o f the P resident m ay require independent agencies
   to co n d u ct certain background checks o f candidates for noncareer S enior Executive Service posi­
   tions.

                                                                                                        April 30, 1998


                 M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t


  You have asked whether the Office of Presidential Personnel ( “ Presidential Per­
sonnel” ) may require that so-called independent agencies ensure that candidates
for noncareer Senior Executive Service (“ SES” ) positions undergo certain
reviews regarding their personal backgrounds, such as a review of Internal Rev­
enue Service records about any tax delinquency. In particular, you have asked
whether Presidential Personnel could prescribe such a rule for hiring noncareer
SES personnel at the Merit Systems Protection Board. As we already have advised
orally, we do not believe that any office or agency within the Executive Office
of the President (“ EOP” ), including Presidential Personnel, may exercise that
authority.1
  Involvement by the EOP in particular hiring decisions for SES positions at inde­
pendent agencies is specifically limited by 5 U.S.C. § 3392(d):

            Appointment or removal o f a person to or from any Senior Execu­
            tive Service position in an independent regulatory commission shall
            not be subject, directly or indirectly, to review or approval by any
            officer or entity within the Executive Office of the President.

5 U.S.C. § 3392(d) (1994). The Report of the Senate Committee on Governmental
Affairs expressly noted that subsection (d) was added “ in order to ensure that
independent regulatory agencies are not subject to political control in the appoint­
ment of their top noncareer executives,” and that “ this insulation from the White
House in appointments is necessary to maintain the independence of these agen­
cies, as intended by the Congress.” S. Rep. No. 95-969, at 76 (1978). Section
3392(d) thus specifically prohibits the EOP from reviewing any particular hiring
decision for noncareer SES positions at independent agencies.

   1 Far more complicated questions would be presented if the President himself, using his constitutional authority
as head o f the executive branch, U S Const art. II, § 1 , and his statutory authonty over the civil service, see,
e g , 5 U S .C §§3301, 7301, directed independent agencies to follow the procedures in question You have not
asked us to address these questions at this time If you wish us to do so, we would be happy to undertake that
analysis.


                                                         76
Authority o f Executive Office o f the President to Require Independent Agencies to Conduct Background
                                    Checks o f Noncareer SES Candidates

  A related provision governing appointment of personnel at the Merit Systems
Protection Board contains parallel limitations on EOP review of appointment
decisions. Section 1204 of title 5, which authorizes the Chairman of the Board
to appoint personnel “ as may be necessary to perform the functions of the
Board,” provides:

          Any appointment made under this subsection shall comply with the
          provisions of this title, except that such appointment shall not be
          subject to the approval or supervision of the Office of Personnel
          Management or the Executive Office of the President (other than
          approval required under section 3324 or subchapter VIII of chapter
          33).

5 U.S.C. § 1204(j) (1994). The approval required by §3324, referred to in paren­
theses, pertains to the appointment to a position “ classified above G S-15,” which
(with certain exceptions) “ may be made only on approval of the qualifications
of the proposed appointee by the Office of Personnel Management.” 5 U.S.C.
§ 3324(a) (1994). Subchapter VIII of chapter 33, in turn, refers to 5 U.S.C.
§§3391-3397, and therefore incorporates the limitations on EOP and OPM
approval set forth in §3392. As the conference report explains, § 1204(j) was
intended “ to prevent ‘political clearance’ of appointments.” S. Rep. No. 95-1272,
at 133 (1978). It was thought to be “ inappropriate for any unit of the White
House or the Office of Personnel Management to screen such candidates.” Id.
   As this statutory scheme makes clear, Presidential Personnel is specifically
prohibited from directly or indirectly reviewing the appointment of any particular
individual to an SES position at an independent regulatory commission. These
prohibitions apply with equal force to appointment or removal decisions regarding
such positions at the Merit Systems Protection Board.
   These provisions, while specifically applicable only to decisions about hiring
or firing particular employees, also lead to the conclusion that Presidential Per­
sonnel cannot impose a more general requirement for the procedures to be fol­
lowed by independent agencies in selecting SES personnel. Presidential Personnel
could enforce such a requirement only by reviewing and. refusing to approve par­
ticular candidates that independent agencies wanted to hire without completing
the mandated procedures. But it is precisely such review and approval that 5
U.S.C. §§ 1204(j) and 3392(d) forbid.2
   Finally, neither 5 U.S.C. § 1204(j) nor 5 U.S.C. § 3392(d) would bar Presidential
Personnel from recommending to independent agencies that they conduct the back­
ground reviews at issue here. Such recommendations, unlike requirements, would

   2 We assume that the relevant question here is whether Presidential Personnel can “ require” the general procedures
in the sense of compelling obedience to them In concluding that Presidential Personnel may not compel obedience,
we do not mean to suggest that it would be unlawful to issue such a directive, but rather that the directive would
be legally ineffective unless Presidential Personnel took further steps that the law would forbid


                                                        77
                   Opinions o f the Office o f Legal Counsel in Volume 22


not involve review or approval o f particular candidates for hiring and therefore
would not be barred by those statutes.

                                                               BETH NOLAN
                                                   Deputy Assistant Attorney General
                                                       Office o f Legal Counsel




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