      Authority of the President to Designate Another Member
          as Chairman of the Federal Power Commission
While a substantial argument can be made to support the President’s the authority to change the
 existing designation of the Chairman of the Federal Power Commission and to designate another
 member of that agency as Chairman, sufficient doubt exists so as to preclude a reliable prediction as
 to the result should the matter be judicially tested.
Apparently the only remedies the present Chairman would have, if his designation should be recalled
  and another member of the Commission designated as Chairman, would be to bring an action in the
  nature of quo warranto or sue for the additional $500-a-year annual salary of the Chairman in the
  Court of Claims. Since the Chairman has no functions additional to those of any other commissioner
  affecting parties appearing before the Commission, their rights could not be affected even if he
  should win such a suit.

                                                                                 February 28, 1961

           MEMORANDUM OPINION FOR THE ASSISTANT SPECIAL COUNSEL
                            TO THE PRESIDENT

   This memorandum examines the President’s authority to change the existing
designation of the Chairman of the Federal Power Commission and to designate
another member of that agency as Chairman. It concludes that, while a substantial
argument can be made to support the President’s authority to do so, sufficient
doubt exists so as to preclude a reliable prediction as to the result should the
matter be judicially tested. Nevertheless, it should be emphasized that apparently
the only remedies the present Chairman would have, if his designation should be
recalled and another member of the Commission designated as Chairman, would
be to bring an action in the nature of quo warranto or sue for the additional $500-
a-year annual salary of the Chairman in the Court of Claims. Since the Chairman
has no functions additional to those of any other commissioner affecting parties
appearing before the Commission, their rights could not be affected even if he
should win such a suit.

                                                 I.

  Section 3 of Reorganization Plan 9 of 1950, 3 C.F.R. 166 (Supp. 1950), 64 Stat.
1265, relating to the Federal Power Commission, provides:

        Designation of Chairman.—The functions of the Commission with
        respect to choosing a Chairman from among the commissioners
        composing the Commission are hereby transferred to the President.

Plan 9 was submitted to the Congress by President Truman on March 13, 1950,
along with six others relating to six of the regulatory boards and commissions. The
plans were “designed to strengthen the internal administration of these bodies,”



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     Authority of the President to Designate Another Member as Chairman of the FPC


and a feature was to vest in the President the function of designating the Chairman
“in those instances where this function is not already a Presidential one.” H.R.
Doc. No. 81-504, at 4 (1950).
   At the time Plan 9 was transmitted, section 1 of the Federal Water Power Act,
as amended, provided for election of the Chairman “by the commission itself,” and
permitted “each chairman when so elected to act as such until the expiration of his
term of office.” Pub. L. No. 65-280, § 1, 41 Stat. 1063 (June 10, 1920), as amend-
ed by Pub. L. No. 71-412, 46 Stat. 797 (June 23, 1930).
   The President explained, in his transmittal message, with respect to Plans 7–13:

          In the plans relative to four commissions—the Interstate Com-
       merce Commission, the Federal Trade Commission, the Federal
       Power Commission, and the Securities and Exchange Commission—
       the function of designating the Chairman is transferred to the Presi-
       dent. The President by law now designates the Chairmen of the other
       three regulatory commissions covered by these plans. The designa-
       tion of all Chairmen by the President follows out the general concept
       of the Commission on Organization for providing clearer lines of
       management responsibility in the executive branch.

H.R. Doc. No. 81-504, at 5.1 No mention was made in the message of the statutory
provision relating to the term of service of the Chairman of the Federal Power
Commission until the expiration of his term of office. Nor was it mentioned by
Budget Director Frederick J. Lawton, when he supported Plan 9 in hearings before
the Senate Committee which considered it along with others. Mr. Lawton testified:

          The plans affecting the Interstate Commerce Commission, the
       Federal Trade Commission, and the Federal Power Commission pro-
       vide that the President shall designate a Commissioner to serve as
       Chairman. These provisions will vest uniformly in the President the
       function of designating Commission Chairmen. At present he
       already designates the Chairmen in the Federal Communications
       Commission, the National Labor Relations Board, and the Civil Aer-
       onautics Board. . . .

           ....




    1
      For a further discussion of the concept of the Commission on Organization of the Executive
Branch of the Government in this area, see Commission on Organization of the Executive Branch of
the Government, The Independent Regulatory Commissions, Rep. No. 12, at 5–6 (1949), reprinted in
H.R. Doc. No. 81-116, at 5–6 (1949), which emphasized the desirability of the Chairman exercising
administrative control.




