                         Removal of Members of the
                  Advisory Council on Historic Preservation

C ongress did not intend to limit the P resident's pow er to remove m em bers o f the Advisory C ouncil on
   H istoric Preservation without cause prior to the expiration of their term s of office. W hile certain of
   the C o u n c il’s structural attributes an d substantive functions suggest that Congress intended to vest
   the C ouncil w ith a m easure of day-to-day independence from other federal agencies, this does not
   m ean that it intended the Council to operate free o f the supervision and control of the President
   h im self through his exercise of th e removal power.

T he prim ary functions o f the Council are executive in nature, and thus not such as would permit
   C ongress co nstitutionally to insulate its m em bers from the President’s removal power; it will
   therefore not be inferred from C ongress silence on the m atter that it intended to do so.

A legislative schem e in w hich disputes betw een executive agencies are to be settled in federal or state
   court w ould raise a num ber of serious constitutional problem s, under both Article II and Article
   III, and such an intent on Congress part will not be assum ed absent the m ost com pelling and
   unam biguous language.

                                                                                      March 11, 1982

 MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

   This memorandum addresses the question whether the members of the Adviso­
ry Council on Historic Preservation (Council) are removable by the President
without cause prior to the expiration of their terms of office. For the reasons set
forth below, we conclude that Congress did not intend the Council to operate free
of the supervision and control of the President, and specifically that it did not
intend to impose restraints on the President’s presumptive authority to remove his
appointees to the Council. We conclude in addition that the primary functions of
the Council are not such as would permit Congress, consistent with the Constitu­
tion, to insulate Council members from the President’s removal power.

                                           I. The Council

   The Council was created by the 1966 National Historic Preservation Act (the
Act), Pub. L. No. 89-665 , 80 Stat. 915, 917, with the specific mandate of
advising the President and Congress on matters relating to historic preservation,
recommending measures to coordinate public and private preservation efforts,
and “ reviewing” federal agency actions affecting properties listed on the Na­
tional Register of Historic Places. See H.R. Rep. No. 1916,86th Cong., 2d Sess.


                                                    180
 1 (1966). As amended in 1980 by Pub. L. No. 96-515, 94 Stat. 2987, the Act
provides that the Council should be composed of 19 members, 17 of whom are
appointed by the President.1Of the 17 presidential appointees, seven are other­
wise officers of the United States: the Secretary of the Interior, the Secretary of
Agriculture, and the Architect of the Capitol serve ex cfficio; the President
appoints the heads of four other “ agencies of the United States” whose activities
affect historic preservation. The remaining ten members consist of one governor,
one mayor, four experts in the field of historic preservation, three at-large
members from the general public, and a chairman selected from the general
public, all appointed by the President. The tenure of the federal agency heads on
the Council is, we believe, dependent on their continuing service as agency
heads. And, with the exception of the two members whose tenure depends in part
upon state or local election results, the non-federal presidential appointees serve
for terms of four years. The statute and its legislative history are silent on the
matter of Council members’ removal from office prior to the end of a term .2
    The Council is established “ as an independent agency of the United States
Government.” 16 U.S.C. § 470i. It is exempt from the Federal Advisory Com­
mittee Act, but is subject to the Administrative Procedure Act, 16 U.S.C.
§ 470g. It has an independent budget as a “ related agency” of the Department of
the Interior, 16 U.S.C. § 470t, and authority to hire its own executive director
and staff, 16 U.S.C. § 470m(a). Its executive director is in turn authorized to
appoint a general counsel and other staff attorneys. 16 U.S.C. § 470m(b). The
Council must submit an annual report to the President and Congress, 16 U.S.C.
§ 470j(b), and is authorized to submit legislative recommendations and testi­
mony directly to relevant congressional committees without prior clearance from
the Office of Management and Budget. 16 U.S.C. § 470r.
    Because the nature of the functions performed by an entity is an important
factor in determining the constitutional limits of congressional power to restrict
the President’s power to remove his appointees, see Wiener v. United States, 357
U.S. 349, 353 (1958), that subject has also become a focal point in determining
congressional intent concerning presidential removal power. We therefore set out
the Council’s duties in full in the following paragraphs.
    The Council’s advisory functions are described in § 202 of the Act, 16 U.S.C.
§ 470j. As there directed, the Council shall:

