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This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Speechwriting, White House Office of
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Speech File Backup Files
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Chron File, 1989-1993
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Princeton University 5/10/91 [OA 8322] [8]
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1
CRS
Congressional Research Service
The Library of Congress
Washington, D.C. 20540
U.S. Government
IP 162U
We have prepared this packet of materials in response to numerous
requests for information on the Government of the United States. Enclosed
is factual material on the United States Government, a list of Federal
Information Centers, and a bibliography which contains additional sources of
information, many of which may be available in a local library.
A useful source of information on the Federal Government is the United
States Government Manual, which summarizes the organization and functions
of Government agencies and lists the names of major Government officials.
It is available at many libraries and can be purchased from the
Superintendent of Documents; the address and price are enclosed.
One of this Info Pack's items, Our American Government; What is It?
How Does it Function? 150 Questions and Answers (published in 1981, and
now out of print), is included because it is an excellent source of information
on the Federal Government, although some of its information is out-of-date.
For example, on pages 25 and 26, it mentions "13 executive departments" and
the "Veterans Administration" (VA), when, in fact, there are now 14
departments because the VA became the Department of Veterans Affairs in
1989.
Members of Congress who want further information on this topic may
contact CRS at 7-5700. Additional CRS Reports may be identified by looking
in the current Guide to CRS Products (for congressional use only) under
"Executive Organization" and in the latest Update under "Government and
Politics."
Constituents may find additional information on this topic in a local
library through the use of Readers' Guide to Periodical Literature, Public
Affairs Information Service Bulletin (PAIS), and various newspaper indexes.
Books on this subject may be identified through the library's catalog or the
most recent edition of Subject Guide to Books in Print.
We hope this information will be helpful.
Congressional Reference
Division
86-1027 A
CRS Report for Congress
The Separation of Powers Doctrine:
An Overview of its Rationale and Application
Jay R. Shampansky
Legislative Attorney
American Law Division
December 4, 1986
CRS
Congressional Research Service The Library of Congress
The Congressional Research Service works exclusively for the Congress, conducting re-
search, analyzing legislation, and providing information at the request of committees,
Members, and their staffs.
The Service makes such research available, without partisan bias, in many forms includ-
ing studies, reports, compilations, digests, and background briefings. Upon request,
CRS assists committees in analyzing legislative proposals and issues, and in assessing the
possible effects of these proposals and their alternatives. The Service's senior specialists
and subject analysts are also available for personal consultations in their respective fields
of expertise.
ABSTRACT
The separation of powers doctrine is founded on a political
philosophy which envisions three relatively distinct types of govern-
mental functions, each of which is to be performed by a different
branch in order to avoid a tyrannical concentration of power in any
one entity. The three branches created by the Constitution were intended
to be independent in some respects and interdependent in others.
CRS-66
by the nomination struggle, make the ultimate outcome problematic. In the end,
time, a change in administration, a change in the Supreme Court's composition,
or a political settlement may temper or moot the issue.
Morton Rosenberg
Specialist in American
Public Law
American Law Division
CRS-65
The President is an agent selected by
the people, for the express purpose of seeing
that the laws of the land are executed. If, upon
his own judgment, he refuse to execute a law and
thus nullifies it, he is arrogating to himself
controlling legislative functions, and laws have
but an advisory, recommendatory character,
depending for power upon the good-will of the
President. That there is danger that Congress
may by a chance majority, or through the
influence of sudden great passion, legislate
unwisely or unconstitutionally, was foreseen by
those who framed our form of government, and the
provision was drawn that the President might at
his discretion use a veto, but this was the
entire extent to which he was allowed to go in
the exercise of a check upon the legislation. It
was expressly provided that if, after his veto,
two-thirds of the legislature should again demand
that the measure become a law, it should thus be,
notwithstanding the objection of the Chief
Executive. Surely there is here left no further
constitutional right on the part of the President
to hinder the operation of a law.
188
The notion of the unitary executive marks the latest chapter in the
historic, inevitable clash of the political branches in our system of separated
powers. The current controversy takes on added significance and immediacy
since it has reached beyond theoretical rhetoric and has motivated executive
action on a variety of fronts that directly challenges asserted congressional
prerogatives. Definitive judicial resolution has been called for and such
resolution is not unlikely given the thus far irresolute posture of the
litigants and seemingly inexorable and unavoidable march to the Supreme Court.
Although history and legal precedent seem to favor Congress' position, the
uncertainties of the litigation process before the High Court, now compounded
188 3 W. Willoughby, The Constitutional Law of the United States 1502-03
(2d ed. 1929).
CRS-64
popular support as a basis of presidential political power. 186
It
is
a
political concept and has been variously cited to imply a free-floating
responsibility unfettered by legal standards, legal review, or legal
consequences. This distinction was made early in our history during the
intense struggle over the scope of presidential power between President Andrew
Jackson and the Senate in 1834. Jackson sent a formal protest to the Senate in
response to a resolution of that body censuring him for exercising powers that
the Senate believed did not belong to the President. In that protest Jackson
described himself as "the responsible head of the Executive Department. "
Daniel Webster in reply disputed that Jackson meant he was legally responsible
because "legal responsibility signifies liability to punishment for misconduct
or maladministration." Rather, Webster argued, Jackson was referring to
political responsiveness. "Sir, it is merely responsibility to public opinion.
It is a liability to be blamed, it is the chance of becoming unpopular, the
danger of losing a re-election. Nothing else is meant in the world. It is the
hazard of failing in any attempt or enterprise of ambition. This is all the
responsibility to which the doctrines of Protest hold the President
187
subject.
In contrast, the legal responsibility to carry out congressional
enactments imposed by the Constitution on the President seems of a higher
order. In this regard Professor Willoughby has commented:
186 See, e.g., Rockman, The Modern Presidency and Theories of
Accountability: 0ld Wine and Old Bottles, 13 Cong. and the Presidency 135, 154
(1986) ("Accountability is foremost dependent upon politics, and the real power
that presidents have stems from this. That power primarily rests with other
elites, but its wellspring is popular sovereignty
").