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             Supplemental Opinions of the Office of Legal Counsel in Volume 1


           Since the President now designates some Chairmen and does not
        designate others, and since Presidential designation has . . . ad-
        vantages pointed out by the task force, these plans authorize Presi-
        dential designation of Chairmen in all cases.

Reorganization Plans Nos. 7, 8, 9, and 11 of 1950: Hearings on S. Res. 253, 254,
255, and 256 Before the S. Comm. on Expenditures in the Executive Departments,
81st Cong. 30–31 (1950) (“Reorganization Hearings”). Because the President at
that time had the power to designate the Chairman of each of the three regulatory
bodies referred to,2 it could be inferred that the intent to produce uniformity in this
respect extended to the Federal Power Commission. However, the fact that Plan 9
dealt only with the designation of the Chairman, and left his term, as fixed by the
Federal Water Power Act, untouched was expressly called to the attention of the
Senate Committee on Expenditures in the Executive Departments, the only
congressional body which held a hearing on the plan. 3 That Committee had before
it comments, submitted at its request, by the Federal Power Commission. A
separate statement was also submitted by one of its commissioners.
    The Commission commented favorably on the plan and observed that, although
it had “recommended that the present statutory provision that a Chairman be
elected and retain office for the balance of his term be amended, so as to provide
that the Chairman be elected annually,” it saw “no serious objection to the
proposed designation of the Chairman by the President.” Reorganization Hearings
at 215.
    In his separate statement, Commissioner Thomas C. Buchanan took sharp issue
with the provision for choosing a Chairman. He stated:

            The provision for the selection of the Chairman by the President
        changes only the method of “choosing” and does not affect the term
        of the Chairman so selected under existing law.

           The term of a Federal Power Commissioner is presently 5 years,
        therefore, a President in the fourth year of his term might select as
        Chairman the member of the Commission nominated by him and
        confirmed by the Senate during that year. Under the terms of plan 9
        as applied to the old law, the Chairman so selected would serve as
        such not only during the fourth year of the Presidential term in which


    2
      The Federal Communications Act, Pub. L. No. 73-416, § 4, 48 Stat. 1064, 1066 (1934), and the
National Labor Relations Act, Pub. L. No. 74-198, § 3, 49 Stat. 449, 451 (1935), provided no fixed
term for the Chairmen. However, the Civil Aeronautics Act, Pub. L. No. 75-706, § 201, 52 Stat. 973,
980 (1938), provided for designation of the Chairman annually by the President.
    3
      No resolution for disapproval of Plan 9 was introduced in the House of Representatives. Conse-
quently, there were no hearings or discussion on the floor in that branch of the Congress.




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    Authority of the President to Designate Another Member as Chairman of the FPC


      he was appointed, but likewise 4 years of the succeeding term even
      though there may be a change in the Presidential office.

         The provision of plan 9 relating to appointment might better carry
      out the intent of the administration if it provided that . . . chairmen
      shall be appointed annually by the President.

Id. at 215–16.
    Despite the Buchanan observations, the Senate Committee reported favorably
and recommended that the Congress approve Plan 9. It reported:

          The designation of the Federal Power Commission Chairman by
      the President would provide an entirely normal channel of communi-
      cation to the Commission without impairing its independence in any
      way. The alleged “inherent dangers” which some witnesses projected
      into the future simply do not exist in fact as was proved conclusively
      during the committee hearings when witnesses were unable to cite
      any evidence whatsoever of Presidential domination of the chairmen
      of the five regulatory agencies which he presently appoints.

S. Rep. No. 81-1563, at 5–6 (1950).
   When the Plan reached the floor of the Senate, the matter of presidential desig-
nation of the Chairman was an important subject of debate. Strong objection was
voiced by Senator Long to permitting the President “to name the chairman.” 96
Cong. Rec. 7380 (May 22, 1950). Senator Capehart likewise opposed the Plan “for
the simple reason that under it the President will be given authority to name the
Chairman.” Id. Senator Johnson called attention of the Senate to the peculiar
application of the presidential designation provisions to the Federal Power
Commission, quoting the statement filed with the Senate Committee by Commis-
sioner Buchanan, and noted that none had “found any fault with Mr. Buchanan’s
facts” in regard to the proposal. Id. at 7381. Senator Johnson’s reference was not
pursued. Objections to presidential designation did not prevail and the resolution
to disapprove the Plan was defeated by a vote of 37 to 36. Id. at 7383 (disapprov-
ing S. Res. 255, 81st Cong.). As a result Plan 9 became effective—pursuant to the
provisions of the Reorganization Act of 1949, Pub. L. No. 81-109, 63 Stat. 203
(codified at 5 U.S.C. §§ 133z et seq. (1958))—on May 24, 1950. 64 Stat. 1265.

