                                                                                                         April 19, 1978


78-21            MEMORANDUM OPINION FOR THE
                 GENERAL COUNSEL, DEPARTMENT OF
                 HOUSING AND URBAN DEVELOPMENT

                 Department of Housing and Urban
                 Development— Delegations of Authority—
                 42 U.S.C. §§ 3533, 3535


   This responds to your request for our opinion concerning concurrent
delegations in the Department of Housing and Urban Development (HUD).
Generally, they consist of the delegation of authority by the Secretary of HUD
to an officer required to be appointed by the President by and with the advice
and consent of the Senate1 and to that officer’s deputy appointed by the
Secretary2 in such fashion that the deputy may exercise the authority when both
are on duty.
   The Secretary’s delegations to his or her principal officers3 are authorized,
and indeed required, because the Department of Housing and Urban Develop­
ment Act and other statutes administered by the Secretary vest most, if not all,
of the functions of the Department in the Secretary.4 But the Act also provides
that the principal officers o f the Department are to:
        perform such functions, powers and duties as the Secretary shall
        prescribe from time to tim e.5
The delegations to the deputies are based on § 7(d), 42 U .S.C . § 3535(d),
pursuant to which:
          The Secretary may delegate any o f his functions, powers, and duties
        to such officers and employees o f the Department as he may


    'D e p a rtm e n t o f H o u sin g an d U rb an D e v elo p m en t A ct (A c t), § 4 (a ), 79 S tat. 6 6 8 , as a m e n d ed ,
42 U .S .C . § 3 5 3 3 (a); see also 4 2 U .S .C . § 3 5 3 3 a.
   2S ectio n 7 (c) o f the A c t, 4 2 U .S .C . 3 5 3 5 (c).
   ’T h e term “ p rin cip al o ffic e r” in clu d es th e U n d e r S e c re ta ry , the A ssista n t S e c re ta rie s, the
O eneral C o u n se l, an d the F e d e ra l In su ra n c e A d m in istra to r. A c t, § 4 (a ). W e re fe r to th e m as
A ssistant S ec re ta rie s.
   4S ection 4 o f th e A c t, 4 2 U .S .C . § 3 5 3 4 ; see also, e.g., th e N atio n al F lood In su ra n c e A ct o f
1968, P u b . L . N o . 9 0 -4 4 8 , T itle X III, 82 S ta t. 57 2 .
   ’ S ectio n 4 (a ), 4 2 U .S .C . § 3 5 3 3 (a ).

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         designate, may authorize such successive redelegations of such
         functions, powers, and duties as he may deem desirable, and may
         make such rules and regulations as may be necessary to carry out his
         functions, powers, and duties.
   We have been advised by your Department that the Assistant Secretaries and
their deputies do not, as the result of the concurrent delegations, hold their
offices jointly; the deputy does not become the coequal of the Assistant
Secretary. The latter retains the responsibility for the subdivision he heads. He
has the power to direct his deputy, and prevails in case o f disagreement. While
both parties may have the same apparent powers with respect to outsiders, there
is no doubt that in the internal relations between the Assistant Secretary and his
deputy the form er is the superior.
   The status o f Assistant Secretary as the officer responsible for his subdivision
is made manifest in a HUD handbook entitled “ Organization o f the Department
of Housing and Urban D evelopm ent.” It places the duties and responsibilities
for the several departmental subdivisions in the Assistant Secretary who heads
it, and not jointly in the Assistant Secretary and his deputy who hold a
concurrent delegation.6 Thus, the purpose o f the concurrent delegations is not
to modify the hierarchical organization o f the Department, but rather is a matter
of form and administrative convenience. It is designed above all to enable the
deputy to sign documents without having to establish, possibly years later, that
the Presidential appointee was absent or disabled at that time, and, second, to
lessen the principal’s workload, without detracting from his authority or
responsibility, by authorizing the deputy to take action even if the principal is
physically available.7
   Senator Eagleton has recently challenged the legality o f a concurrent
delegation to the Federal Insurance Adm inistrator and to his deputy, see 124
Cong. Rec. S 2521 (Daily E d ., February 28, 1978),8 and has introduced a bill,
S. 2602 (95th C ong., 2d sess.), that would in effect prohibit the practice of
concurrent delegations to an officer, whether or not he had been appointed by
and with the advice and consent of the Senate.
   Senator Eagleton’s objection to concurrent delegations is based on the
proposition that the confirmation process would be “ a m ockery” if, after the
Senate’s careful inquiry into the background and qualifications of the person
nominated by the President, the same functions can be exercised by someone