   1 The C hairm an of the N ational Trust for H istoric Preservation and the President o f the N ational C onference o f
State H istoric Preservation O fficers serve on the C ouncil ex cfficio See 16 U .S .C . § 470i(a)(7) an d (8) B ecause
these tw o m em bers o f the C ouncil are not appointed by the P resident, they m ay not participate in any C o uncil
functions in w hich they m ust constitutionally act as officers of the U nited States, an d m u st confine th e ir participation
in the C o u n cil’s ac tivities to those areas in w hich its role is purely advisory See letter o f Dec 1, 1980, from A lan A
farker, A ssistant A ttorney G eneral, to the D irector, O ffice of M anagem ent and Budget.
   2 The discussion of th e P resid en ts rem oval pow er in this m em orandum applies to all o f his ap pointees w hose
tenure in office j s not o therw ise subject to his control by virtue o f their positions as officers of the U nited States— a
group w hich constitutes at least ten persons, and thus a m ajonty o f the Council T he P resid en ts pow er to rem ove the
tw o C abinet m em bers w ho serve ex cfficio is unquestioned. The four other agency heads are likew ise su b ject to
presidential rem oval, at least in their capacity as head of an Executive Branch agency. T hough the A rchitect o f the
C apitol is listed as a congressional officer o r agent of C ongress in the C ongressional D irectory, and is largely su b ject
to congressional direction in the perform ance of his d u ties, he is appointed and subject to rem oval by the P resident
alone. See letter o f A ugust 13. 1979, from A ssistant A ttorney G eneral H arm on to Senator D o m en ici, citin g an
opinion o f the O ffice o f Legal C ounsel dated June 1, 1953


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                (1) advise the President and the Congress on matters relating to
             historic preservation; recommend measures to coordinate ac­
             tivities of Federal, State, and local agencies and private institu­
             tions and individuals relating to historic preservation; and advise
             on the dissemination of information pertaining to such activities;
                (2) encourage, in cooperation with the National Trust for His­
             toric Preservation and appropriate private agencies, public inter­
             est and participation in historic preservation;
                (3) recommend the conduct of studies in such areas as the
             adequacy of legislative and administrative statutes and regulations
             pertaining to historic preservation activities of State and local
             governments and the effects of tax policies at all levels of govern­
             ment on historic preservation;
                (4) advise as to guidelines for the assistance of State and local
             governments in drafting legislation relating to historic preserva­
             tion; and
                (5) encourage, in cooperation with appropriate public and
             private agencies and institutions, training and education in the
             field of historic preservation;
                (6) review the policies and programs of Federal agencies and
             recommend to such agencies methods to improve the effec­
             tiveness, coordination, and consistency of those policies and
             programs with the policies and programs carried out under this
             Subchapter; and
                (7) inform and educate Federal agencies, State and local gov­
             ernments, Indian tribes, other nations and international organiza­
             tions and private groups and individuals as to the Council’s
             authorized activities.
16 U .S.C . § 470j(a).
   In addition, under § 106 of the Act, federal agency heads are required to afford
the Council “ a reasonable opportunity to comment” before approving any
expenditure of federal funds on, or licensing of, an undertaking which would
affect properties on the National Register of Historic Places. See 16 U.S.C.
§ 470f.3 Section 211 of the Act authorizes the Council to promulgate “ such rules

   3    S everal c o u rts have had occasion to co n stru e the “ reasonable oppo rtu n ity to co m m en t” authority in § 106. In
WATCH v. H arris, 603 F.2d 3 1 0 (2d Cir. 1979), cert, denied, 444 U .S 9 9 5 (1979), Ju d g e O akes review ed the
legislative h isto ry o f § 106 an d concluded th a t C ongress intended to provide a “ m eaningful review " o f fed eral or
federally assiste d projects w hich affect h isto ric properties. 603 F.2d at 324. T h e S ecretary o f H ousing an d U rban
D ev elo p m en t w as found to have violated § 1 0 6 in failing to consider the im pact o f a h ousing project o n certain
h isto ric p ro p e rtie s , and in failing to solicit th e C ouncil's ad v ice. T h e court o f appeals th erefore affirm ed th e district
c o u rt's in ju n ctio n ag a in st proceeding with th e project. B ut see Commonwealth c f Pennsylvania v. Morton, 381 F.
S u p p 2 9 3 , 2 9 9 (D .D .C . 1974). in which th e S ecretary o f th e Interior h ad initially failed to co nsult w ith and
s u b se q u en tly failed to follow th e recom m endations o f th e A dvisory C ouncil in a m atter involving a land exchange
a g ree m en t an d th e c o n stru c tio n o f a tower o n previously federal property n e a r G ettysburg N ational C em etery. The
c o u rt found th a t th e S ecretary had “ substantially co m p lied ” w ith § 106 by referrin g the m atter to the C o u n cil fo r its
c o m m en ts afte r th e land ex c h an g e agreem ent h a d been sig n ed , and that " [ i] f he deviated from its recom m endation,
th e S ecretary w as authorized to d o so in his d isc re tio n by th e express term s” o f 16 U .S .C . § 4601-22(b). See 381 F.
Supp. at 298 n .7 . T h e C o u n c il's reviewing a u th o rity under § 106 is enhanced by Executive O rd er 11593, 36 Fed.
                                                                C o ntinued