187
Quoted in Rohr, To Run A Constitution 144 (1986).
CRS-63
consistently rejected by the courts since Kendall. 184
This understanding that the President is legally responsible for seeing
that congressional enactments are carried out also serves to diminish
substantially the Executive's related argument that, since he is the only
official elected by all the people, he must be accountable to the people for
actions of all executive agencies. 185 The contention confuses political
accountability with legal responsibility. The former reflects the notion of
184 See, e.g., Youngstown Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 587
(1952) (" [t]he President's power to see that the laws are faithfully
executed refutes the idea he is to be a lawmaker. The Constitution limits his
functions in the lawmaking process to the recommending of laws he thinks wise
and the vetoing of laws he thinks bad.") In re Theodore Olson, 818 F.2d 34
(D.C. Cir., Div. No. 86-1, 1987) ("The 'take care clause' does not require the
President (or his delegate) to 'execute the laws.' The President's
responsibility may be satisfied by Congress entrusting the power of execution
to some other officer while the President's obligation would be satisfied by
the right of the President (or his delegate) to remove the individual officer
for impropriety." citing Kendall.) (emphasis in original); National Treasury
Employees Union V. Nixon, 492 F. 2d 587, 604 (D.C. Cir. 1974) ("That
constitutional duty does not permit the President to refrain from executing
laws duly enacted by the congress as those laws are construed by the
judiciary. Haring V. Blumenthal, 471 F. Supp. 1172, 1179 (D.C.C. 1979);
United States V. Solomon, 419 F. Supp. 358, 372 (D. Md. 1976) ("The duty of the
President to see that the laws be executed is a duty that does not go beyond
the laws or require him to achieve more than Congress sees fit to leave within
his power", quoting Holmes, J. in Myers V. U.S. 272 U.S. 52, 177 (1926))
Guadamuz V. Ash, 368 F. Supp. 1233, 1243 (D.D.C. 1973) ("[N]owhere does our
Constitution extol the virtue of efficiency and nowhere does it command that
all our laws be fiscally wise. It does most clearly, however, state that laws,
good or bad, be enacted by the Congress, and enforced by the President. '[I]f
the power sought here were found valid, no barrier would remain to the
executive ignoring any and all congressional authorizations if deemed them, no
matter how conscientiously, to be contrary to the needs of the nation. ").
185 See Habicht Statement, supra at p. 5.
CRS-62
the President "shall take care that the laws be faithfully executed,"
regardless of who executes them -- arguably a duty quite different from the
claim of a single-handed responsibility for executing all the laws. A literal
reading of the "take care" clause seems to confirm the President's duty to
ensure that officials obey Congress' instructions; it does not seem to create a
presidential power so great that it can be used to frustrate statutory
congressional intention. In the words of the Kendall Court, where a valid duty
is imposed upon an executive officer by the Congress, "the duty and
responsibility grow out of and are subject to the control of the law, and not
the direction of the President. 183 Indeed, similar presidential claims of
broad substantive authority deriving from the "take care" clause have been
deliberations and the actions of the First Congress. On August 6, 1787, the
Committee of Five reported the draft of the Constitution that in art. X, sec.
2, provided for a single executive who "shall appoint officers in all cases
not otherwise provided for by this Constitution." 2 Farrand, Records of the
Federal Convention 185 (1911). On August 20 proposals were submitted to the
Committee of Five for a Council of State consisting of the Chief Justice, the
secretaries of domestic affairs, commerce and finance, foreign affairs, war,
marine and state. All the secretaries were to be appointed by the President
and hold office during his pleasure. 2 id. at 335-337. That proposal was
rejected because "it was judged that the President by persuading his Council to
concur in his wrong measures, would acquire their protection
If
2
id.
at
542. All that ultimately survived of the proposal was the Opinions clause.
Two decisions of the First Congress, however, diminish its significance.
First, the Congress allowed the President the right of removal of officers he
has appointed with advice and consent of the Senate, a decision since accorded
constitutional stature. Myers V. U.S., 272 U.S. 52 (1926). Second, Congress
made the Treasury secretary, and later other domestic department heads, report
directly to the Congress rather than the President. See, supra, pp. 14-18.
Neither congressional action indicates a perception of any substantial content
to the Opinions clause, and indeed, appears to totally devalue it. If Congress
had believed the Opinions clause had substantive content, there was no need to
statutorily provide for removal. Similarly, if the requirement to report to
the President had any real meaning, the congressional dictate to domestic
agencies to report directly to it for over a century would surely have
engendered some controversy.
183
Kendall ex rel Stokes V. U.S., 37 U.S. (12 Pet). 524, 610 (1838).
CRS-61
executive power not textually reserved to the President in article II.
Moreover, article II ensures that Congress will have the choice of vesting the
crucial appointment of most "inferior" officers in those department heads.
The strongest support for full presidential control over the executive
establishment rests on the provision that the President "shall take care that
the laws be faithfully executed.' The "take care" clause is not, however,
among the major presidential powers set forth in section 2 of article II, and
seems at best a modest grant power, and at least a limitation on the office's
power. Among the powers explicitly granted to the President is the power to
"require the Opinion, in writing, of the principal Officer in each of the
executive Departments, upon any Subject relating to the Duties of their
respective Offices." A broad reading of the "take care" clause would have the
effect of reducing this clause -- which appears among the grant of major
presidential powers in section two -- to surplusage. If the President was
meant to have full control over the executive, including the power to discharge
at will, why was the power to request written opinions put in the Constitution?
