                         Centralizing Border Control Policy Under the
                             Supervision of the Attorney General
         In general, the President may not transfer the functions of an agency statutorily created within one
            Cabinet department to another Cabinet department without an act of Congress.
         The President may not delegate his presidential authority to supervise and control the executive
           departments to a particular member of the Cabinet where no statutory authority exists to do so.
         The President may exercise his own power to establish a comprehensive border control policy for the
           federal government and direct a single Cabinet member to lead and coordinate the efforts of all
           Cabinet agencies to implement that policy.

                                                                                                March 20, 2002

                      LETTER OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT

            You have asked us to provide our views concerning what actions the President
         can take unilaterally and without congressional consent towards centralizing
         border control policy for the United States Government under the supervision of
         the Attorney General of the United States.
            Under current law, * the federal government’s control over the flow of people
         and goods into and out of the United States is divided among several agencies in
         different Cabinet departments, rather than centralized in a single department. The
         Immigration and Naturalization Service (“INS”) is statutorily housed in the
         Department of Justice, the U.S. Customs Service in the Department of the
         Treasury, and the U.S. Coast Guard in the Department of Transportation. Thus,
         each agency is headed by a different Cabinet secretary, each of whom, as principal
         officers of the federal government, reports directly to the President.
            In general, the President may not transfer the functions of an agency statutorily
         created within one Cabinet department to another Cabinet department without an
         act of Congress. We likewise believe that the President may not effectuate that
         very same transfer simply by delegating his presidential authority to supervise and
         control the executive departments to a particular member of the Cabinet, at least
         where no statutory authority exists to do so. However, the President may exercise
         his own power to establish a comprehensive border control policy for the federal



             *
               Editor’s Note: The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, estab-
         lished the Department of Homeland Security (“DHS”) as a Cabinet-level department and reorganized
         the allocation of statutory duties respecting border control policy that were the subject of this opinion.
         See 6 U.S.C. § 111(a) (Supp. II 2002) (establishing DHS); id. § 202(2)-(6) (listing DHS’s border
         control responsibilities); id. § 211(a) (establishing within DHS the United States Customs Service); id.
         § 251 (transferring to DHS certain functions of the Immigration and Naturalization Service); id.
         § 291(a) (abolishing the Immigration and Naturalization Service); id. § 468(b) (transferring to DHS the
         functions of the Coast Guard).




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             government, and then direct a single Cabinet member to lead and coordinate the
             efforts of all Cabinet agencies to implement that policy.

                                                           I.

                 The Constitution expressly provides that “[t]he executive Power shall be vested
             in a President of the United States of America.” U.S. Const. art. II, § 1, cl. 1. He
             alone is charged with the power to nominate the principal officers, id. art. II, § 2,
             cl. 2, and to “take Care that the Laws be faithfully executed,” id. art. II, § 3. It is
             thus well established that the President is “not only the depositary of the executive
             power, but the responsible executive minister of the United States.” Relation of the
             President to the Executive Departments, 7 Op. Att’y Gen. 453, 463 (1855).
                 The scope of the President’s executive power is limited, however, by the terms
             of all valid acts of Congress. Under the Constitution, it is Congress, not the
             President, that “make[s] all Laws which shall be necessary and proper for carrying
             into Execution . . . all . . . Powers vested by this Constitution in the Government of
             the United States, or in any Department or Officer thereof.” U.S. Const. art. I, § 8,
             cl. 18.
                 Accordingly, Congress may prescribe that a particular executive function may
             be performed only by a designated official within the Executive Branch, and not
             by the President. The executive power confers upon the President the authority to
             supervise and control that official in the performance of those duties, but the
             President is not constitutionally entitled to perform those tasks himself. It has long
             been established that, “[i]f the laws . . . require a particular officer by name to
             perform a duty, not only is that officer bound to perform it, but no other officer
             can perform it without a violation of the law; and were the President to perform it,
             he would not only be not taking care that the laws were faithfully executed, but he
             would be violating them himself.” The President and Accounting Officers, 1 Op.
             Att’y Gen. 624, 625 (1823). Instead the President may control the officer through
             various means such as the threat of removal. See, e.g., The Jewels of the Princess
             of Orange, 2 Op. Att’y Gen. 482, 489 (1831) (although the President “could only
             act through his subordinate officer . . . who is responsible to him, and who holds
             his office at his pleasure,” the power of “removal of the disobedient officer, and
             the substitution of one more worthy in his place, would enable the President,
             through him, faithfully to execute the law”).
                 We therefore conclude that the President may not transfer the statutory duties
             and functions of a bureau in one Cabinet department to another Cabinet depart-
             ment without an act of Congress. This Office has long held that transfers of
             statutory authority from one department to another “may normally be accom-
             plished only by legislation or by executive reorganization under the Reorganiza-
             tion Act.” Litigating Authority of the Office of Federal Inspector, Alaska Natural
             Gas Transportation System, 4B Op. O.L.C. 820, 823 (1980); see also Department




