                                                           August 12, 1977


77=46     MEMORANDUM OPINION FOR THE
          DIRECTOR OF THE OFFICE OF
          MANAGEMENT AND BUDGET

          Legal Questions Raised by the Library of Congress
          Critique of Reorganization Plan No. 1 of 1977


   This is in response to the request of your Office for my opinion on
the legal questions raised by the Library of Congress Critique of Reor­
ganization Plan No. 1 of 1977. The critique raises many questions of
policy and discusses a number of general legal issues, but it specifically
challenges the legality of only a few aspects o f the plan. Our response
is limited to those specific legal challenges. F o r the reasons that follow,
we do not believe that the critique’s conclusions respecting these as­
pects o f the plan are warranted.

                          Domestic Council Staff
   Section 1 o f the plan provides that “the Domestic Council staff, is
hereby designated the Domestic Policy S taff’; it further provides that
“the staff shall continue to be headed by an Executive Director who
shall be an Assistant to the President, designated by the President, as
provided in Section 203 o f Reorganization Plan No. 2 of 1970.” The
critique asserts that this provision violates Section 904 of the Reorgani­
zation A ct of 1977, 5 U.S.C. §904, by failing to provide for Senate
confirmation of the Executive D irector of the Domestic Policy Staff.
Section 904 reads in pertinent part:
    A reorganization plan transmitted by the President containing pro­
    visions authorized by paragraph (2) of this section may provide
    that the head of an agency be an individual or a commission or
    board with more than one member. In the case of an appointment
    of the head o f such an agency, the term of office may not be fixed
    at more than four years, the pay may not be at a rate in excess of
    that found by the President to be applicable to comparable officers
    in the executive branch, and if the appointment is not to a position
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      in the competitive service, it shall be by the President, by and with
      the advice and consent of the Senate.
   As is readily apparent from this provision, the requirement respecting
Senate confirmation is not made applicable to every official who has
some vague connection with a reorganization plan; rather, it applies
only “in the case of an appointment of the head of such an agency.”
The term “the head of such an agency” can only refer to those officials
described in the previous sentence. The sentence allows the head of an
agency to be an individual or a multimember board; what is more
important for our purposes, however, is that it clearly contemplates an
appointment of such officers pursuant to paragraph (2) of § 904. The
term “the head of such an agency,” then, refers to heads of agencies
appointed in accordance with the provisions o f that paragraph.1
   We do not believe that the Executive Director of the Domestic
Policy Staff is such an official. Paragraph (2) applies only to officials
for whom arrangements regarding appointment and pay must be made
“by reason of a reorganization” [emphasis added], and we doubt that the
action taken by the plan with respect to the Domestic Council fits
within § 904’s definition of “reorganization.” Section 904 defines that
term to “mean a transfer, consolidation, coordination, authorization, or
abolition, referred to in Section 903 of this title.” 5 U.S.C. § 902(2).
These terms defining “reorganization” and their elaboration in section
903 contemplate a change in the functions of an agency; but no such
changes are effectuated here. The functions of the staff will remain the
same as before; under both plan No. 1 of 1977 and plan No. 2 of 1970,
the staff is (by reason of the duties imposed on the Executive Director)
to “perform such functions as the President may from time to time
direct.” We thus believe that the requirement of Senate confirmation is
inapplicable here.
  The purposes underlying the requirement of Senate confirmation
would also seem to support this result. It would make little sense to
require Senate confirmation of an official not previously subject to this
requirement merely because he or she is in some way involved in a
reorganization—particularly where, as here, his or her functions remain
exactly the same. Rather, the requirement appears designed to protect
congressional prerogatives in situations where new offices are created.
This intent seems apparent in Congress’ linking the requirement of
Senate confirmation to situations where provisions for appointment and
pay of officials are necessary—and such provisions would be necessary
only where new offices are being created. The legislative history of the
predecessor of § 904 bears this out; it reveals that Congress wanted to

   ' This interpretation is further supported by the fact that the provision requiring Senate
confirm ation w as originally included within a provision w hich is the precursor o f para­
graph (2). See R eorganization A ct o f 1945, ch. 582, § 4(2) 59 Stat. 614. T h e statute was
later am ended to reflect its present form, A ct o f D ec. 10, 1971, Pub. L. No. 92-179, §3,
85 Stat. 575, but the legislative history clearly indicates that no substantive changes w ere
intended. See S. Rep. N o. 485, 92nd Cong., 1st sess. 4-5 (1971).

