                  Appointments to the Commission on the
                     Bicentennial of the Constitution

Presidential appointm ent o f the C hief Justice o f the United States to the Commission on the
   Bicentennial o f the Constitution is consistent with the Appointments Clause, art. II, § 2, cl. 2,
   and, as applied to the unique circum stances of this Com mission, with general separation of
   pow ers principles.

In addition, participation o f the Chief Justice on the Com mission would appear to be permissible
   under the Code o f Judicial Conduct.

M em bers o f C ongress may participate on the Com m ission without violating the Appointments
   Clause or the Incompatibility C lause, art. I, § 6, cl. 2, if the Commission creates an executive
   com m ittee to discharge the purely executive functions of the Commission, or if the non-
   congressional m em bers determine that the Com mission will not act unless a full majority,
   including the congressional members, approve.

                                                                                   August 31, 1984

         M e m o r a n d u m O p i n i o 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


   Some time ago we discussed whether there was some practical means for
resolving the legal disputes that have arisen concerning the Commission on the
Bicentennial of the Constitution. You suggested that we consider the matter
and put any thoughts we might have in a memorandum to you. This follows
through on that discussion.

                                         I. Introduction

   On September 29, 1983, the President signed S. 118, a bill that established
the Commission on the Bicentennial of the Constitution (Commission). The
statute authorized the Commission to plan and coordinate activities to celebrate
the bicentennial of the Constitution and specifically included within the
Commission’s powers, in addition to the generally advisory functions, certain
clearly executive functions, such as carrying out a limited number of com­
memorative events and projects and the adoption of binding regulations gov­
erning use of the Commission’s logo. The statute vests the appointment of most
of the members of the Commission in the President, but it also specifically
designates as members, the Chief Justice of the Supreme Court, the President
pro tempore of the Senate, and the Speaker of the House of Representatives.
Because the members of the Commission are authorized to perform executive
duties that may be performed only by Officers of the United States, this Office
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concluded that the statutory designations were improper under the Incompat­
ibility and Appointments Clauses of the Constitution. This position is one that
has been taken by President Reagan and many of his predecessors on innumer­
able occasions under similar circumstances. Moreover, in an analogous con­
text, the Senate Judiciary Committee recently expressed its appreciation for,
and agreement with, our Appointments Clause objections to legislation that
purports to vest in Congress the power to designate persons to serve on a
commission that is given Executive functions:
       The Appointments Clause requires that individuals with execu­
       tive responsibilities must be appointed by the President with the
       advice and consent of the Senate, or if authorized by Congress,
       by the President alone, the courts or the heads of departments.
       Buckley v. Valeo , 424 U.S. 1, 124—41 (1976). Inasmuch as the
       Committee intended the Commission to initiate and conduct
       commemorative activities, and to avoid any constitutional ques­
       tions, the Committee has amended S. 500 to give the President
       full authority over all appointments. This will ensure that the
       Commissioners will be appointed in accordance with the Con­
       stitution and remove any doubt about the Commission’s ability
       to plan, sponsor, and conduct such activities as it deems appropriate.
S. Rep. No. 194, 98th Cong., 1st Sess. 2 (1983) (referring to the Commission
charged with planning, encouraging, coordinating, and conducting the Christo­
pher Columbus Quincentenary Jubilee).
   In a statement he issued at the time he signed S. 118, the President articulated
the constitutional conclusions that had been raised by this Office:

       I welcome the participation of the Chief Justice, the President
       Pro Tempore of the Senate, and the Speaker of the House of
       Representatives in the activities of the Commission. However,
       because of the constitutional impediments contained in the Doc­
       trine of the Separation of Powers, I understand that they will be
       able to participate only in ceremonial or advisory functions of
       the Commission, and not in matters involving the administration
       of the Act. Also, in view of the Incompatibility Clause of the
       Constitution, any Member of Congress appointed by me pursu­
       ant to Section 4(a)(1) of this Act may serve only in a ceremonial
       or advisory capacity.
          I also understand that this Act does not purport to restrict my
       ultimate responsibility as President for the selection and ap­
       pointment of Members of the Commission, under Article 2,
       Section 2, Clause 2, of the Constitution.
Senator Hatch apparently disagreed with the legal conclusions contained in the
President’s signing statement and asked the Congressional Research Service
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(CRS) to review the President’s objections to the structure of the Commission.
The CRS memorandum supported, to a certain extent, the viewpoint of Senator
Hatch. Senator Hatch forwarded that memorandum both to Edwin Meese, III,
Counselor to the President, and to the Attorney General. This Office prepared a
response to the CRS memorandum (which we have previously sent to you) in
which we reviewed the issues raised by the CRS and concluded that our
original opinion with respect to the Commission was correct and that the CRS
memorandum was in error.
   The establishment of the Commission has remained a controversial issue,
and the President has not yet appointed the members of the Commission. A
conflict continues to persist between what we believe to be the clear require­
ments of the Constitution and the understandable desires of certain members of
the Legislative and Judicial Branches to participate in the commemoration of
the document that created all three branches of government.
   This memorandum suggests some potential practical means for resolving the
conflict. First, the memorandum considers the legality of the President appoint­
ing the Chief Justice as a member of the Commission. If such an appointment
were permissible, the Appointments Clause problems arising from Congress’
attempt to make the appointment might be avoided, and the Chief Justice might',
then be eligible to participate in all aspects of the Commission’s activities,
including those of an executive nature. Second, we make some suggestions
concerning how the Commission might be structured in order to avoid the
Incompatibility and Appointments Clause problems with respect to potential
congressional members of the Commission.