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and regulations as it deems necessary to govern the implementation” of § 106 of
the Act. 16 U.S.C. § 470s.
   As previously noted, the Council’s executive director is authorized to appoint a
General Counsel and other staff attorneys, who in turn are authorized:
            to assist the General Counsel, represent the Council in courts of
            law whenever appropriate, including enforcement of agreements
            with Federal agencies to which the Council is a party, assist the
            Department of Justice in handling litigation concerning the Coun­
            cil in courts of law, and perform such other legal duties and
            functions as the Executive Director and the Council may direct.
16 U.S.C. § 470m(b). The Council would appear, therefore, to be authorized to
bring lawsuits under some circumstances against at least some other federal
agencies.4
   The 1980 Amendments to the Historic Preservation Act expanded the Coun­
cil’s authority in a new § 214, under which the Council is authorized to make
rules for exempting certain federal actions from the requirements of the Act:
            The Council, with the concurrence of the Secretary, shall promul­
            gate regulations or guidelines, as appropriate, under which
            Federal programs or undertakings may be exempted from any or
            all of the requirements of this Act when such exemption is
            determined to be consistent with the purposes of this Act, taking
            into consideration the magnitude of the exempted undertaking or
            program and the likelihood of impairment of historic properties.
16 U.S.C. § 470v.5
R eg. 8921 (1971), w hich requires thal an agency proposing to “ sell, dem olish o r substantially alter” an y federally
ow ned p roperty w h ich “ m ight q u alify ” fo r nom ination to the N ational Register, m ay take n o action until the
A dvisory C ouncil has been provided “ an opportunity to com m ent.” E xecutive O rd er 11593 also requires that
federal agencies consult w ith th e C ouncil in adopting procedures to assure that th e ir policies and program s
contribute to the preservation o f both federally and non-federally ow ned properties o f h isto n c significance See
 WATCH v H a m s, 603 F.2d at 325
   U nder the 1980 A m endm ents to the A ct, a sim ilar “ opportunity to co m m en t” m ust be afforded the C ouncil un d er
§ 1 1 0 (0 of the A ct w henever federal agency actions “ m ay directly and adversely affect” any d esignated N ational
H istoric L andm ark. See § 206 o f Pub. L. N o. 9 6 -5 1 5 , 94 Stat. 2987, 2996.
   4 T he phrase “ including en forcem ent o f agreem ents w ith Federal agencies to w hich the C ouncil is a p arty ” was
added to th e statute in 1980 See § 301(i) o f Pub. L. N o. 9 6 -5 1 5 , 94 Stat. at 2999. W hile no referen ce to them
appears elsew here in the A ct, the legislative history of the 1980 A m endm ents suggests that the referenced
“ agreem ents” are those described in the C o u n c il’s regulations in fc rt 800 o f Title 36, C o d e o f Federal Regulations
See 36 C .F .R . § 8 0 0 .6 (c) (M em orandum o f A greem ent). See also H .R Rep. N o. 1457, 96 th C o n g ., 2d Sess. 42
(1980) (1 980 H ouse Report) (“ specifically added is language that refers to the enforcem ent o f agreem ents w ith
Federal agencies u n d er S ection 106, other authorities contained in this A ct and im plem enting regulations” ). T he
agreem ents are en tered into by parties to the “ consultation process” by w hich the C ouncil carries o u t its
com m enting function under § 106 o f the A ct, w henever it is determ ined that a federal undertaking w ill have an
adverse effect on an historic property. T h e agreem ent m ust “ detail[] the actions agreed upon by the consulting
parties to be taken to avoid, satisfactorily m itigate, o r accept the adverse effects o n the property.” 3 6 C .F .R .
§ 8 00.6(c)(1). “ T h e consulting parties” include the head of the federal agency having responsibility fo r the
undertaking, the H istoric P reservation O fficer o f the State involved, and the executive d irecto r o f th e C o u n cil. O th er
public and private “ parties in in terest” m ay b e invited by the consulting parties to p articipate in the consultation
process.
   3 T h e term s o f § 2 1 4 are am biguous w ith respect to the nature o f the authority co n ferred , and have not y et b een
interpreted by e ith e r th e C ouncil o r th e co u rts. T h e rulem aking authority und er § 214 clearly cannot b e exercised
absent prio r secretarial “ co n c u rre n ce.” O n ce exercised w ith th e S ecretary’s con cu rren ce, however, th a t authority,
unlike the “ o p p o rtu n ity to co m m en t” requirem ent o f § 106, appears to co ntem plate the estab lish m en t an d
enforcem ent o f a substantive standard o f co n d u c t w hich w ill be binding on “ Federal program s o r u n d ertak in g s”
having an im pact o n historic properties