   ‘ H o w ev e r, w e h a v e b e en a d v ise d th at th e s u b se q u e n t c o n c u rre n t d e le g atio n s d id not affe c t the
allo c atio n o f re sp o n sib ility set fo rth in th e h a n d b o o k .
    7It sh o u ld be n o te d th at th e se re su lts c o u ld a lso h av e b een a c h ie v e d by a re d e le g atio n by the
P resid en tial a p p o in te e s p ec ifica lly a u th o riz e d by § 7(d ) o f the A ct; 42 U .S .C . § 3535(d).
    “T h is p a rtic u la r c o n c u rre n t d e le g a tio n w a s re v o k e d o n F e b ru a ry 24 , 1978; 43 F .R . 77 1 9 . T h is
re v o c atio n , h o w e v e r, d o e s n o t re so lv e th e p ro b le m sin ce , a cc o rd in g to a c o m p ila tio n p rep ared by
the A m e ric a n L aw D iv isio n o f th e L ib ra ry o f C o n g re ss , c o n c u rre n t d e le g a tio n s h av e b een g iv en to
the G e n eral C o u n se l; th e A ssista n t S e c re ta ry fo r H o u sin g — F e d e ra l H o u sin g C o m m issio n e r; and
the A ssista n t S e c re ta rie s fo r A d m in is tra tio n , fo r N e ig h b o rh o o d s , V o lu n ta ry A ss o c ia tio n s, and
C o n su m e r P ro te c tio n , an d fo r F a ir H o u sin g an d E q u al O p p o rtu n ity .


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about whom the Senate knows nothing.9 In support of his position Senator
Eagleton submitted a memorandum from the American Law Division of the
Library o f Congress which, relying on Buckley v. Valeo, 424 U.S. 1 (1976),
and Williams v. Phillips, 360 F. Supp. 1363 (D .D .C . 1973), stay denied, 482
F. (2d) 669 (D .C. Cir. 1973), states:
        . . . that, although the matter is not free from doubt, the courts are
        likely to hold that HUD may not administratively create an office
        which would concurrently exercise functions with a statutorily
        created office which must be filed by a presidential nominee with the
        advice and consent of the Senate. [124 Cong. Rec. S. 2523 (Daily,
        Ed., February 28, 1978)]
   In our opinion, the two cases cited by the Library of Congress memorandum
are inapplicable to the system of concurrent delegations prevailing in your
Department. The portion o f the opinion in Buckley v. Valeo pertinent to the
problem at hand (pp. 124-141), holds that “ any appointee exercising signifi­
cant authority pursuant to the laws of the United States is an ‘Officer of the
United States,’ and must, therefore, be appointed in the manner prescribed by
§ 2, cl. 2 o f that Article [i.e., Article II of the Constitution]” (at p. 126). Under
the concurrent delegations here involved a deputy holding a concurrent
delegation unquestionably exercises significant authority pursuant to the laws
of the United States; hence he has to be appointed pursuant to one o f the
procedures established by Article II, § 2, cl. 2.
   The constitutional provision states that officers of the United States must be
appointed by the President by and with the advice and consent of the Senate,
unless in the case o f inferior officers, Congress by law vests the appointment in
the President alone, the courts of law, or the heads o f departments. Congress has
exercised its power here by vesting the appointment o f inferior officers in your
Department in the Secretary. Section 7(c), supra, authorizes the Secretary to
appoint “ such officers and employees . . . as shall be necessary to carry out the
provisions of this Act and to prescribe their authority and duties.” [Emphasis
added.] Deputy Assistant Secretaries unquestionably are inferior officers who
can be appointed by a Department h e a d .10 The Deputy Assistant Secretaries of
HUD, accordingly, have been appointed by the Secretary pursuant to a statute
which authorizes him to do so. The constitutional requirement set forth in
Buckley v. Valeo therefore has been met.
   There is also the implication that a person to whom an authority equal to that
of an Assistant Secretary has been delegated cannot be appointed pursuant to
§ 7(c), because Congress has required that the latter must be appointed by the