    II. Presidential Appointment of the Cihiieff Justice to tlhe Cbmmissioini

A. Constitutional Considerations

    1. The Appointments Clause

   It seems apparent that there would be no Appointments Clause problems if
the President himself appointed the Chief Justice as one of the regular members
of the Commission. Even if, as we have concluded, members of the Commis­
sion are Officers of the United States who must be appointed pursuant to the
Appointments Clause, a direct Presidential appointment would satisfy the
requirements of that Clause. The Appointments Clause contains no direct
prohibitions against the appointment of any particular individuals to serve as
Officers of the United States; it simply requires a certain procedure for appoint­
ing such Officers. See U.S. Const, art. II, § 2, cl. 2. Presidential appointment of
the Chief Justice would satisfy this procedure.1
   1 T he Incom patibility C lause would p resen t no problem w ith respect to Presidential appointm ent o f the
C h ie f Justice. By its express terms, the Incom patibility Clause applies only to M embers o f C ongress. See U.S.
C onst, art. I, § 6, cl. 2. T hus, under the p rin cip le that expressio unius est exctusio alterius , the absence o f any
reference to the ju d iciary in the Incom patibility C lause suggests that there is no absolute constitutional bar to
the appointm ent o f ju d g es to positions th a t may be filled only by O fficers o f the U nited States.

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  2. The Separation of Powers

   Although the Appointments Clause would not bar appointment of the Chief
Justice in this instance, the more general principles of the separation of powers
may have more relevance to this issue. In this context, the basic separation of
powers issue is whether appointment of the Chief Justice to an Executive
Branch position would disrupt the separation of functions that the Framers
intended to build into the structure of the federal government. The separation of
powers doctrine generally requires a careful balancing of the potential impact
of a given action on the constitutional powers of each branch. See, e.g., Nixon
v. Administrator o f General Services, 433 U.S. 425 (1977).
   With respect to the issue of performance of executive functions by a judge,
the Supreme Court has made it clear that Congress may not require a court to
perform nonjudicial functions. In H aybum ’s Case, 2 U.S. (2 Dali.) 409 (1792),
the Supreme Court appended to its decision an opinion of Chief Justice Jay,
Justice Cushing, and a district judge sitting as a circuit court, in which they
made the following Findings in ruling that Congress could not assign nonjudicial
duties to courts:

         That by the Constitution of the United States, the government
       thereof is divided into three distinct and independent branches,
       and that it is the duty of each to abstain from, and to oppose,
       encroachments on either.