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   Finally, § 202(b) directs the Council to submit an annual report on its activities
to the President and Congress, as well as any additional periodic reports that it
deems advisable:
        Each report shall propose such legislative enactments and other
        actions as, in the judgment of the Council, are necessary and
        appropriate to carry out its recommendations and shall provide
        the Council’s assessment of current and emerging problems in the
        field of historic preservation and an evaluation of the effectiveness
        of the programs of Federal agencies, State and local governments,
        and the private sector in carrying out the purposes of this Act.

16 U .S.C . § 470j(b).
   In sum, the Council’s role under the statute is primarily that of an advocate,
advisor, and educator in matters relating to historic preservation, with certain
ancillary responsibilities as “ watchdog” over federal agencies whose activities
affect historic properties.

            II. Statutory Restraints on the President’s Power to
                         Remove Council Members

   At no time since the Council’s establishment has Congress expressed any
intent to limit presidential control over the tenure of its members. It is true that
certain of the structural attributes and substantive functions described in the
foregoing section suggest that Congress intended to vest the Council with a
measure of day-to-day independence from other federal agencies. This does not
mean, however, that Congress intended the Council to operate free of the
supervision and control of the President himself through the exercise of the
removal power.
   With respect to the Council’s structure, we do not regard a statutory description
of an entity as “ independent” as dispositive of the question of the President’s
power to remove its members. In this case, the legislative history of the Act
confirms the limited sort of “ independence” Congress intended for the Council.
Under the 1966 Act, the Council was organizationally part of the Department of
the Interior, with its budget and staff integrated into those of the National Park
Service. By 1976, dissatisfaction with the limits this arrangement placed on the
Council’s ability to function “ on an equal and independent basis,” particularly in
reviewing actions of the Department of the Interior under § 106 of the Act, gave
rise to the amendments which reorganized the Council “ as an independent
agency in the Executive Branch.” See § 201(5) of Pub. L. 94—422 as described in
S. Rep. No. 367, 94th Cong., 1st Sess. 11 (1975) (“ 1975 Senate Report”). In
Committee Reports and in Hearings, the Council’s need for “ equal and inde­
pendent” status is discussed in terms of the conflicts arising from its admin­
istrative involvement with the Department of the Interior, and the resulting day-
to-day pressures which had hampered the efficiency and impaired the objectivity
of the Council. The change in status was effectuated, however, by nothing more