The Constitution has not been read to have such redundancy. A reasonable
interpretation of the Opinions clause is that it exists because it was not
assumed, or at the very least not obvious, that the President had absolute
power over Heads of Departments. 182 And the "take care" clause says only that
182
Indeed, a brief review of the origins of the Opinions clause appears
to make reliance on it highly questionable. That clause is the modest
constitutional residue of a number of efforts at the Philadelphia Convention to
surround the President with a Council of State. The clause might have had
significance in light of the rejection of a plural executive in favor of a
single executive but for the ultimate adoption of the separation of powers and
the particularized checks and balances. Important here are the provisions for
sharing of the appointment power with the Senate, and the exclusive power of
the Congress over the creation and abolition of offices and departments, and
appropriations, which effectively vitiate any substantive content the Opinions
clause may be speculated to have. This is demonstrated by Convention
CRS-60
Case); it may vest in a subordinate official appointed by the President, and
subject to his removal at will, discretionary decisionmaking authority which
cannot be interfered with by him (Kendall V. U.S., Public Citizen V. Burke);
and it may vest power in a legislative branch officer which may influence the
actions of executive officials (Ameron V. Corps of Engineers). One prominent
commentator argues that the Bowsher opinion would support insulating sub-
cabinet officials, such as the administrator of EPA or the commissioner of the
Food and Drug Administration, from removal except for cause.
180
This is, of course, far from denigrating or denying the powerful role the
President plays in the policymaking and effectuation processes. The ability to
recommend and veto legislation, to appoint and discharge his appointees, to
influence (through his powers in the budget and resource allocation process)
even those officials not subject to at will removal, and to bring to bear the
force of the office on the bureaucracy and the legislature, ensures the
Executive's co-equal role in the constitutional scheme. But it does underline
the limits of the President's role and subjects the notion of a unitary
executive to challenge.
Both literal and structural analysis of the constitutional text, however,
fails to suggest a hierarchical executive. The executive power is not
uniquely vested in the President alone, just as the President's functions are
not solely executive. 181 Article II clearly anticipates the creation of an
administrative bureaucracy by its mention of "Heads of Departments", and the
necessary and proper clause of article I suggests that it would be Congress
that would do the creating. Congress can assign to a "Head of Department" any
180
Verkuil, supra note 22, at 794-95.
181
E.g., the veto power.
CRS-59
In Commodity Futures Trading Commission V. Schor, 177 the Supreme Court
indicated that in separation of powers cases where aggrandizement is not in
issue, it will weigh the justifications for the congressional scheme in
question, including the necessity to maintain "Congress' ability to take needed
and innovative action pursuant to its article I powers,' against the degree of
intrusion on the ability of the President to perform his assigned functions.
178
"De minimis disruptions are insufficient to block an otherwise legitimate
congressional objective. 179 In light of the factors just reviewed, it would
seem likely that a court reviewing the question would find that the limited
potential disruptions identified are justified and necessary and do not create
a significant impediment to the President's execution of the law.
V. Conclusion: Congressional Control of Agency Decisionmaking and the
President's Duty to Obey the Law
The history of federal administrative practice, and relevant judicial
precedent, accord Congress virtually plenary power over the creation of the
structure of the administrative bureaucracy and the powers of the offices and
officers who are to carry out the legislative will. To summarize the current
state of the law, Congress may by statute create so-called independent
regulatory commissions headed by officials appointed by the President but not
removable by him except for cause (Humphrey's Executor); it may create offices
within executive departments whose incumbents are appointed by the department
heads or the courts but who are subject to removal only by the appointing
authority and not the President (U.S. V. Nixon, U.S. V. Perkins, In re Sealed
177
106 S.Ct. 3245 (1986).
178
106 S.Ct. at 3258.
179
Id. at 3260.
CRS-58
enforcement scheme by both Congress and the primary enforcement agency, and its
extensive use in the past, at least, has apparently not resulted in such a
significant degree of disruption of the target agencies, or the overall
coordination efforts of the Executive, to require presidential interdiction.
Second, the President does not seem to have been deprived of his
traditional means of pre-decisional influence by the grant of order authority
to EPA. He has the power to appoint the Administrator of EPA and thereby
assure himself of a person respectful of presidential prerogatives and
sympathetic to the President's policies and goals. Through his Office of
Management and Budget the President can control EPA's budget submission,
personnel ceiling, rulemaking, information gathering, and contacts with
Congress 175 -- in short, the life-blood of the Agency. Finally, the President
may dismiss the Administrator at will, a power the Bowsher court described as
the one an incumbent official "must fear, and, in the performance of his
functions, obey. 1176
Finally, this is not a situation involving on its face an attempt at
congressional aggrandizement. Congress has retained no voice in EPA's day-to-
day operations. Thus there is no implication of a Chadha problem. Nor does
Congress hold a sword of Damocles threat of removal as in Bowsher. Therefore
the case for a discernible attempt to effect a structural shift of
constitutional power from the President to Congress would appear questionable.
175
See Olson, The Quiet Shift of Power: OMB Supervision of
Environmental Protection Agency Rulemaking Under E.O. 12,291, 4 Va J. of Nat.
Res. Law 1, 5-8 (1984).
176
Bowsher V. Synar, 106 S.Ct. 3181, 3188 (1986) (quoting Synar V. United
States, 626 F.Supp. 1374, 1401 (D.D.C. 1986) (3-judge court).
CRS-57
understand one point in particular. Without the
ability to issue unilateral administrative
orders, consent orders, wouldn't it be a problem
from the standpoint of other members of the
regulated community in damaging EPA's credibility
with the states and the public?
Mr. LUCERO. That was another matter that I
didn't mention but you are right. That is an
issue that we have always perceived. We have two
problems.
The private community, we have said is
subject to orders, subject to orders with
penalties and we will not accept for certain
violations and in certain circumstances,
voluntary compliance. It will have to be reduced
to an order and the penalty will have to be paid.
