  Reassignment of Assistant Secretary of Labor Without Senate
                        Reconfirmation

W here the Secretary o f Labor exercises statutory power to reassign the duties of a lawfully confirmed
   Assistant Secretary o f Labor whose duties are not otherwise assigned by statute, reconfirmation
   o f the Assistant Secretary is not legally required.

                                                                                               November 2, 1995

                M e m o r a n d u m O p in io n   for t h e   C o un sel   to th e   P r e s id e n t


   Over the past few days, this Office has considered whether Senate reconfirma-
tion of Anne H. Lewis as an Assistant Secretary of Labor is legally required.
The answer to this question is clear: the Senate, having already confirmed Ms.
Lewis as an Assistant Secretary of Labor, need not do so again.

         Under 29 U.S.C. §553,

         [t]here are established in the Department of Labor nine offices of
         Assistant Secretary of Labor, which shall be filled by appointment
         by the President, by and with the advice and consent of the Senate.
         Each of the Assistant Secretaries of Labor shall perform such duties
         as may be prescribed by the Secretary of Labor or required by law.

Congress has provided that “ [o]ne of such Assistant Secretaries shall be an Assist­
ant Secretary of Labor for Occupational Safety and Health,” id.', another, the
“ Assistant Secretary of Labor for Mine Safety and Health,” id. §557a; and a
third, the “ Assistant Secretary of Labor for Veterans’ Employment and Training,”
id. §553 note. The allocation of duties to the other Assistant Secretaries is not
set by statute.
   On July 29, 1993, in accordance with the statute, the President nominated Anne
H. Lewis to be “ an Assistant Secretary of Labor.” 139 Cong. Rec. 17,906 (1993).
Although some of the references in the Congressional Record to the committee
hearings on the nomination characterize the position for which she was nominated
as “ Assistant Secretary [of Labor] for Public Affairs,” see id. at D563, the Senate
(in accordance with the statute) confirmed her on October 7, 1993, simply as
an “ Assistant Secretary of Labor.” Id. at 23,995.
   Secretary Reich then exercised his statutory power to assign duties to Ms.
Lewis. He first allocated duties to her as Assistant Secretary for Public Affairs.
Later, he reassigned her to carry out duties as Assistant Secretary for Policy. When
he made this reassignment, Ms. Lewis’s name was not sent to the Senate for
reconfirmation.

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           Reassignment o f Assistant Secretary o f Labor Without Senate Reconfirmation


  The Secretary acted on the advice of our Office which relied upon a 1976
opinion written by then Assistant Attorney General Antonin Scalia. Memorandum
for the Honorable Bobbie Greene Kilberg, Associate Counsel to the President,
from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re:
Reassignment o f Department Heads Without Reconfirmation by the Senate (Apr.
2, 1976). Assistant Attorney General Scalia concluded that although the statute
required Senate confirmation before the President could appoint an Assistant Sec­
retary of Labor, it did not require the Senate to approve the assignment or
reassignment of duties to Assistant Secretaries, once confirmed. Indeed, the statute
did not mandate that the Secretary assign any continuing duties at all to any of
the “ generic” Assistant Secretaries. Each could have served as a general aide
to the Secretary.
  The Chair of the Committee on Labor and Human Resources, however, has
objected to Secretary Reich’s actions and believes that the President is required
to submit Ms. Lewis for reconfirmation. On October 10, 1995, the Congressional
Research Service issued a legal opinion arguing that the Scalia memorandum is
wrong and that the duties of Assistant Secretaries of Labor may not be reassigned
without a renewed confirmation by the Senate. Memorandum for the Honorable
Nancy L. Kassebaum, Chair, Senate Labor and Human Resources Committee,
from Morton Rosenberg, Specialist in American Public Law, Congressional
Research Service, Re: Requirement o f Reconfirmation by the Senate When the
Executive Seeks to Shift an Officer from One Advice and Consent Position to
Another (Oct. 10, 1995) (“ CRS Opinion” ).
   In my view, Assistant Attorney General Scalia’s opinion was correct and has
been powerfully reinforced by a later decision of the Supreme Court. The relevant
statutes, on their face, divide Assistant Secretaries into two classes: those whose
duties are assigned by statute and those whose duties are allocated to them by
the Secretary. When Congress has desired to attach specific duties to an office
of Assistant Secretary, it has done so. Congress has not specified any duties for
the Assistant Secretary position to which the President appointed Ms. Lewis. The
CRS Opinion, which contests Assistant Attorney General Scalia’s view, purport­
edly rests on “ Congress’ prerogative over the administrative bureaucracy.” CRS
Opinion at 3. According to CRS, Congress may provide for execution of the laws
by officers of the United States, and “ under the Necessary and Proper Clause,
it has authority to create offices, determine their location in the governmental
structure, the qualifications of officeholders, prescribe their appointments, and gen­
erally promulgate the standards for the conduct of the offices.” Id. at 4 (citations
omitted). The CRS Opinion, however, ignores the implications of this (valid)
premise. It is Congress, not the Senate, that may define offices under the Nec­
essary and Proper Clause. The position of Assistant Secretary is statutory and
is not a constitutional office. As the Supreme Court held in INS v. Chadha, 462
U.S. 919, 951 (1983), “ the legislative power of the Federal Government [must]