                                         184
than modifying arrangements for the Council’s budget and staff. See 1975 Senate
Report at 11; Hearings on S. 327 before the Subcommittee on Parks and
Recreation cf the Senate Committee on Interior and Insular Affairs (Part 3), 94th
Cong., 1st Sess. 301-05(1975) (Statement of Clement M. Silvestro, Chairman,
Advisory Council on Historic Preservation) (1975 Senate Hearings). There is no
suggestion in the 1976 Amendments or their legislative history that Congress
intended that the Council be insulated from the ultimate control of the President,
or, in particular, that its members should no longer be subject to his power to
remove them.6 Indeed, the Council’s new “ independence” enhances its ability to
perform its duty of advising the President apart from influence from the Depart­
ment of the Interior, and strengthens the Council’s difect relationship and respon­
siveness to the President rather than weaken them.
   The statute’s provisions dealing with the Council’s relationship with Congress
are more problematic. As noted above, the Council has since its creation been
explicitly charged with advising Congress as well as the President. In addition,
since § 210 was added to the Act in 1976, the Council is relieved of any
requirement to submit its legislative recommendations or testimony to any
“ officer or agency” in the Executive Branch prior to their submission to Con­
gress. Because this direct reporting authority may have an important bearing on
the removal power of the President, it is worth quoting in full:
              No officer or agency of the United States shall have any
           authority to require the Council to submit its legislative recom­
           mendations, or testimony, or comments on legislation to any
           officer or agency of the United States for approval, comments, or
           review, prior to the submission of such recommendations, testi­
           mony, or comments to the Congress. In instances in which the
           Council voluntarily seeks to obtain the comments or review of any
           officer or agency of the United States, the Council shall include a
           description of such actions in its legislative recommendations,
           testimony, or comments on legislation which it transmits to the
           Congress.
16 U.S.C. § 470r.
   On the one hand, the Council’s direct access to Congress suggests a legislative
intent to have its own lines of communication with the Council kept free from
political or policy influence from elsewhere in the Executive Branch. On the
other hand, this reporting scheme need not necessarily interfere with the Presi­
dent’s general administrative control over the Council’s activities, and as far as
we are aware, it has never done so.7 In this regard, it is significant that the 1980
   6 N one of the structural attributes and substantive functions of the Council w hich m ight suggest a legislative intent
to make its m em bers “ independent” of the P resident’s rem oval pow er w ere part o f the statute u n d er the 1966 A ct
P rior to 1976, therefore, there can have been no doubt that its m em bers were rem ovable by the President.
   7 In deed, we question w hether the statutory classification “ officer or ag en cy ” in § 470r m ust n ecessarily be
co n strued to include the President h im se lf C om pare the definition o f “ officer” in § 2104 o f T itle 5 o f the U nited
States C ode, w hich on its face w ould appear not to include the P resident. To the extent that a b ro ad co n struction o f
this perm issive bypass provision in the legislative reporting area w ould itself raise constitutional separation o f
pow ers issues, we w ould be inclined to read it narrow ly to perm it the President h im self a continued supervisory ro le.
See Congress Construction Corp v. United States, 314 F 2 d 527, 5 3 0 -3 2 (C t C l. 1963) (P resid en t’s p o w er o f
control includes the right to supervise and coordinate all replies and com m ents from the E x ecutive B ranch to
C ongress)


                                                            185
Amendments to the Act repealed what had been the first sentence of § 210, which
directed the Council’s concurrent submission to Congress of any and all of its
legislative recommendations to the President.8 The present reporting scheme
thus leaves the Council free to communicate with Congress directly and inde­
pendently if it chooses, but does not obligate the Council to share simultaneously
with Congress all or indeed any of its advice to the President. The result is a
potentially strengthened tie between the Council and the President, one freed of
the congressional oversight im posed by the 1976 Amendments. Congress’
willingness in 1980 to give up the mandatory features of its own direct access to
the Council and restore some measure of privacy to the relationship between the
Council and the President, is scarcely consistent with an intention that the
Council should not be subject to the President’s supervision and control, and in
particular its members to his removal power.
   In summary, we find nothing in any of the structural aspects of the Council that
establish an intent on the part of Congress to insulate the Council’s membership
from the President’s removal power.9 Indeed, the most recent amendments to the
Act suggest an intent to strengthen, rather than attenuate, the Council’s rela­
tionship with the President, to the point that Congress has actually relinquished
some of the control it asserted in 1976.
   An examination of the Council’s functions leads us to the same basic con­
clusion. The Council’s advisory and reviewing roles under §§ 106 and 202 of the
Act are primarily executive in nature, and, on a constitutional spectrum, locate
the Council squarely within “ the Executive Branch.” While its “ watchdog”
functions suggest the desirability of the Council’s maintaining a certain inde­
pendence from other Executive Branch agencies, this need for independence
does not extend to the President himself. Indeed, it is likely that the Council
would find it useful in fulfilling its statutory tasks to be able to call upon the
President for support and assistance in its dealing with other federal agencies
whose heads are subject to his removal power. A power to make rules and grant
exemptions from them does not distinguish the Council from a number of other

   8 T h e d eleted sentence provided:

             W henever th e C ouncil transmits an y legislative recom m endatio n s, o r testim ony, o r com m ents on
         legislation to the P resident or the O ffice o f M anagem ent and B udget, it shall con cu rren tly transm it
         c o p ies th ereo f to the H o u se Com m ittee o n Intenor and In su lar A ffairs an d the Senate C om m ittee on
         In te rio r and In su lar A ffairs

T h e 1980 H o u se R eport co m m en ts on the requirem ent as having

         proven to h in d e r the C ouncil in its p ro v isio n of independent advice to both the P resident and the
         C o n g ress.