         That neither the Legislative nor the Executive branches, can
       constitutionally assign to the Judicial any duties, but such as are
       properly judicial, and to be performed in a judicial manner.
2 U.S. (2 Dali.) at 410 n.*. This decision has subsequently been recognized by
the Supreme Court as establishing the principle that courts could not be
required to perform nonjudicial functions that would then be subject to review
and revision by the Executive or Legislative Branches. See Muskrat v. United
States, 219 U.S. 346, 352 (1911); United States v. Ferreira, 54 U.S. 40,50-51
(1851).
   This principle is not implicated in this matter, however, because the Chief
Justice would not be required to perform nonjudicial functions, but rather
would voluntarily accept an appointment to a nonjudicial office. Moreover, the
Chief Justice would not be performing executive functions in his role as a
judge, but rather would be holding two separate appointments, one of which
was judicial, the other, executive. Thus, the issue is whether the Chief Justice
may voluntarily accept this additional appointment.
   Although, as far as we know, no court has ever ruled on this question, the
Attorney General has on several occasions issued opinions upholding the right
of the President to appoint members of the judicial branch to other government
positions. See 40 Op. Att’y Gen. 423 (1945); 22 Op. Att’y Gen. 184 (1898). In
the former instance, Attorney General Clark concluded that a judge of the
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United States Court of Appeals could continue in that position while serving at
the request of the President, and without compensation, as an alternate judicial
member of the International Military Tribunal established for the trial of
persons charged with war crimes. Attorney General Clark concluded:
       There is no express prohibition against Federal judges perform­
       ing other services of a general character for the Federal Govern­
       ment. On the contrary, it is a well established practice for the
       President to secure the services of Federal judges in connection
       with various matters. The practice arose along ago. Chief Justice
       Jay served as special envoy to England at the request of the
       President. . . and Chief Justice Fuller twice acted as an arbitra­
       tor of international disputes . . . .
40 Op. Att’y Gen. at 424. Although none of the examples cited and approved
by the Attorney General involved the performance by judges of executive
duties that may be performed only by an Officer of the United States, there are
examples of such appointments, particularly during World War II when, for
example, Judge John C. Collet served as Director of Economic Stabilization.
See 32 A.B.A. J. 682 (1946). In addition, judges have frequently undertaken
diplomatic missions, and during this Administration, Chief Judge Irving R. Kaufman
of the United States Court of Appeals for the Second Circuit was appointed to serve
as Chairman of the President’s Commission on Organized Crime.
   Such actions have not, however, gone uncriticized. In 1947, the Senate
Judiciary Committee issued a report that questioned the propriety of appointing
members of the judiciary to nonjudicial posts. S. Exec. Rep. No. 7, 80th Cong.,
1st Sess. (1947) (reprinted in 33 A.B.A. J. 792 (1947)). The Committee raised
the following general objection:
       If it becomes common to expect Executive appointments, judges
       may slip into that frame of mind which seeks promotional
       opportunity at the hand of the Executive and the quality of the
       judicial character may be impaired. This could take on an ugly
       political tinge if judges came to see in the Executive appoint­
       ment a chance to advance themselves politically or a chance to
       aid the Chief Executive politically.
33 A.B.A. J. at 793. The Committee went on to list a series of specific problems
that might result from appointment of judges to executive positions:
           1. Reward may be conferred or expected in the form of
        elevation to a higher judicial post.
          2. The judicial and Executive functions may be improperly merged.
           3. The absence of the judge from his regular duties increases
        the workload of the other judges of the Court, if any, and may
        result in an impairment of judicial efficiency in the disposition
        of cases.
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         4. Nonjudicial activities may produce dissension or criticism
       and may be destructive of the prestige and respect of the federal
       judiciary.
         5. A judge, upon resumption of his regular duties, may be
       called upon to justify or defend his activity under an Executive
       commission.
Id. at 795. We believe that these are appropriate factors to be evaluated in
assessing the impact of an appointment on the constitutionally prescribed
separation of powers.
   In this particular case, consideration of these factors supports the conclusion
that appointment of the Chief Justice (or other members of the judiciary) to the
Commission on the Bicentennial of the Constitution would not be inconsistent
with separation of powers principles. First, given the position of the Chief
Justice and the nature of this particular Commission, the appointment would
not generally be regarded as a reward or, conversely, further reward would not
be expected as a result of service on the Commission. Second, because the
executive functions of the Commission are relatively insubstantial, there seems
little danger of improperly merging the judicial and executive functions. Third,
the work of the Commission is unlikely to draw the Chief Justice’s attention
away from the duties of his work on the Court to any material extent. Fourth,
the relatively noncontroversial responsibilities of the Commission are unlikely
to create dissension or criticism that would affect the prestige of the Court or
the federal judiciary. Fifth, the Commission’s activities are unlikely to result in
actions that would later be subject to review by the Court. Finally, a Commis­
sion to plan the celebration of the two- hundredth anniversary of the Constitu­
tion is an entity that seems peculiarly suited to some participation by represen­
tatives of all three branches of government and is less likely than other types of
entities to be considered a broad precedent.
   An analysis of these factors therefore suggests that the appointment would
not be inconsistent with the Constitution. Nevertheless, the general concerns
that underlie the constitutional issue are significant enough to raise serious
policy questions concerning the appropriateness of judicial appointments to
executive positions in other circumstances. The considerations suggested by
the Senate report are legitimate; the appointment of judges to Executive Branch
positions is generally not a prudent policy. Thus, even though this particular
appointment may be entirely appropriate, there is some risk that this appoint­
ment would be cited in some quarters as a precedent for future appointments
with respect to which the problems may be greater.

B. Statutory Questions

  The only statutory issue that might be raised by the appointment of a judge to
an additional position in the federal government would involve the Dual
Compensation Act, 5 U.S.C. § 5533, which prohibits a person from receiving
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compensation for more than one position with the federal government. In this
case, however, because membership on the Commission involves no remunera­
tion, no problem exists under this particular statute.