There is the question of fairness. The other
problem concerning the states is that we have
insisted that the states exercise order authority
for certain kinds of violations and to suddenly
say that can't be used against a Federal agency
or that EPA at least won't use them against a
Federal agency, creates a disparity between what
we are insisting on for other private parties and
Federal facilities.
Mr. WYDEN. Aren't some of these Federal
facilities some of the very worse of the RCRA
compliance problems?
Mr. LUCERO. Yes.
173
Testimony presented at congressional hearings also indicates that as of
April 1987 some 151 unilateral administrative orders had been issued to 13
174
federal agencies without objection from the Justice Department.
Arguably,
then, the administrative order authority is deemed an important part of the
173
Testimony of Gene Lucero, Director, Office of Waste Programs
Enforcement, EPA, House Energy and Commerce Committee Hearings, supra note 8.
To the some effect, see testimony of Richard Mays, Senior Enforcement Counsel,
Office of Enforcement and Compliance Monitoring, EPA; and James R. Moore,
Counsel, Region X, EPA.
174
Id.
CRS-56
over time is that an order or a document that at
least starts the order process, whether we call
it a complaint or something else, is a very
important signal to the Federal agency that swift
action is necessary. It focuses the attention of
the receiving agency that something needs to be
done.
We obviously are applying the same approach
against other private parties and felt we needed
to be consistent. We have always felt that if we
had the full range of authorities, that we would
be able to use the most effective tools as we
could choose at individual sites. We have always
felt that the use of orders would be better
perceived by the public as being the more serious
enforcement and at the same time where we could
enter into consent agreements with the parties,
whether it be Federal agencies or private
parties, that the public would feel that was an
appropriate agreement. It would be arm's length.
It would be the subject of an order.
Finally, we felt that orders, whether they
were consent orders or if they were a final
order, would be enforceable. We always felt both
for private parties as well as for Federal
facilities, that you had to have a process that
was enforceable, especially in the case of
Federal facilities where EPA can't take the party
to court, based on the advice from the
Department of Justice, there needed to be a
mechanism where someone else in the case of a
disagreement or the fact there was non-
compliance, could at least raise that issue to
get the attention of the agency towards
compliance.
We have also heard from a whole number of
Federal facilities anecdotally that when they get
the order, they are better able to deal with
their own bureaucracy and can get attention to
what needs to be done.
When we took all of these things on balance
and given our prior experience, we concluded in
1984 and 1985 that we really needed to go to a
process of utilizing orders against Federal
agencies just as we would with other private
parties.
Mr. WYDEN. Let me just make sure I
CRS-55
Congress. For instance, federal facilities may be the subject of suits by EPA,
state agencies, or private parties. The issuance of an administrative order
against an agency facility, however, may facilitate a citizen suit since the
order's directives may be deemed part of the statutory requirements that must
be followed by the subject agency. Thus, the threat to issue an administrative
order may be an effective lever to achieve voluntary compliance by the federal
agency. Their selective use is also seen as enhancing the credibility of
EPA's enforcement efforts generally. Testimony of EPA officials before
Congress supports the efficacy of the orders as an essential enforcement
device. In response to an inquiry to explain the need for such orders one EPA
official stated:
Mr. LUCERO, Yes, sir. Let me first of all
give you a quick background. In the RCRA
program, we have found over the last several
years, especially prior to 1985, where we were
using primarily a compliance agreement and a
voluntary approach, that compliance within the
RCRA program wasn't very good. We decided in
1984 and 1985 that in order to promote compliance
across the board, it would be necessary to go to
more formal enforcement practices including the
use of orders.
We also felt it was necessary to set up some
time frames in which these orders had to be
issued and against the certain types of
violations. That was because, as I said, we
weren't seeing very good compliance.
We have always felt that the way RCRA was
established, the requirements that apply to
private parties applied to Federal agencies as
well. When we determined that we needed to go to
more orders or to an order strategy as a formal
mechanism, we felt that also should be applied
against Federal facilities.
When we got into discussions about why
orders versus other types of agreements, it was
important for a couple of reasons, I think. In
dealing with Federal facilities, what we found
CRS-54
enforcement mechanism for federal environmental statutes enacted in the 1970's,
and the rules promulgated pursuant to them, is the federal government's ability
to regulate individual sources of pollution, both private and public. These
statutes empower the federal government to bring administrative or civil
actions, and to seek remedies including injunctive relief and significant civil
penalties. Criminal penalties are also available in certain situations. To
supplement federal enforcement efforts, environmental statutes usually allow
the federal government to delegate primary responsibility for enforcing
environmental regulations to state authorities. In addition, at least twelve
of these statutes authorize citizen suits against alleged violators, including
federal agencies. These statutes usually also permit citizens to intervene as
a matter of right in civil suits filed by the government in federal court. One
172
statute even permits citizens to intervene in federal criminal proceedings.
This complex enforcement mechanism, which enlists all levels of government and
private citizens, may be seen as reflective of Congress' recognition of the
enormity of the problem of enforcement. The environment statutes and their
implementing regulations sweep so broadly both with respect to substance and
jurisdiction that no single enforcement agent is feasible. In one sense the
enforcement process has become part of the policymaking process. Since the
enforcement resources are so limited and the rules so inclusive, selection of
appropriate enforcement targets, enforcement mechanisms, and the remedies to be
sought, become critical in the overall effort to achieve maximum voluntary
compliance.
In this context, administrative orders may be argued to be an important,
integral part of the multi-level, staged enforcement process envisioned by
172
See, 33 U.S.C. 1515(b)(1)(1982).
CRS-53
core executive responsibility that is peculiarly intruded upon by the
unilateral issuance of administrative orders.
Nor is it, or could it, be seriously claimed that Congress is acting
outside the scope of its article I powers in legislating with regard to
environmental policy in the nation generally, or with respect to the
responsibilities and duties in that area of federal agencies in particular.