                                         II.

   In light of the foregoing history a substantial argument can be made that ap-
proval of Plan 9 by the Congress resulted in vesting in the President the authority
to designate the Chairman of the Federal Power Commission and to change that
designation from time to time without limitation. The argument would rest on the




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           Supplemental Opinions of the Office of Legal Counsel in Volume 1


reasoning that the purpose of the plans, as described in the presidential message
and executive testimony, was to bring uniformity into the designation arrange-
ments for all seven of the regulatory commissions for which plans were submitted.
Since Congress was aware of the existing right of the Chairman to serve as such
throughout his term in the Federal Power Commission, it might be assumed that in
the interest of uniformity it was meant to substitute for that arrangement an
unlimited authority in the President with respect to the designation and removal of
the Chairman of the Federal Power Commission and that this was accomplished
by Plan 9.
    Moreover, the power to remove an officer is traditionally regarded as an inci-
dent of the power to designate or choose him, cf. Myers v. United States, 272 U.S.
52, 161 (1926), and it seems it would be logical to conclude that, in context, the
power to choose a Chairman conferred on the President by Plan 9 was intended to
be broad enough to cover the incidental power of replacing him. This is made
plain by the President’s statement that the purpose of the plans was to give the
President the same powers with respect to the Federal Power Commission as he
already had with respect to at least two other regulatory commissions and by the
testimony of the Budget Director emphasizing the need for uniformity. In other
words, the function of “choosing a chairman” was intended to include all the
powers incident thereto, including removal as Chairman, and therefore the plan,
when it became effective, operated as subsequent legislation repealing previous
inconsistent legislation.
    It is true that Commissioner Buchanan had presented to the Committee his
view that once a commissioner had been designated as Chairman the designation
could not be changed during that commissioner’s term. However, there is no
evidence that the Committee adopted this view, the report being silent in this
respect. Similarly, it can be argued that the fact that Commissioner Buchanan’s
view was also brought to the attention of the Senate is no indication that this was
the view the Senate took of the matter. Further, if Plan 9 had been enacted in the
course of the removal legislative process, greater weight might have to be given to
Congress’s failure to adopt an appropriate amendment to meet the problem raised
by the contention that Plan 9 dealt only with the method of designating the
Chairman as provided in the Federal Water Power Act, and not with his term. But
the process of adoption of a reorganization plan differs markedly from the normal
legislative process, and less weight must, therefore, be afforded to the failure to
amend. Under section 6 of the Reorganization Act of 1949 (5 U.S.C. § 133z-4
(1958)) Congress had no opportunity to amend. A plan could either be permitted
to take effect or be rejected by a resolution of either House expressing disfavor.
    Finally, it appears clear that the President intended to place the Federal Power
Commission in a situation similar to the other regulatory agencies. The House
permitted the plan to go into effect on his recommendation without discussion,
thereby adopting his view of the matter. Furthermore, in the absence of an




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    Authority of the President to Designate Another Member as Chairman of the FPC