See 1980 H ouse R ep o rt at 42 . We would in an y event question th e constitutionality of a legislative requirem ent that
th e C o u n c il’s reports and recom m endations b e transm itted to C ongress w ith o u t affording it the oppo rtu n ity to
co m m u n icate them first to th e President See note 7 , supra, an d Feb. 21, 1977, M em orandum O pinion fo r the
A ttorney G en eral on “ In sp ecto r General L e g is la tio n ,” 1 Op. O .L .C . 16, 1 7 (1 9 7 7 ) C fB u c k le y \ Valeo, 424 U .S .
1, 1 3 7 -3 8 (1976)
   9 C o n g ress m ay, o f c o u rse, utilize its ow n com m ittees for th e gathering o f inform ation o r appoint advisory
co m m ittees to assist in its o w n legislative fu nctions. W here C ongress places the pow er o f appointm ent in the
P resid en t, how ever, it m ust b e assum ed to have been aware that as a practical m atter presidential appointees w ill be
d ep e n d en t upon th e P resident and not on C o n g re ss, and that a s a constitutional m atter the pow er to rem ove will
follow fro m and be dictated by the structure chosen.


                                                                  186
similarly charged Executive Branch agencies whose heads are clearly subject to
the President’s removal power. See, e.g., 42 U.S.C. § 7418 (federal facilities
must comply with EPA emissions rules under Clean Air Act); 42 U .S.C .
§ 2000e-16 (federal employers are subject to rules and regulations of Equal
Employment Opportunity Commission).
    Authority in the Council to bring lawsuits against other Executive Branch
agencies to enforce the provisions of the Act is somewhat more difficult to
reconcile with a congressional intent that its members be subject to the Presi­
dent’s removal power. We therefore must examine closely the provisions in
§ 205(b) of the Act purporting to.give the Council authority to seek judicial
“ enforcement of [its] agreements with Federal agencies.”
    As noted in the preceding section, § 205(b) of the Act authorizes the Council’s
legal staff to “ represent the Council in courts of law whenever appropriate,
including enforcement of agreements with Federal agencies to which the Council
is a party,” and to “ assist the Department ofMustice in handling litigation
concerning the council. . . .” 16 U.S.C. § 470m(b). Our understanding of this
ambiguous mandate is not enhanced by reference to the legislative history of the
provision. As originally enacted in 1976, this provision appears to have been
intended to deal with the “jurisdictional conflicts” generated by the Council’s
close administrative association with the Department of the Interior, and in
particular the provision of day-to-day legal services to, the Council by the
Solicitor of the Interior. See 1975 Senate Report at 12, 32; 1975 Senate Hearings
at 303-04. It did not include the phrase referring to the enforcement of agree­
ments with other federal agencies. While the legislative history does not explain
what Congress considered “ appropriate” representation of the Council in court
by its own attorneys, it is possible that Congress had in mind some situation in
which the Department of Justice was unwilling or unable for some reason to
represent the United States in connection with a violation of the Act. Whatever
litigating authority was intended for the Council in 1976, the addition in 1980 of
the phrase referring to the enforcement of the Council’s agreements with other
agencies suggests that Congress may by that time have been thinking of a
situation in which the Department of Justice might be obligated to represent some
other federal agency whose position as a party to one of the “ agreements”
described in the Council’s regulations conflicted with that asserted by the Council
itself.10

  10 T hus the 1980 H o u se R eport states:
          S ection 301(i) clarifies the existing authority o f the C ouncil to institute legal p ro ceedings on its
       ow n b eh a if to en su re com pliance w ith the A ct. Specifically added is language that refers to the
       enforcem ent o f agreem ents w ith Federal agencies under S ection 106, o th er authorities contained in
       this A ct and im plem enting regulations. In m ost instances it is expected th at the C ouncil w ill utilize
       the services o f the D epartm ent o f Justice w ith regard to litigation However, it is reco g n ized that
       situations may arise where a Federal agency may violate the provisions c f this Act a nd the only
       recourse is initiation c f legal proceedings by the Council in its own name.
 1980 H ouse R eport at 42 (em phasis supplied). We know o f no situation in w hich the Council has asserted fo r itse lf a
litigating authority independent of the Justice D epartm ent, m uch less an authority to take an o p posing p o sitio n in
litigation.