There is no doubt that Congress could direct an agency by law to do what EPA
has been authorized to direct an agency to do by its order authority. Thus,
the Executive's claim must be that where Congress does not act directly in
assigning duties and responsibilities to agencies, but instead vests in an
agency the authority to direct orders to other agencies, the President must be
free, in order to fulfill his duty to see that the laws are faithfully
executed, to intervene in such administrative decisions to ensure the proper
coordination of the totality of the priorities, limited resources, competing
policy goals, and conflicting jurisdictions and responsibilities of agencies
throughout the federal government in a given area of policy concern. To allow
one agency among many in an area to make such administrative determinations
without supervision or control is disruptive of this constitutionally imposed
presidential function and is an intrusion that violates the separation
doctrine.
Assuming the posited disruption, a number of factors support the argument
that the threat posed is minimal and that any impact is justified by Congress'
need to provide an effective scheme of enforcement of the national
environmental policy.
First, EPA's administrative order authority may be seen as integral part
of the complex environmental policy enforcement scheme. The primary
CRS-52
confronted the separation of powers issue. 167 Thus direct application of
separation analysis by the courts may be expected. As was previously described
in more detail,
168
in the absence of a specific textual commitment courts
evaluate separation of powers claims by applying a two-step test that first
inquires whether the action of one branch threatens to prevent another from
"accomplishing its constitutionally assigned functions" and then, when a
potential for disruption is found to exist, attempts to determine through a
balancing of interests whether the intrusion is justified.
169
The weighing
process thus assumes some degree of intrusion, 170 and attempts to define the
context of dispute with respect to the competing objectives and authorities of
the contending branches.
Although the Executive's claim of constitutional right to interdict EPA
administrative orders is couched in absolute terms, no constitutional provision
expressly authorizes such a broad power nor have courts found it a necessary
implication of any of the powers or duties assigned to the President.
171
Moreover, as has just been recounted, the long history of congressional control
of the administrative bureaucracy and the almost uniform gloss of approval
given it by the courts, belies such an expansive power. Thus, the claim of
constitutional authority must be, at best, a qualified one deriving from some
167
President Nixon raised the issue in the Nixon case, see pp. 45-46,
supra, but the Court chose not to resolve the justiciability issue on those
grounds.
168
See supra, pp. 10-13.
169
Nixon V. General Services Administration, 433 U.S. 425, 443 (1977).
170,
See Nixon V. GSA, id.; Commodity Futures Trading Commission V. Schor,
106 S.Ct. 3245, 3258, 3260 (1986).
171
See infra, pp. 60-64 for discussion of the "take care" and opinions
clauses.
CRS-51
165
damages.
Finally, the Court noted that while it would not join the Army as defendant,
Shell's interests in seeing that the Army pay its proportionate share of the
cleanup costs could be protected by the court in this case if Shell filed a
counterclaim, or by the court in a suit brought by the State of Colorado (as
166
co-trustee with the Army) in which the Army and Shell are co-defendants.
In sum, then, the test established by ICC and its progeny grants a court
jurisdiction to resolve an intra-branch controversy where the dispute is
concrete, involves issues which are traditionally justiciable, and Congress has
not barred the action. The decided cases have encompassed the gamut of
potential intra-branch litigants, including officers of the United States who
are removable at the pleasure of the President. No case has hinted at a
distinction between independent regulatory commissions on the one hand and
executive officers subject to at-will removal on the other. In view of this
current state of the law, EPA's statutory designation as the guardian of the
public's interest that federal agencies obey the national environmental
policy, and its empowerment to fulfill that duty, makes it appear likely that a
court would take jurisdiction of suit brought by EPA to enforce one of its
administrative orders against a sister agency.
B. EPA Administrative Orders and the Separation of Powers
While the justiciability litigation is analogous to and persuasive of the
administrative order situation, none of the court's opinions directly
165
Id. at 1083.
166
Id.
CRS-50
claims to have spent approximately $48,000,000 in
responding to release of hazardous chemicals at
the Arsenal. It is the Army that continues to
plan, in consultation with the Environmental
Protection Agency, a comprehensive solution to
the Arsenal contamination problem. It is the
Army that is the designated trustee for natural
resources at the Arsenal. If the Army were
joined as a defendant, the Army would in
actuality, 164 as well as in name, be suing
itself.
Viewed in this light, there could be no justiciable intra-branch controversy.
By statute, the Army is the trustee of the public for the natural resources at
the facility. As such, it has fiduciary obligation to the citizens of the
nation to see that the facility cleanup is completed and also to accept
responsibility, as it apparently had, for its share of the cleanup costs. To
join the Army as a defendant would, in actuality, have had it suing itself.
The Court explained:
Here, however, there is no inter-agency dispute
presented. The apparent paradox presented by the
Army being both a responsible party and a
plaintiff in this action arises because the Army
in the past committed acts which contaminated the
Arsenal but has since recognized the harm it
caused and is presently taking action to remedy
the problem. A "dispute" between the "new" Army
and the "old" Army cannot be ad judicated. There
is only one Army before this court. The Army is
the plaintiff and the designated trustee for
natural resources at the Arsenal. As such, it
cannot sue itself, even though it may be a liable
and responsible party under CERCLA secs. 107(a)
and 107(g), 42 U.S.C. secs. 9607(a) and 9607(g).
The case is not unlike a common comparative
negligence case where a defendant asserts that
the injured plaintiff's conduct caused some or
all of his own injury. Procedurally, the
plaintiff is not joined as a defendant; rather
the court apportions responsibility for the
164
Id. at 1082.
CRS-49
There could not be any issue between
the TVA and the FHA, both being the United
States, which this court could litigate or
adjudicate. Any difference between these
agencies would at most be interagency disputes
which are not subject to settlement by
adjudication.
The settlement of interagency
problems within the United States government is
not a judicial function but 161 rather an
administrative function.