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         of Labor Jurisdiction to Investigate Certain Criminal Matters, 10 Op. O.L.C. 130,
         132 (1986) (same). The Reorganization Act, 5 U.S.C. §§ 901 et seq., once
         provided the President with a mechanism for instituting “executive reorganization”
         plans, subject to congressional veto, but Congress retired that authority at the end
         of 1984, see 5 U.S.C. § 905(b).

                                                      II.

             It has been suggested that the President might reorganize government opera-
         tions without running afoul of the law simply by delegating to a particular
         individual the President’s own constitutionally based executive power to supervise
         and control certain executive functions. Under this theory, the President could
         effectively transfer power over a particular matter from one Cabinet department to
         another by delegating to the head of that department the President’s power to
         supervise and control the actions of a subCabinet official in another department,
         and to enforce that control through the removal power.
             We believe that courts could well decide, however, that the President’s delega-
         tion powers do not extend so far because some “specific things must be done by
         the President himself.” Executive Departments, 7 Op. Att’y Gen. at 464. More-
         over, we caution that an unlawful delegation of power could present serious
         consequences for law enforcement in future cases. See, e.g., United States v. Soto-
         Soto, 598 F.2d 545, 549-50 (9th Cir. 1979) (where FBI agent was not authorized
         by statute to search trucks at border, customs authority had not been delegated to
         agent, and agent conducted search to discover if truck was stolen rather than to
         enforce importation law, agent’s warrantless search of truck was improper and
         evidence seized from search was inadmissible under exclusionary rule).
             With regard to the President’s statutory duties, “it is well settled that there
         exists in the President an inherent right of delegation.” Memorandum for the Files,
         Office of Legal Counsel, Re: Delegation of Presidential Functions at ii (Sept. 1,
         1955) (“1955 Memo”). As stated in Myers v. United States, 272 U.S. 52 (1926),
         “[t]he vesting of the executive power in the President was essentially a grant of the
         power to execute the laws. But the President alone and unaided could not execute
         the laws. He must execute them by the assistance of subordinates.” Id. at 117; see
         also 3 U.S.C. § 301 (authorizing President to delegate “any function which is
         vested in the President by law” or “any function which [an] officer is required or
         authorized by law to perform only with or subject to the approval, ratification, or
         other action of the President”).
             Generally speaking, however, “acts performable by the President[] as pre-
         scribed by the Constitution are not susceptible of delegation.” 1955 Memo at ii
         (emphasis added). As the Supreme Court has noted,




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                      [t]here are, undoubtedly, official acts which the Constitution and
                      laws require to be performed by the President personally, and the
                      performance of which may not be delegated to heads of departments,
                      or to other officers in the executive branch of the Government.