C. The Code o f Judicial Conduct

   Canon 5(G) of the Code o f Judicial Conduct for United States Judges is also
relevant to the issue discussed in this memorandum. The Canon states:
       Extra-judicial Appointments. A judge should not accept ap­
       pointment to a governmental committee, commission, or other
       position that is concerned with issues of fact or policy on mat­
       ters other than the improvement of the law, the legal system, or
       the administration of justice, unless appointment of a judge is
       required by Act of Congress. A judge should not, in any event,
       accept such an appointment if his governmental duties would
       interfere with the performance of his judicial duties or tend to
       undermine the public confidence in the integrity, impartiality, or
       independence of the judiciary. A judge may represent his coun­
       try, state, or locality on ceremonial occasions or in connection
       with historical, educational, and cultural activities.
The Code was adopted by the Judicial Conference of the United States in 1973.
It is interpreted for the judiciary by the Advisory Committee on Judicial
Activities. As we have stated before, in view of the existence of this Commit­
tee, and in view of the autonomy of the judiciary in matters concerning the
propriety of judicial conduct, this Office cannot issue authoritative pronounce­
ments concerning the applicability of the Code in the circumstances presented
by this case. Nevertheless, we can offer our views with respect to what we
perceive to be the apparent meaning of this provision.
   We believe that participation of the Chief Justice on the Commission of the
Bicentennial of the Constitution would not be inconsistent with Canon 5(G).
First, it seems clear that the Commission’s activities, because they involve
celebration of, and education regarding, our fundamental legal charter, relate to
a certain extent to “the legal system” and the “administration of justice.”
Moreover, participation on the Commission also seems to involve representa­
tion of the country “in connection with historical, educational, and cultural
activities.” In addition, participation on the Commission is unlikely to impose
significant time demands on the Chief Justice or to involve the Court in an
“extra-judicial matter that may prove to be controversial,” which are the
principal concerns underlying the Canon. See Commentary to Canon 5(G).
Finally, full participation in the executive functions of the Commission would
pose no greater problems with respect to Canon 5(G) than would participation
as an advisory member, which the President interpreted the statute to mandate.
Therefore, we believe that the President’s appointment of the Chief Justice to
the Commission would not pose a problem under Canon 5(G).
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D. Conclusion

   In sum, we believe that there are no legal obstacles to Presidential appoint­
ment of the Chief Justice to the Commission. Such an appointment would be
permissible under the Constitution, current statutory law, and, at least as we
read it, the Code of Judicial Conduct.

         III. Practical Solutions to the Incompatibility Clause Problem

   We have also explored the possibility of various structural arrangements
within the Commission that might be designed to respect the Incompatibility
Clause requirements of the Constitution,2 but at the same time enable congres­
sional members of the Commission to play a significant role in the Commission’s
work. We have two general suggestions, both of which involve significant and
meaningful participation by congressional members, but in a technical advi­
sory capacity.

A. Establishment o f an Executive Committee to Handle Executive Duties

   The Commission might wish to create an executive committee composed of
all non-advisory members of the Commission that would be legally responsible
for discharging the purely executive functions of the Commission. These
functions would include official approval of any binding regulations, signing
legal instruments, and the technical responsibility for implementation of the
commemorative events that the Commission is authorized to undertake itself.
The full Commission would conduct meetings and do all the other things
contemplated for the Commission, and the executive committee could finally
approve all executive actions. This approach would separate the purely execu­
tive functions from the advisory functions that the Commission will perform
and would allow all members of the Commission to participate in nearly all of
the Commission’s activities, including the formulation of programs that would
be technically approved and executed by non-congressional members.

B. Establishment o f a Special Advisory Committee to the Commission

  The Commission, without the congressional members voting, could decide
that it would not act unless a full majority of the Commission, including the
congressional members, approved. Technically the non-congressional mem­
bers, i.e., those who were “officers” of the United States, could also reverse a
Commission decision reached in this way, but we suspect such a contingency
would be extremely unlikely.

  2 A sim ilar problem is raised by the Ineligibility Clause, which provides in part that no “Senator or
R epresentative shall, during the Tim e for which he w as elected, be appointed to any civil O ffice under the
A uthority o f the U nited States, which shall have been created, o r the Em oluments w hereof shall have been
increased during such tim e." U.S. Const, art. I, § 6, cl. 2.

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   Both of these concepts are quite general and the details would have to be
more fully developed. There may be problems that we have not anticipated, but
we think that both of the above proposals could be implemented in such a way
so as to resolve the technical legal problems with respect to establishment of
the Commission. In fact, some combination of the alternatives could be consid­
ered which would accommodate the interests, enthusiasm, expertise, and sup­
port from the congressional members without contravening the Incompatibility
Clause.

                                              T h eo d o re B. O lso n
                                           Assistant Attorney General
                                            Office o f Legal Counsel




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