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impose restrictions on the President’s power to reorganize “with re­
spect to the creation of new positions. ” S. Rep. No. 638, 79th Cong., 1st
Sess. 6 (1945). [Emphasis added.] The plan can hardly be said to have
created a new position here. It expressly states that the staff “shall
continue to be headed by an Executive D irector” [emphasis added], and
it confers no new functions on the Executive Director or the staff by
which he could be regarded as having a new position.
   Finally, another aspect o f the plan supports our conclusion. Because
all it purports to do is to change the name of the staff of the Domestic
Council, the plan would appear to fall within the provisions of para­
graph (1) of § 904. This paragraph allows the President to
      change . . . the name of an agency affected by a reorganization
      and the title of its head. . . .
Because Congress structured § 904 to require Senate confirmation only
with respect to officials provided for under paragraph (2), we believe it
would be contrary to Congress’ intent to extend this requirement to
situations where only action under paragraph (1) has been taken.
   The critique further argues that the Executive Director of the D o­
mestic Council should have been required to be confirmed by the
Senate under Reorganization Plan No. 2 of 1970. If this be so, the fact
that under plan No. 1 of 1977 the Executive Director would continue
in his previous position, seems to require an adjustment to provide for
Senate confirmation. However, the A ttorney General had ruled that the
arrangement in the plan No. 2 of 1970 did not violate provisions similar
to those at issue here. The Attorney General relied on the fact that
then—as now —the Executive Director was to be an Asistant to the
President appointed under other statutory provisions, and commented
that “carried to its logical conclusion, this argument would require the
‘reappointment’ in accord with 5 U.S.C. § 904(2) of any properly ap­
pointed officer given an additional title and duties by a reorganization
plan.” 2 While there were those in Congress who took a contrary view,
see, e.g„ H.R. Rep. No. 1066, 91st Cong., 2d Sess. 3-6, 56-57 (1970), the
fact remains that Congress did not disapprove the 1970 reorganization.
We think this fact strongly implies that Congress regarded Reorganiza­
tion Plan No. 2 of 1970 as complying with existing law and congres­
sional intent, because it was done with full knowledge of the objections
to its approval. We do not believe that Reorganization Plan No. 2 of
1970 was in violation of law, and, accordingly, there is no need to
provide for Senate confirmation in plan No. 1 of 1977.
   W e conclude that there is no requirement under § 904 of the Reorga­
nization A ct of 1977 that the position of Executive Director of the
Domestic Policy Staff be made subject to Senate confirmation.

  1 L etter from the A ttorney G eneral to the Chairm an o f the Subcom m ittee on G overn­
m ent O perations, H ouse o f Representatives, dated M ay 6, 1970.

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                     Assistant Secretary of Commerce
  The critique argues that the wording and intent of Section 4 of the
plan, regarding the appointment of an Assistant Secretary of Com­
merce, is ambiguous. We disagree.
  That section now reads:
       There shall be in the Department of Commerce an Assistant
     Secretary for Communications and Information who shall be ap­
     pointed by the President, by and with the advice and consent of
     the Senate, and who shall be entitled to receive compensation at
     the rate now or hereafter prescribed by law for Level IV of the
     Executive Schedule.
While the language “there shall be . . . an Assistant Secretary” could
conceivably suggest that a present Assistant Secretary is to be delegat­
ed new functions, we doubt that this language would be used if there
were such intent. Moreover, any doubt on the matter is resolved by the
President’s statement that certain functions were being “transferred to a
new office within the Department of Commerce, headed by a new
Assistant Secretary for Communications and Information” [emphasis
added]; the message also stated that the plan would “create” an Assist­
ant Secretary—which implies that there is to be an Assistant Secretary
where none had previously existed.
            Compliance with House of Representatives Rules
   Clause 2 o f Rule XXI of the House of Representatives provides that
no appropriations may be reported by the House Appropriations Com­
mittee in any general appropriations bill for expenditures not previously
authorized by law. The critique notes that, if the Domestic Policy Staff
is subsumed in the White House Office, a violation of this clause will
result. The reason given is that several budget accounts in the Execu­
tive Office of the President—including the White House Office—are
already in violation of this clause in whole or in part.
   We do not believe it appropriate for us to respond to this aspect of
the critique. If there is a violation, it is a violation of an internal rules of
procedure that the House of Representatives has the responsibility to
interpret and apply.
                                              J o h n M. H a r m o n
                                            Assistant Attorney General
                                                    Office o f Legal Counsel




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