                                                                    June 2, 1977


77-32     MEMORANDUM OPINION FOR THE
          COUNSEL TO THE PRESIDENT
          “Office under the United States”—National
          Commission on Neighborhoods


   You have asked for our opinion concerning the question o f whether
service by a State official as a member of the National Commission on
Neighborhoods would constitute holding an office under the authority
of the United States. It is our opinion that it would not be so construed
under the Federal Constitution. Article I, Section 6, Clause 2 provides
in part that “no Person holding any Office under the United States,
shall be a Member of either House during his Continuance in Office.”
The legislation establishing the agency itself includes as members two
Members of the Senate and two Members of the House. Obviously, it
was not intended that they must relinquish their congressional offices.
   The practice of Presidents in appointing Members of Congress as
commissioners to negotiate treaties and agreements with foreign gov­
ernments is noted in Constitution of the United States of America,
Revised and Annotated, 1972, p. 523: Such appointments “are ordinari­
ly merely temporary and for special tasks, and hence do not fulfill the
tests of ‘office’ in the strict sense.” The classic definition of an office in
the constitutional sense is found in United States v. Hartwell, 6 Wall.
385, 393 (1867):
    An office is a public station, or employment, conferred by the
    appointment of government. The term embraces the ideas of
    tenure, duration, emolument, and duties.
The Court determined that Hartwell, a clerk in the office of the
Assistant Treasurer of the United States, was an officer, in part because
“his duties were continuing and permanent, not occasional and tempo­
rary.”
  Your attention is also invited to the discussion (in an 1899 House
Judiciary Committee report (Rep. No. 2205, 55th Cong., 3rd Sess.)) of
whether holding positions on certain commissions constituted holding
office within the meaning of the Constitution.
                                                    L   eon   U   lm an
                                     Deputy Assistant Attorney General
                                                    Office o f Legal Counsel

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