                                                          187
   A legislative scheme in which disputes between Executive Branch agencies
are to be settled in some forum other than one responsible to the President— in
this case federal or state court— would raise a number of serious problems under
both Article II and, potentially, Article III of the Constitution.' 1Indeed we doubt
that Congress could constitutionally authorize one Executive Branch agency to
sue another in a context such as this one. We will, therefore, not assume that
Congress intended such a scheme absent the most compelling and unambiguous
statutory language.12

                                           III. Constitutional Analysis

   Aft examination of the relevant principles of constitutional law reinforces our
conclusion that Congress intended Council members to be freely removable by
the President.
   Although the Constitution does not explicitly provide for the removal of
officers of the United States, it has long been the general rule that “ [i]n the
absence of specific provision to the contrary, the power of removal is incident to
the power of appointment.” //? re Hennen, 38U .S. (13Pet.)230, 259(1839). See
also Myers v. United States at 119. The specification of a term of office does not
indicate a congressional intent to preclude mid-term removal, but is merely a
limitation of the period that the officer may serve without reappointment. See
Parsons v. United States, 167 U .S. 324 (1897). Where the President’s appoint­
ment power is involved, the presumption against limiting the removal power is
rooted in the “ take care” clause of the Constitution, and any limitations on it

    11 A rticle II o f the C onstitution vests the ex e cu tiv e pow er of th e U nited S tates in the P resident, a pow er w hich
includes general adm inistrative control over th o s e executing the law s See M yers v. United States, 272 U S 52,
 16 3-64 (1926) T his pow er o f control extends to the entire E xecutive B ranch, and includes the coordination and
supervision of all litigation undertaken in the nam e of the U nited States. It w as the intention o f the F ram ers, as
recognized by the S uprem e C o u rt in the Myers c a se , that the executive power w ould be exercised in a “ unitary and
u n ifo rm ” way. 272 U .S . at 135. T h e President th u s has a special obligation to review decisions o r actions that have
given rise to conflict w ithin the Executive B ra n c h , and C o n g ress has no p o w er to p revent his exercising his
su pervisory authority for the purpose of reso lv in g inter-agency disputes See discussion in Feb 2 1 , 1977,
M em orandum O pinion fo r the A ttorney G en eral on “ Inspector G eneral L eg islatio n ,” 1 Op. O L C 16 (1977)
Sim ilarly, C ongress m ay n ot, consistent with A rticle III o f the C onstitu tio n , d irect federal courts to ^ d ju d ic a te
controversies w hich do not m eet constitutional standards of ju sticia b ility See Muskrat v United States, 219 U .S .
3 4 6 (1 9 1 1 ). I f both the C ouncil and the agency alleg ed to have violated the Act are w ithin the Executive B ranch, then
the P resident has both th e pow er an d the duty to resolve any dispute between th em as to w hether a violation o f the A ct
h as o cc u rre d To provide instead that the ju d ic ia ry should resolve the d isp u te w ould g o against the established
p rinciple o f federal ju risd ictio n that a person c a n n o t create a ju sticia b le controversy against him self, and itself raise a
separation o f pow ers issue. T h e co u rts might w ell question w hether, in light o f th e P resident’s overall authority over
both agencies, sufficient ad v e rsan n e ss exists in such a situation. C f South Spring Hill Gold Mining Co. v Amador
Medean G old Mining C o., 145 U .S . 300 (1892). They m ight also conclude th at legal disputes between Executive
B ranch agencies are m ore properly for the P resident to resolve as p a rt o f his constitutional du ty to “ take C are that the
Law s be faithfully ex ecu ted .” A rt II, § 3. See M em orandum O pinion for the A cting A ssistant A ttorney G en eral,
Tax D ivision, A pril 2 2 , 1977, 1 O p. O L C . 7 9 , 83 (1977) (dispute between Internal R evenue S ervice and Postal
S ervice not ju sticia b le). Compare UnitedStates v Nixon, 418 U S . 683 (1974) an d United States v. ICC, 337 U .S .
4 2 6 (1949). In this ca se it is un lik ely that the C o u n c il’s enforcem ent o f one o f its agreem ents w ith another federal
agency w ould be regarded as an action taken o n b e h a lf o f a private p a rty or p arties, so as to satisfy the requirem ents
o f ju sticia b ility suggested by the holding of U nited States v. ICC.
    12 We express n o view s as to w hether the C o u n c il’s legal staff m ay be authorized by the A ct to bring suit against
independent regulatory c o m m issio n s such as th e Federal Trade C om m ission w h o se m em bers d o not serve at the
pleasure of th e P resident, or to represent the p o sitio n of the U nited States in co u rt in connection w ith a violation o f
the A ct w here the Ju stice D ep artm en t is unw illing or for som e reaso n unable to d o so. N either o f these authorities
w ould in any event be in c o n sisten t with C o u n cil m em bers’ being subject to the President's rem oval pow er