Finally, the most recent decision in the area is illuminating for its
reasoned application of the ICC test to the factual context. United States V.
Shell Oil Co.
162
was a CERCLA cost-recovery action brought by the United
States. Shell moved to join the Army as a defendant, claiming, first, that if
it remained the sole defendant, the United States might saddle it with
liability that rightfully should be borne by the Army; and, second, that if
the Army wasn't joined, there could be an incomplete recovery of costs that
would injure the public's interest in a complete cleanup of the site. The
court denied Shells' motion, viewing it as a self-serving effort "to reposition
the parties to place the United States, as plaintiff, in the posture of suing
the Army and Shell, as defendants. 163 Explicitly adopting the test
established by ICC, Nixon, and United States V. FMC, the court first looked
"behind the names that symbolize the parties" and determined that in fact it
was the Army that was the plaintiff in the case.
When I look behind the "United States," the
denominated plaintiff in this case, I find the
Department of the Army. It is the Army that
161
204 .Supp. at 839.
162
605 F. Supp 1064 (D. Colo. 1985).
163
605 F.Supp at 1081.
CRS-48
justiciable.
155
On the other hand, some courts have held nonjusticiable suits between
Executive Branch entities where the governmental interest on both sides was
found to be the same. In an early case, Defense Supplies Corporation V. United
States Lines,
156
the court dismissed for lack of a case or controversy a
property damages claim against both United States Lines Co. and the United
States by the insurance subrogee of a shipper (Defense Supplies Corporation)
which was wholly owned by the United States. The court reasoned that the
dispute was "merely about the proper allocation of funds between different
parts of the government. 157 The court expressly avoided the question whether
such an action, if authorized by statute, would be justiciable.
158
In United States V. An Easement and Right of Way,
159
the Tennessee Valley
Authority brought a land condemnation action and attempted to join the Farmer's
Home Administration, the holder of a mortgage on the land, as a defendant. The
court, viewing the controversy as an intrabranch dispute over allocation of
public property resources,
160
denied the motion, stating,
155
694 F.2d at 810.
156
148 F.2d 311 (2d Cir. cert. denied, 326 U.S. 746 (1945).
157
148 F.2d at 313 note 5.
158
Id.
159
204 F.Supp. 837 (E.D. Tenn. 1962).
160
The court made clear its view of the nature of the dispute involved
when it later reasoned hypothetically that if FHA had foreclosed prior to the
action and had obtained a fee simple, no condemnation action could have been
filed "as the United States could not condemn lands belonging to the United
States, even though different agencies were claiming administrative rights to
the property. The fact that FHA's interest is a security interest rather than
a fee simple interest does not change the situation" 204 F.Supp at 839.
CRS-47
153
side of the defendants.
Finally, in United States V. Federal Maritime Commission, 154 the Antitrust
Division of the Justice Department brought suit to challenge the FMC's approval
of certain pooling agreements between shippers. The Antitrust Division had
argued before the Commission that the agreements violated the antitrust laws
but the Commission approved them, thereby exempting the shippers from the
requirements of the antitrust laws. In response to the intervenors' argument
that the article III "case or controversy" prerequisite for federal
jurisdiction was not met because the "United States is suing itself, " the
court, following the rationale of Nixon, held that the real parties in interest
were the Justice Department and the Commission and that the dispute over the
validity of the Commission's order is a matter courts normally resolve and
that the setting assured the kind of adversary confrontation that would allow
for a proper presentation of the conflicting points of view. The court
explained:
The Department of Justice is the authorized and
traditional advocate of antitrust policies in
agency litigation,
which policies are
implicated by the "public interest" standard of
section 15 of the Shipping Act, and the
Commission obviously has a role before this court
as an advocate of its own perception of the
public interest. See 28 U.S.C. 2348 (agency's
right to appear as a party). This dispute over
the validity of a Commission order raises issues
that courts traditionally resolve and the
setting assures the concrete adverseness on which
sharpened presentation of the issues is thought
to depend. The parties' controversy is
153 418 U.S. at 693, citing United States V. Marine Bankcorporation, 418
U.S. 602 (1974) and United States V. Connecticut National Bank, 418 U.S. 656 (1974).
154 694 F. 2d 793 (D.C. Cir. 1982).
CRS-46
In United States V. Nixon, 150 the Special Prosecutor sought to enforce a
subpoena duces tecum against President Nixon. The President argued before the
district court that "the Court lacked jurisdiction to issue the subpoena
because the matter was an intra-branch dispute between a subordinate and
superior officer of the Executive Branch and hence not subject to judicial
resolution. " The contention was renewed before the Supreme Court, with the
President further arguing that the dispute was essentially a jurisdictional one
within the Executive Branch which was analogous to a dispute between
congressional committees. As such, it was a matter in which the President
should be the final arbiter since it involved the preservation of the
confidentiality of presidential communications. 151 The Court ruled that
although the dispute was between officials of the same branch of government,
the issues before it -- the production or nonproduction of specified evidence
sought by one official of the Executive branch within the scope of his express
authority and resisted by the President on the ground of his duty to preserve
the confidentiality of communications of the Chief Executive -- were "of a type
which are traditionally justiciable 152 and were raised in a setting that
assured "concrete adverseness" of the parties. It might also be noted that the
Nixon Court cited approvingly two cases decided just one month before in which
it maintained jurisdiction over enforcement actions brought by the Antitrust
Division of the Justice Department where the Comptroller of the Currency, an
independent officer in the Treasury Department, exercised his statutory
authority to approve bank mergers and participated in the litigation on the
150
418 U.S. 683 (1974).
151
418 U.S. 692-93.
152
418 U.S. at 697 (quoting U.S. V. ICC, supra, 337 U.S. at 430.
CRS-45
145
an independent executive officer. Thus in United States V. ICC,
the United
States, as a shipper, filed a complaint with the ICC against railroads claiming
that the rates charged were unreasonable, unjustly discriminatory, and
violative of the Interstate Commerce Act. The ICC found the conduct legal and
dismissed the United States' complaint. The United States sought review of the
order in a federal district court. The court dismissed the case on the theory
that the government could not sue itself. The Supreme Court reversed, finding
that although the government was nominally suing itself, the basic controversy
was whether the railroads had illegally exacted money from the United States.