    ‘'T h is a rg u m e n t fails to re a liz e , as w ill be sh o w n in fu rth e r d etail b e lo w , that in c o n firm in g a
D ep artm en t h ead an d e v en an A ssista n t S e c re ta ry , the S e n a te d o es not e x p ec t him to m a k e all the
d e cisio n s o f th e o ffic e o v e r w h ich he h a s ju risd ic tio n , but ra th e r th at he is e x p ec te d to be
resp o n sib le fo r its g e n eral g u id a n c e an d su p erv isio n .
     I0ln som e A g e n cie s e v en so m e o ffic e rs h o ld in g th e ran k o f A ssista n t S e c re ta ry are a p p o in te d by
the D ep artm en t h e ad . See, e.g., the A ssista n t A tto rn e y G e n eral fo r A d m in istra tio n (2 8 U .S .C .
§ 507); and th e A ssista n t S e c re ta ry o f A g ric u ltu re fo r A d m in istra tio n . R eo rg an iza tio n P lan N o. 2,
o f 1953, § 3 , 7 U .S .C . § 2201 n o te , an d see 7 U .S .C . § 2213.

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President by and with the advice and consent o f the Senate. In that connection
reliance is placed on Williams v. Phillips, supra. That case involved a vacancy
in the office of the Director o f the Office of Economic Opportunity, an
advice-and-consent position (42 U .S .C . § 2941(a)), which the President had
filled on an acting basis for a considerable period of time with a person who had
not been confirmed. The district court held that where a statute specifically
provides that a position must be filled with a person appointed by the President
by and with the advice and consent of the Senate, the President cannot avoid the
statutory requirement by filling it, even on an acting basis, with a person who
has not been confirm ed by the Senate in the absence of a statutory authoriza­
tio n .1'
   The statutory structure in your Department is quite different from the one
involved in Phillips. The only advice-and-consent position in your Department,
the powers and responsibilities o f which are defined by statute, is that of the
Secretary. The Department o f Housing and Urban Development Act, § 3(a), 42
U .S.C . § 3532(a). The other departmental positions requiring Senate confirma­
tion are set forth in § 4(a), but the Act does not prescribe their functions and
responsibilities; to the contrary, § 4(a) provides that they shall have such
powers and duties as may be prescribed by the Secretary.12 On the other hand,
§ 7(d) provides for a general delegation of authority vested in the Secretary.
The statute thus— with the exceptions noted— does not direct what functions
must be vested in officers who have been confirmed by the Senate; to the
contrary, on its face it permits the Secretary to delegate any of his functions to
any officer in the Department.
   We are not confronted with the situation presented in Phillips, where a
statute provided specifically that a certain position had to be filled by an officer
confirmed by the Senate. Here the Act, with a few exceptions, gives the
Secretary discretion as to the functions he wishes to vest in an Assistant
Secretary, and those functions he wishes to retain or delegate to an officer not
subject to Senate confirm ation.
   We are, however, willing to believe arguendo that where a statute requires
the confirmation o f an officer, it implicitly provides that a provision such as
§ 7(d), which authorizes the Secretary to delegate any o f his functions to any
officer he may designate, cannot be used to give an unconfirmed officer the
same organizational position as an officer who must be confirmed. The
requirement o f confirm ation connotes that the officer shall be the head of the
departmental subdivision placed in his charge, that he shall be responsible for