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                    Opinions o f the Office o f Legal Counsel in Volume 19


be exercised in accord with a single, finely wrought and exhaustively considered,
procedure.” This procedure entails passage by both houses of Congress and
presentment to the President. Id. To place specific limitations on the duties per­
formed by Assistant Secretaries of Labor, therefore, Congress would have to
amend the current statute, using the constitutionally required procedure. Even if
the President had nominated Ms. Lewis to be “ Assistant Secretary for Public
Affairs” (as he did not), or even if the Senate had voted to confirm Ms. Lewis
as “ Assistant Secretary for Public Affairs” (as it did not), Chadha would refute
the argument that the Secretary may not reassign Ms. Lewis to new duties without
reconfirmation.
   In standing upon the principle that the Senate may not aggrandize itself by effec­
tively redefining offices established by statute, we would be well supported by
practice. Congress has provided, for example, that there are to be ten Senate-
confirmed Assistant Attorneys General, “ who shall assist the Attorney General
in the performance of Pier] duties.” 28 U.S.C. §506. We have identified ten
instances, the earliest in 1936 and the latest in 1988, in which the Attorney Gen­
eral reassigned an Assistant Attorney General from one division to another without
reconfirmation. In our Department’s history, there is, as far as we know, no con­
trary case. To be sure, the first head of the Civil Rights Division, W. Wilson
White, was nominated for Senate confirmation in 1958, even though he had been
serving as an Assistant Attorney General in charge of the Office of Legal Counsel.
However, Mr. White first resigned his position as Assistant Attorney General,
received a recess appointment, and then went through the process for confirmation.
Thus, when the Senate confirmed Mr. White the second time, he did not hold
a Senate confirmed position as Assistant Attorney General.
   It is more difficult to ascertain the practice at other agencies. Our files suggest
that, even apart from actions by the present Administration, reassignments without
new confirmations were made in 1974 (Department of Agriculture), 1976 (Depart­
ment of Labor), and 1984 (Department of Energy). On the other hand, the Execu­
tive Clerk has identified four instances where the Senate was asked to reconfirm
an official who was being reassigned. In two of these cases, an Assistant Adminis­
trator of the Agency for International Development was transferred to a regional
desk. Because the statute fixing the pay of Assistant Administrators distinguishes
between “ Assistant Administrators” and “ Regional Assistant Administrators,” 5
U.S.C. §5315, the appointees apparently were moving to offices with different
statutory definitions, and the reconfirmations thus appear proper. The other two
cases seem to have involved reassignments where reconfirmation was unnecessary
and perhaps inappropriate. But these two cases can hardly outweigh the decided
practice to the contrary.
  Ms. Lewis is lawfully serving as a Senate confirmed Assistant Secretary of
Labor, performing duties lawfully assigned to her by the Secretary under 29

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          Reassignment o f Assistant Secretary o f Labor Without Senate Reconfirmation


U.S.C. §553. Thus, no further action by the Senate is required for her to continue
to serve as an Assistant Secretary of Labor.

                                                            WALTER DELLINGER
                                                          Assistant Attorney General
                                                           Office o f Legal Counsel




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