The United States, as a shipper, was actually aggrieved by the independent
regulatory agency's decision and order. The Court found the controversy to be
146
of a type "traditionally justiciable.
The Court has since followed ICC in a variety of contexts. In Udall V.
Federal Power Commission 147 and Secretary of Agriculture V. United States
148
the Departments of Interior and Agriculture, respectively, sought review of
adverse administrative orders after participating in the administrative
proceedings of independent regulatory agencies. While neither decision
directly addressed the justiciability question, both pointedly noted that
Congress expressly authorized governmental intervention and participation in
149
the administrative proceedings.
145
337 U.S. 426 (1949).
146
337 U.S. at 430-31.
147
387 U.S. 428 (1966).
148
347 U.S. 645 (1954).
149
Udall, 387 U.S. at 433; Secretary of Agriculture, 347 U.S. at 647.
CRS-44
before them is "justiciable," that is, a genuine controversy between the
parties to the suit, and that the controversy is appropriate for judicial
resolution.
140
There must be a concrete adversity of interest between the
opposing parties. The court cannot entertain a collusive action or render an
advisory opinion.
141
The Supreme Court has developed a fact-specific test to determine
justiciability when the United States appears on both sides of a dispute.
Courts are directed to look behind the names of the parties to determine the
real party in interest. "The mere assertion of a claim of an 'intra-branch
dispute,' without more, has never operated to defeat federal jurisdiction;
justiciability does not depend upon a surfaces inquiry. 142 "Courts must look
behind the names that symbolize the parties to determine whether a justiciable
case or controversy is presented. 143 Therefore, even though a case could be
denominated United States V. United States, if "the case involves controversies
of a type that are traditionally justiciable," the setting of the dispute
assures concrete adverseness, and is not barred by statute, the case may be
decided by an article III court.
144
In applying this test the courts have found justiciable intra-branch suits
between cabinet agencies and so-called independent regulatory agencies, cabinet
agencies and subordinate officials of other departments, and the President and
140
Baker V. Carr, 369 U.S. 186, 217 (1962).
141
Muskrat V. United States, 219 U.S. 346 (1911).
142
United States V. Nixon, 418 U.S. 683, 693 (1974).
143
United States V. ICC, 337 U.S. 426, 430 (1949).
144
United States V. Nixon, 418 U.S. at 697; United States V. ICC, 337
U.S. at 430; United States V. Federal Maritime Commission, 694 F.2d 793, 810
(D.C. Cir. 1982).
CRS-43
particularly that involving closely contested questions between the political
branches, is often a speculative venture, the foregoing review of relevant case
law and administrative history indicates that these waters are not totally
uncharted. Those guides allow us to engage in at least an informed analysis of
the constitutionality of EPA's administrative order authority. Arguably, the
unitary executive theory receives its severest test in this situation since it
involves presidential-agency relations at perhaps their most intimate point.
Thus, if the Executive cannot sustain its claim of ultimate power here, it is
difficult to see where it can be successful.
A. Justiciability of EPA Suits Against Sister Agencies
An initial threshold question raised by the Justice Department is its
position with respect to the justiciability of EPA enforcement actions against
other agencies, which the Department views as closely linked to EPA's authority
to issue administrative orders: "Indeed, the question of the constitutionality
of administrative order authority is a variation on the question of the
constitutionality of EPA's authority to bring an enforcement action against a
federal agency in court. Unilateral administrative orders, like lawsuits, are
enforcement tools that interfere with the management of the Executive Branch by
the President. 1139 The Department's position, however, would appear to be
without substantial relevant case law support.
Where two Executive Branch agencies are on opposing sides of a lawsuit, a
court must assure itself that it is not being asked to decide a question that
is more properly addressed to the branch of government of which the agencies
are a part. Thus in dealing with cases in which the government is apparently
"suing itself," the court's have had to satisfy themselves that the controversy
139
Habicht Testimony, supra note 8.
CRS-42
notification to the agency involved. The government claimed that the
Comptroller's ability to alter the timing of the procurement violated the
separation doctrine, relying on Chadha and Bowsher. The appeals court rejected
the contention. The court's opinion is important for present purposes for its
mode of analysis. Adopting the functionalist approach of Nixon V. GSA and
Schor, the court reviewed the entire statutory scheme and the congressional
intent behind it and found that the role intended for the Comptroller was one
of influence rather than control of the agency procurement process in order to
137
remedy the ills of waste, inefficiency and corruption.
Even conceding that
the Comptroller, without substantive authority in the process, would affect the
way executive agency decisions would be made, this potential disruption of the
proper balance of power was held entirely justified when a balancing of
legislative and executive interests is weighed. Determinative in the court's
view was the short duration of most delays, the lack of authority of the
Comptroller to extend a stay any longer than necessary to decide a bid protest,
and the ability of the executive to override a stay. "In light of these
factors, we simply do not believe that the executive has shown that CICA
creates any significant impediments to the President's execution of the law.
In fact, we are persuaded that 'any intrusion' permitted by CICA upon the
138
executive branch can only be termed de minimis," citing Schor.
IV. Assessing the Impact of EPA's Order Authority on the President's
Constitutional Role: A Separation of Powers Analysis
While predicting the outcome of constitutional litigation, and
137
Compare City of Alexandria V. United States, 737 F. 2d 1022 (Fed.
Cir. 1984) (successful congressional pressure to alter procurement process not
tantamount to legislative veto).