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must be strictly and narrowly construed. See Myers v. United States at 161, 164.
Therefore Congress may constitutionally restrict the President’s removal power
only if the officer serves on an “ independent” body whose tasks are primarily
quasi-legislative or quasi-judicial, and which tasks “ require absolute freedom
from Executive interference.” Wiener v. United States, 357 U.S. 349, 353
(1958). See Humphrey’s Executor v. United States, 295 U.S. 602 (1935). If an
agency’s primary functions are “ purely executive,” the President’s power to
remove its members must under the Constitution be unfettered. Id. at 631-32.13
    As discussed in the preceding section, the Council is structured in such a way
as to make it administratively “ independent” within the Executive Branch. In
particular, we have noted the statutory provisions which purport to prohibit its
being required to channel its reports to Congress through the Executive Office of
the President. None of its structural features is, however, necessarily incompati­
ble or inconsistent with its also being ultimately subject to the authority and
supervision of the President himself. More importantly, as the Court noted in
Wiener, “ the most reliable factor for drawing an inference regarding the Presi­
dent’s power of removal . . . is the nature of the function that Congress vested in
the [Council].” 357 U.S. at 353. An examination of the Council’s functions
leaves no doubt that they are primarily executive in nature. The Council’s
advisory and reviewing roles under §§ 106 and 202 of the Act suggest the
desirability of its maintaining a certain independence of other Executive Branch
agencies, but these are “ purely executive” functions which do not require
“ absolute freedom from Executive interference” under the standards set forth in
Humphrey’s Executor and Wiener.14 While the rulemaking and exemption-
granting authorities arguably conferred on the Council by §§ 211 and 214 of the
Act are closer to the quasi-legislative or quasi-adjudicative functions which may
constitutionally be insulated from the threat of removal, these are not its primary
tasks. Finally, even if one assumes some limited authority in the Council to
litigate in the name of the United States, this is the prototype of a “ purely
executive” function.15
    In sum, the primary functions of the Council, as interpreted in light of the
relevant constitutional principles, are not such as to permit its members’ insula­

    13 In Humphrey's Executor the C o u rt ruled that m em bers of the Federal Trade C om m ission needed secu rity
against m id-term rem oval in order to “ exercise [their] jud g m en t w ithout the leave o r hindrance o f an y o th er official
or any departm ent o f the governm ent ” 295 U S . at 6 2 5 -2 6 Specifically, its quasi-legislative an d q u asi-judicial
functions required that it be free of executive control. See 295 U .S at 628. Sim ilarly, in Wiener, the ad judicative
functions o f the War C laim s C om m ission w ere held to require freedom from “ control o r coercive in flu en ce” by the
Executive. 357 U S at 355, quoting from 295 U .S at 629.
    14 In the context of exam ining the nature o f the functions of another advisory body created to ad v ise an E xecutive
Branch D epartm ent, the D istrict C ourt for the D istrict of M assachusetts recently recognized that g iv in g advice and
m aking recom m endations “ fall into the category of ‘purely executive          Martin v Reagan, 525 F S u p p 110, 1 13
(D . M ass. 1981) (N ational Institute o f Justice A dvisory Board) See also Patino v Reagan, C ivil N o . S - 8 1 -4 6 9
M LS (E .D C al S ept 29, 1981). T hose cases involved removal by the President o f his appointees to ad v iso ry
boards w hich advised the National Institute of Justice (N IJ) The N IJ, as the C ouncil here, has been expressly
endow ed by C ongress w ith a m easure o f independence from the A ttorney G eneral in its day-to-day decisio n m ak in g :
its director, however, serves at the pleasure of the President
   15 We doubt that C ongress could constitutionally authorize the C o u n cil’s legal staff to sue other Executive B ranch
agencies if those agencies w ere, like the C ouncil, subject to direction and supervision by the P resident. See note 11,
supra


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tion from the President’s authority and control. We will not, therefore, infer from
Congress’ silence on the matter that it intended to impose any restrictions on his
power to remove his appointees to the Council whenever he wishes to do so, and
for whatever reason he chooses.

                                             T h eo d o r e B. O lson
                                           Assistant Attorney General
                                            Office of Legal Counsel




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