             McElrath v. United States, 102 U.S. 426, 436 (1880). Thus, the Executive Branch
             has always understood that the President may not delegate his pardon power to
             “another man, the Attorney General or anybody else.” Executive Departments,
             7 Op. Att’y Gen. at 464-65. Nor can the President delegate his power to appoint
             and remove Executive Branch officials. See id. at 465; 1955 Memo at 1-2 (listing
             “[o]rders removing Government Officials from office” among those “actions not
             delegable”).
                 To be sure, “[w]hether a particular act belongs to one or the other of these
             classes may sometimes be very difficult to determine.” McElrath, 102 U.S. at 436.
             We think it likely, however, that the President’s authority to control and supervise
             Executive Branch officials in one Cabinet department could not be delegated to a
             separate Cabinet department. After all, such authority rests substantially on the
             President’s removal power, a power that has long been understood not to be
             delegable. In addition, further support for our conclusion is found in our earlier
             opinion in which we raised doubts about the President’s ability to delegate his
             power to issue “Directives and Memorandums to Heads of Executive Departments
             and Agencies.” In that opinion, we stated that “[i]t is certainly questionable
             whether any one [sic] but the President personally could issue such a directive.”
             1955 Memo at *65-66. Likewise, we have opined that, where “the head of a
             department or agency is authorized to take [a particular action] by law but . . . does
             not wish to take the action . . . without the President’s approval or advice[,] the
             situation is one that normally calls for the personal attention of the President” and
             is therefore nondelegable. Id. at *67. * We see no meaningful difference between
             these presidential authorities and the supervisory power over executive depart-
             ments sought to be delegated in the present circumstance.

                                                              III.

                We believe that there are other ways, however, for the President to take steps to
             centralize and coordinate the border control policy of the United States or to direct


                 *
                   Editor’s Note: We refer here to star pages in the 1955 Memo because the original memo preserved
             in our day books is missing some pages at the end. The star pages that we cite in text are from a
             digitized copy that we used to replace the missing pages in our day books.
                 It should be noted that the 1955 Memo does not appear to have been a formal opinion or advice
             issued to a client but an internal reference. The Memo was also equivocal in its bottom-line assessment
             of whether the head of a department could actually delegate a statutory authority to the President. The
             question, the Memo said, was “too indefinite in nature to permit any conclusion to be made.” Id.




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         the Attorney General to lead that effort. That the President’s constitutional
         authority to supervise all Executive Branch agencies engaged in border control
         operations is probably not subject to delegation does not necessarily mean that the
         President may not formally and publicly designate certain Cabinet officers to assist
         him in that effort.
             The President may tap advisers within the White House or even outside the
         Executive Office of the President to work on his behalf. See Memorandum for
         Margaret McKenna, Deputy Counsel to the President, from John M. Harmon,
         Assistant Attorney General, Office of Legal Counsel, Re: Dual-Purpose Presiden-
         tial Advisers at 2 (Aug. 11, 1977) (“1977 Memo”) (unlike “heads of departments
         or agencies,” who “have statutory obligations” and “can and do act independently”
         of the President, the “sole function” of certain White House advisers “is to advise
         the President relative to his statutory and constitutional responsibilities,” and such
         advisers only “act at the direction of the President”). Although they carry no
         formal legal authority, in practice such advisers may exercise substantial authority
         over Executive Branch officials if it is well understood that they speak on behalf
         of the President. Cf. Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d
         898, 905 (D.C. Cir. 1993) (recognizing “[t]he President’s implicit authority to
         enlist his spouse in aid of the discharge of his federal duties”).
             The President similarly may designate Cabinet officers to advise him on his
         execution of nondelegable presidential duties. We have previously noted that
         individuals “who . . . have statutory obligations” as “heads of departments or
         agencies” may also be called upon to “advise the president and act at his direc-
         tion.” 1977 Memo at 2. See also Am. Physicians, 997 F.2d at 908 (noting that
         “Presidents have created advisory groups composed of . . . Government offi-
         cials . . . to meet periodically and advise them . . . on matters such as the conduct
         of a war”).
             Thus, the President may designate the Attorney General to serve as his chief
         adviser on issues relating to border control and instruct all other departments that
         the Attorney General speaks for him with respect to such policies. To be sure, the
         Attorney General could not exercise any nondelegable, presidential legal power
         over such agencies. For example, an official of that agency would not be subject to
         removal by the Attorney General. But the President could inform the heads of
         relevant agencies that he has directed the Attorney General to coordinate the
         implementation of specific border policies that the President has developed upon
         the advice of the Attorney General.
             There is precedent for formalizing such informal arrangements through the
         issuance of an executive order. Such orders make no explicit delegations of legal
         power, but instead implicitly announce allocations of authority by designating a
         particular Cabinet official as a presidential adviser or leader and coordinator of
         presidential policy. Executive Order 12250 of November 2, 1980, styled “Leader-
         ship and Coordination of Nondiscrimination Laws,” delegated certain statutory




