         Commencement of the United States Commission
                      on Civil Rights

The United States Civil Rights Commission may commence its duties as soon as the statutory
  quorum of five members has been appointed.

The President may appoint the Chairman, Vice Chairman, and Staff Director prior to the
  appointm ent o f all eight members o f the Commission. Such appointments will be effective
  when a majority o f the Commissioners then in office concurs,' provided that at least five
  members have been appointed.

                                                                          December 7, 1983

        M   em orandum     O p in io n   for th e   C o un sel   to the   P r e s id e n t


   This responds to the request for the advice of this Office concerning several
issues relating to the commencement of the new duties of the United States
Commission on Civil Rights. Specifically, you have asked whether the Com­
mission may begin to exercise its statutory responsibilities prior to the time that
all eight members have been appointed. In addition, you have asked whether
the President may designate a Chairman, Vice Chairman, and Staff Director for
the Commission (which appointments require the concurrence of a majority of
the Commission’s members) prior to the time that all eight members are
appointed. In brief, our conclusions are as follows: (1) the Commission may
begin to take action in accordance with its statutory mandate as soon as the
statutorily prescribed quorum of five members has been appointed; and (2)
although the issue with respect to appointment of the Chairman, Vice Chair­
man, and Staff Director is less clear, we believe that the President may make
these designations as soon as he pleases and that the appointment will be
effective as soon as he has the concurrence of a majority of the Commissioners
then in office, as long as at least five members have been appointed.
   Congress recently adopted H.R. 2230, the United States Commission on
Civil Rights Act of 1983. Pub. L. No. 98-183, 97 Stat. 1301 (1983). This bill
creates a new Commission on Civil Rights with an expanded membership of
eight Commissioners. The new Commission will exercise the same investiga­
tive and informative powers that were exercised by the previous Commission
on Civil Rights. The appointment procedure for the new Commission has been
changed, however, so that four members will be appointed by the President,
two by the President p ro tempore of the Senate, and two by the Speaker of the
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House of Representatives. Because the Commission is a new creation, with a
new procedure for appointment of its members, new appointments must be
made in order for the new Commission to begin functioning.
   1. The first question you have asked is whether the initial meeting of the
Commission may be convened and operation of the Commission may com­
mence prior to the time that all members of the Commission have been
appointed. Section 2(f) of the bill specifically states that “five members of the
Commission shall constitute a quorum.” The Supreme Court has held that a
majority of a quorum may act for a collective body in the absence of a statutory
provision to the contrary. F C C v. Flotill Products, 389 U.S. 179, 183 (1967).
Under this rule, federal agencies have frequently operated with vacancies in
their membership as long as the statutory quorum is observed. In addition, this
Office has consistently concluded that a federal agency or commission may act
as long as the prescribed quorum is present. See, e.g., “Federally Chartered
Corporations — National Consumer Cooperative Bank,” 3 Op. O.L.C. 311
(1979). In the case of the new Commission on Civil Rights, the statutorily
prescribed quorum is five. Therefore, the Commission may begin to undertake
its responsibilities as soon as five members have been appointed and have
taken office.
   2. The second question raised with respect to the new Commission is
whether the President may designate the Chairman and Vice Chairman and
appoint the Staff Director prior to the appointment of all eight members of the
Commission. Section 2(c) o f the bill states:
          The President shall designate a Chairman and a Vice Chairman
          from among the Commission’s members with the concurrence
          of a majority of the Commission’s members.
97 Stat. 1301. Section 6(a)(1) states:
          There shall be a full-time staff director for the Commission who
          shall be appointed by the President with the concurrence of a
          majority of the Commission.
97 Stat. 1305. These provisions raise the issue whether a majority of the
Commission’s members means a majority of the statutorily prescribed mem­
bers (i.e., five) or simply a majority of the members holding office at that time,
as long as at least five have been appointed.1

   1 T he tw o provisions differ slightly in their descriptions o f the concurrence required. Section 2(c) requires
concurrence by a “m ajority o f the C om m ission’s m em bers,” w hile § 6(a)(1) uses the term a “majority o f the
C om m ission.” T here is no indication in the text o r purpose o f the statute or in the legislative history that
C ongress intended the tw o provisions to have different m eanings. Therefore, we do not ascribe any legal
significance to this m in o r difference, an d we believe that the tw o phrases should be interpreted in the same
m anner. W e also note that § 2(c) uses th e term “designate,” while § 6(a)(1) uses the term “appointed.” We
believe that this difference in term inology is due to the fact that the Chairm an is selected from among
m em bers already appointed to the C om m ission, w hile the S taff D irector is appointed to the position from a
differen t jo b . T herefore, this difference in term inology also has no legal significance with respect to the
issues co n sid ered herein.

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   Although a good argument could be made that Congress intended the Presi­
dent to obtain concurrence of a majority of the statutorily prescribed members,
we believe that on balance, the correct reading of the statute is that concurrence
may be obtained from a majority of the Commissioners holding office at the
time of the designation or appointment.2 The language of the concurrence
provisions gives no indication that Congress intended to depart from the
otherwise clear quorum requirement of § 2(0, which permits the Commission
to act when at least five members are present. In addition, § 2(e) states in part
that “any vacancy in the Commission shall not affect its powers.” 97 Stat. 1302.
This provision suggests that a quorum is all that is required in order to exercise
the concurrence necessary to appoint the Chairman, Vice Chairman, and Staff
Director. Finally, when Congress intended a majority of the statutorily pre­
scribed Commissioners to take an action, as in the quorum requirement, it
specifically used the number five to indicate that point. If Congress had
intended to require concurrence by five Commissioners, it could easily have so
stated. All of these factors lead us to the conclusion that a majority of the
current members is sufficient to provide the necessary concurrence, provided a
quorum is present.
   This conclusion is supported by several court of appeals cases concerning a
similarly worded provision in the Interstate Commerce Act. See Michigan
D e p ’t o f Transportation v. ICC, 698 F.2d 277 (6th Cir. 1983); American
Trucking A s s ’n, Inc. \ . United States, 642 F.2d 916 (5th Cir. 1981); Union
Pacific R.R. Co. v. United States, 637 F.2d 764 (10th Cir. 1981); Assure
Competitive Transp., Inc. v. United States, 629 F.2d 467 (7th Cir. 1980), cert,
denied, 449 U.S. 1124 (1981). In these cases the courts concluded that a
statutory provision that “a majority of the Interstate Commerce Commission . .
. constitutes a quorum” meant that a quorum required merely “a majority of the
Commissioners actually in office,” and not a majority of the statutorily pre­
scribed Commissioners. Assure Com petitive , 629 F.2d at 473. In so ruling, the
courts relied on a vacancy clause similar to § 2(e) quoted above. Given the
similarity of the vacancy clauses and the additional similarity between the
language of the ICC’s quorum clause and the language of the concurrence
requirements in the Civil Rights Commission statute, these cases provide
strong support for the conclusion that the required concurrence may be ob­
tained from a majority of the members currently appointed, as long as at least
five members have been appointed.

                                                                 R o bert B. Shanks
                                                      Deputy A ssistant Attorney General
                                                          Office o f Legal Counsel



  2 N eedless to say, the safest course would be to obtain concurrence from a majority o f the statutorily
prescribed members. If five m embers o f the new C om m ission concurred in the appointm ents at issue, there
would be no question about their validity.

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