opportunity to amend, the Senate discussion should not be regarded as establishing
a different intention.
   On the other hand, Plan 9 literally refers only to “[t]he functions of the Com-
mission with respect to choosing a Chairman” (emphasis supplied). It does not
purport to deal with his term. This interpretation gains strength from the fact that
the Chairman of the Civil Aeronautics Board, one of the agencies to which the
President pointed as a model, had a fixed term of one year. 49 U.S.C. § 1321(a)(2)
(1958). It can, therefore, be contended that the intent was actually to deal only
with designation and that, even if broader powers to replace had been intended to
be conferred upon the President, the language simply failed to effectuate this
result. It may be of significance in this respect that, as it now appears in the United
States Code, section 1 of the Federal Water Power Act, which incorporates both
the original provisions of the Federal Water Power Act and Plan 9, states that the
President shall designate the Chairman and that “[e]ach Chairman, when so
designated, shall act as such until the expiration of his term of office.” 16 U.S.C.
§ 792 (1958). Thus, rather than repealing prior legislation, the language of Plan 9
can be read consistently with section 1 of the Federal Water Power Act.
   Removal of the limitation can, of course, be effected through amending legisla-
tion. It is not altogether clear that the reorganization method (if lapsed reorganiza-
tion authority is reinstated as presently proposed) would be an available means for
action which only alters the statutory term of the Chairman. Section 4(2) of the
Reorganization Act of 1949 provides that any plan transmitted by the President,
pursuant to section 3, “may include provisions for the appointment and compensa-
tion of the head” of an agency. 5 U.S.C. § 133z-2(2). The term of office of the
head of the agency so provided for “shall not be fixed at more than four years.”
However, section 4(2) appears to limit the President’s authority to provide for the
appointment of the head of an agency only to circumstances in which “the
President finds, and in his message transmitting the plan declares, that by reason
of a reorganization made by the plan such provisions are necessary.” The implica-
tion, therefore, is that the authority conferred by section 4(2) may be used only in
support of a reorganization plan containing other provisions. It would follow that,
unless the provision relating to the Chairman were part of a reorganization plan
affecting other operations of the Federal Power Commission, the authority
contained in the section would not be available.
   Even if the President should designate a new Chairman and it should ultimately
be decided by the courts that the President was not authorized to do so, the
decision would not appear appreciably to affect the operations of the Commission
in the interim. The provisions of the statute which created the Federal Power
Commission (Pub. L. No. 66-280), the legislation which reorganized the Commis-
sion in 1930 (Pub. L. No. 71-412), and its rules and regulations have been exam-
ined, and nothing therein indicates that the powers of the Commission are to be
exercised other than by the Commission as a whole. There are no unique powers
vested in the Chairman which are any different from those vested in other



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           Supplemental Opinions of the Office of Legal Counsel in Volume 1


members of the Commission. The Commission is authorized and empowered to
act as a body no matter which of its members is Chairman. 16 U.S.C. § 797
(1958).
    The provisions of Reorganization Plan 9 did not change this statutory pattern.
The plan transferred administrative functions to the Chairman, but it was intended,
as the President explained in his message transmitting the plan, that the changes
affected only “[p]urely executive duties.” H.R. Doc. No. 81-504, at 4 (1950) (quo-
tation omitted). It was made clear that the plan vested

       in the Chairman . . . responsibility for appointment and supervision
       of personnel employed under the Commission, for distribution of
       business among such personnel and among administrative units of
       the [Federal Power] Commission, and for the usage and expenditure
       of funds.

Id. The Senate Committee found that the Plan did not “derogate from the statutory
responsibilities placed upon the other members of the Commission. They remain
exactly as they are . . . .” S. Rep. No. 81-1563, at 3 (1950) (quotation omitted).
Accordingly, it is difficult to see how a change in the chairmanship could affect
the Commission or the rights of third parties. The possibility exists that adminis-
trative actions, e.g., employments, discharge, etc., taken by a Chairman, later
determined to have been improperly designated, could be challenged, but this is
believed to be of minimal consideration.

                                         III.

    Even if it were to be assumed that the Chairman had functions which were
unique to his office, the authority of his successor to act as Chairman probably
could not be challenged by third parties under the “well-recognized rule that the
title of one holding a public office is not subject to collateral attack and that his
title can only be inquired into in some direct proceeding instituted for that
purpose.” Annotation, Habeas Corpus on Ground of Defective Title to Office of
Judge, Prosecuting Attorney, or Other Officer Participating in Petitioner’s Trial
or Confinement, 58 A.L.R. 529, 529 (1945); see also Ex parte Henry Ward, 173
U.S. 452 (1899); McDowell v. United States, 159 U.S. 596 (1895).
    It is assumed, however, that if the present Chairman were replaced his remedy
would be either to sue in the Court of Claims for the additional salary ($500 per
year) of which he would be deprived, for the period between the date of the
change and the date on which his term of office expires, or to bring an action in
the nature of quo warranto. Such an action was initiated by a member of the War
Claims Commission upon his removal by President Eisenhower. The action was
dismissed on the merits in the District Court, and in the Court of Appeals the
appeal was dismissed as moot by stipulation of the parties. See Wiener v. United




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    Authority of the President to Designate Another Member as Chairman of the FPC


States, 357 U.S. 349, 351 n.* (1958), cf. Newman v. United States ex rel. Frizzell,
238 U.S. 537 (1914).
   As pointed out above, even if the present Chairman should prevail in any such
suit, this would not affect the actions of the Federal Power Commission in the
interim.

                                         NICHOLAS deB. KATZENBACH
                                            Assistant Attorney General
                                             Office of Legal Counsel




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