    " T h e o p in io n o f th e C o u rt o f A p p e a ls w h ile d e n y in g a stay o f the lo w e r c o u rt's d e cisio n
su g g este d th at the P resid e n t h as th e p o w e r to a p p o in t an o fficial w h o had not b een c o n firm ed by the
S en ate o n an actin g b a sis fo r a lim ited p e rio d o f tim e.
    l2T h e o n ly e x c e p tio n is th e A ssista n t S e c re ta ry d e sig n a te d to be the F ederal H ou sin g
C o m m is sio n e r. H e “ sh all a d m in is te r, u n d e r th e su p e rv isio n and d ire c tio n o f the S e c re ta ry ,
d e p artm e n tal p ro g ram s re la tin g to th e p riv a te m o rtg ag e m a rk e t.” B ut e v en th is p ro v isio n d o e s not
p re c lu d e th e d e le g a tio n o f o th e r fu n c tio n s to h im . A g a in it c o u ld be im p lie d from 42 U .S .C .
§ 3 5 3 3 a , w h ic h e sta b lis h e s th e O ffice o f th e F e d e ra l In su ra n c e A d m in istra to r, that C o n g re ss
e x p ec te d th at th e S e c re ta ry w o u ld d e le g a te to him th e re sp o n sib ility fo r the in su ran ce p ro g ram s
ad m in iste re d by H U D .

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it, and that he alone shall have the overall power and authority, under the
supervision of the Secretary, to direct and control the manner in which all other
officers assigned to his subdivision perform their duties. On the other hand, he
is not and cannot be expected to perform or even to supervise personally all the
activities assigned to his subdivision as long as he retains the overall
direction.13
   A concurrent delegation that would remove a Deputy Assistant Secretary
from the general supervision and control of the Assistant Secretary and give
him equal powers of performance and equal control over a departmental
subdivision might well be inconsistent with the confirmation requirement for
the position of Assistant Secretary. However, as we have been advised by your
Department, the concurrent delegations are not designed to impair the Assistant
Secretary’s responsibility for and control over the subdivision that is in his
charge. The concurrent delegations generally refer to the Assistant Secretary’s
“ power and authority,” i.e., the day-to-day execution o f the statutes in his
charge, whose performance must by necessity be delegated and perhaps
subdelegated. The delegations do not, however, erode the Assistant Secretary’s
legal accountability. That responsibility is not included in the concurrent
delegation to the deputy and remains vested in the Assistant Secretary.14 A
comparison o f the Handbook with the concurrent delegations reproduced at 124
Cong. Rec. S. 2523-2525 (Daily E d., February 28, 1978) demonstrates the
difference between the powers and authorities covered by the delegations and
the hierarchical responsibilities that are not affected.
   We conclude that because the Assistant Secretaries retain both responsibility
for and control over the action of the Deputy Assistant Secretaries, the
concurrent delegations do not conflict with the confirmation process and,
therefore, constitute a valid exercise of the Secretary’s authority.

                                                                         Joh n M . H arm o n
                                                                   Assistant Attorney General
                                                                              Office o f Legal Counsel




    l3In Barr v. Matteo, 3 6 0 U .S . 5 6 4 , 5 7 3 (1 9 5 9 ), the C o u rt stated th at “ the c o m p le x itie s and
m a g nitude o f g o v e rn m e n ta l a c tiv ity h av e b e c o m e so g re a t th at th e re m u st o f n e ce ssity b e a
de le g atio n an d re d e le g atio n as to m an y fu n c tio n s. . . . ” See also. Cooper v. O'Connor, 9 9 F . (2d)
135, 142 (D C . C ir. 19 3 8 ), c e rt, d e n ie d , 3 0 5 U .S . 6 4 3 (1 9 3 8 ).
    l4See in th is c o n te x t th e v a rio u s d e le g a tio n s in 24 C F R P art 3 w h e re it is sp elled o u t th a t the
several co n cu rre n t d e le g a tio n s to d e p u tie s c o n ta in ed in th a t P art are su b je c t to the general
supervision o f th e p rin c ip a l. In o rd e r to av o id fu tu re m isu n d e rsta n d in g s, it m a y be d e sirab le to
include sim ila r c la u se s in all c o n c u rre n t d e le g atio n s.


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