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             presidential powers to the Attorney General. Id. § 1-1. But the Order also directed
             the Attorney General to “coordinate the implementation and enforcement by
             Executive agencies of various nondiscrimination provisions” contained in federal
             law, in order to further the President’s policy of “consistent and effective imple-
             mentation of various laws prohibiting discriminatory practices in Federal programs
             and programs receiving Federal Financial assistance.” Id. § 1-201, pmbl. The
             Order further directed all agencies to cooperate with the Attorney General and to
             issue only regulations that are “consistent with the requirements prescribed by the
             Attorney General pursuant to this Order” to the extent permitted by law. Id.
             § 1-402.
                 Another model is Executive Order 13228 of October 8, 2001, which established
             the Office of Homeland Security within the Executive Office of the President.
             Although that office has no statutory approval, the President directed the office to
             “develop and coordinate the implementation of a comprehensive national strategy
             to secure the United States from terrorist threats or attacks” and to “work with
             executive departments and agencies, State and local governments, and private
             entities to ensure the adequacy of the national strategy.” Id. §§ 2, 3(a). Moreover,
             the order expressly states that it “does not alter the existing authorities of United
             States Government departments and agencies.” Id. § 7. These orders thus merely
             create informal arrangements through which presidential policies are developed;
             they do nothing to disturb the statutory allocation of authorities amongst different
             agencies. Cf. Proposed Executive Order Entitled “Federal Regulation,” 5 Op.
             O.L.C. 59, 63 (1981) (approving executive order authorizing Director of the Office
             of Management and Budget to take certain oversight actions with regard to the
             administrative process and noting that “[t]he order does not empower the Direc-
             tor . . . to displace the relevant agencies in discharging their statutory functions or
             in assessing and weighing the costs and benefits of proposed actions”).
                 Accordingly, the President could issue an executive order that announces the
             President’s intention to develop a comprehensive national strategy to control the
             flow of people and goods across United States borders. This order would be
             undertaken to protect the national security and promote enforcement of federal
             law. The order could state the President’s intention to develop and maintain his
             border control policy only in close consultation with the Attorney General. The
             order could further require the Attorney General to lead and coordinate the effort
             of all federal agencies to comply with the President’s evolving policy, and direct
             all agencies to cooperate with the Attorney General.
                 Such an order would not vest the Attorney General with legal authority to
             control the actions of, for example, the Customs Service. The Customs Service
             would still take its orders from the Secretary of the Treasury, who in turn would
             receive policy direction from the President, acting through the Attorney General. If
             the Commissioner of the Customs Service or the Treasury Secretary were to refuse
             to carry out a specific directive from the Attorney General, the Attorney General




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         would have no authority to remove them or otherwise compel their acquiescence.
         At the same time, however, they would be contravening a presidential order and
         could be subject to presidential removal or other sanction. We believe that if the
         Commissioner or the Treasury Secretary disagreed with a policy communication
         from the Attorney General, the more likely course of action would be to appeal to
         the President to seek a clarification or modification of policy.
             Finally, we note the existence of certain statutory authorities for improving
         coordination between border control agencies which the order might direct the
         Attorney General to utilize. For example, under 8 U.S.C. § 1103(a)(6), the
         Attorney General may, with the consent of the head of another department, use an
         employee of that department to assist in performing the border control functions of
         the INS. The order thus could direct certain agencies to consent to such an
         arrangement. Similarly, 14 U.S.C. § 141 authorizes the Coast Guard both to lend
         its services and facilities to other agencies, and to avail itself of the resources of
         other agencies. The order might direct such cooperation between the Coast Guard
         and the Attorney General. We are not aware of any such authorities with respect to
         the Customs Service, however.

                                                               JOHN C. YOO
                                                       Deputy Assistant Attorney General
                                                           Office of Legal Counsel




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