138
809 F.2d at 997.
CRS-41
privilege. As these acts of the Archivist have been held to be properly within
133
has discretion, the DOJ/OLC opinion cannot be controlling.
The court
concluded that the memorandum was "not compelled by the Constitution" and that
it "thwarted the legislative intent of the Act and the regulations promulgated
pursuant to the Act. 134 The court ordered the Archivist not comply with the
Justice Department directive.
Finally, the Third Circuit's decision in Ameron, Inc. V. U.S. Corps of
135
Army Engineers,
upholding the constitutionality of the Comptroller
General's role in administering the provisions of the Competition in
Contracting Act (CICA) 136 is noteworthy. In that case the Justice Department
ordered the agencies of government to refuse to comply with those provisions of
the Act which allowed disappointed bidders for government contracts to appeal
to the Comptroller General and directed the affected agencies to stay the
procurement process pending receipt of the Comptroller's recommendation on the
merits of the appeal. The statute provided that an agency could go ahead with
the procurement during the period of the Comptroller's consideration if it
filed a claim of necessity; and the Comptroller could either lengthen or
shorten the statutorily prescribed period of his consideration with
133
655 F. Supp. at 322
134
Id. Congress' ability to insulate subordinate officials'
discretionary actions from presidential interference was recognized as early as
1808, see Gilchrist V. Collector of Customs, 10. F. Cas. 355, 356, 363
(C.C.D.S.C. 1808) (No. 5, 420). See also United States ex rel. Accardi V.
Shaughnessy, 374 U.S. 260, 267-68 (1954) ("[i]f the word discretion means
anything in a statutory or administrative grant of power, it means that the
recipient must exercise his authority according to his own understanding and
conscience. ").
135
809 F.2d 979 (3d Cir 1986).
136 31 U.S.C. 3551-3556 (Suppl III 1985).
CRS-40
130
September.
The ability of the Congress to insulate the decisions of subordinate
executive officials subject to at will removal by the President from
presidential interference was the focus of Public Citizen V. Burke.
131
That
case involved the Presidential Recordings and Materials Prevention Act,
132
and
regulations promulgated pursuant to its provisions, which govern public access
to President Nixon's papers. Regulations issued by the Archivist, tracking the
statutory provisions, provided that any claims of executive privilege by the
former president with respect to any of the materials must be made to the
Archivist, whose decision could be appealed to the courts. The Justice
Department issued a memorandum to the Archivist opining that he is required to
honor any assertions of executive privilege made by former President Nixon even
if the incumbent President either "(a) would not have personally invoked the
privilege under the circumstances or (b) does not believe the documents fall
within the scope of the privilege." The Justice Department's theory was that
the presumptive nature of the privilege was inconsistent with the Archivist's
administrative authority to determine that no privilege exists. The court
disagreed. It found the Justice Department opinion merely advisory since
"under the regulatory scheme, [the Archivist] has the discretion to consider
and either accept or reject former President Nixon's claims of executive
130
Some indication that the Supreme Court may rule that the Act is
constitutional is its decision in Young V. U.S. ex rel. Vuitton et Fils, 107 S.
Ct. 2124 (1907), holding, inter alia, that district courts have authority to
appoint private attorneys to prosecute criminal contempt of court actions.
Interestingly, the Justice Department's brief in the case cited the
Independent Counsel statute approvingly as an example of a proper exercise of
congressional authority in an analogous situation.
131
655 F. Supp. 318 (D.D.C. 1987).
132
Pub. L. 93-526, 44 U.S.C. 2111 (1982).
CRS-39
requires a degree of independence for the proper execution of his tasks,
citing, among other authorities, Humphrey's Executor. Finally, the court
rejected the general separation of powers contention, relying heavily on the
Supreme Court's acceptance of the Watergate Special Prosecutor in U.S. V.
Nixon
128
and "common sense and the inherent necessities of governmental
coordination." The court concluded:
The Independent Counsel provisions of the Ethics in Government
Act represent Congress's measured response to the recurrent question
of how to enforce the laws of the United States when they are
violated by high government officials. Congress chose to use its
authority, well settled under the Constitution and Supreme Court
precedent, to create a mechanism to guarantee the integrity and
independence of criminal investigations in matters where the
Department of Justice has real or apparent conflicts of interest. By
carefully assigning the functions necessary for the accomplishment of
its purpose, it has constitutionally addressed an important national
need. For the United States, the Act represents a landmark effort to
instill public confidence in the fair and ethical behavior of public
officials.
The court's analysis reflects the pragmatic, functional separation review
accorded in the agency insulation cases noted above. 129 It is likely that this
case, or one of the investigations or prosecutions being conducted by
Independent Counsels, will reach the Supreme Court for resolution quickly.
This case was set for expedited hearing before an appeals court panel in mid-
128
418 U.S. 683 (1973).
129
In a similar ruling in In re Theodore Olson, 818 F.2d 34 (D.C. Cir,
Ind. Counsel Div.), the Special Division upheld the constitutionality of the
Ethics Act as consistent with the separation doctrine and Congress powers
under the Necessary and Proper Clause. It rejected any substantive thrust to
the "take care" clause, holding that it does not require the President or his
delegate to execute the laws and thus Congress may empower some other officer
to execute the laws as long as there is removal for impropriety by either the
President or his delegate.
CRS-38
President's unrestricted power to remove the most important of his subordinates
in their most important duties; and (3) the insulation of Independent Counsel
from the presidential control intrudes upon the Executive's exclusive authority
over the enforcement of the law and thus violates the principles of separation
of powers.
Initial attempts to challenge the statute by Michael Deaver and Oliver
North were dismissed on procedural grounds, i.e., the courts found that the
constitutional challenges were not timely and that the "extraordinary" request
for a court to halt an ongoing criminal investigation before anyone has been
indicted would not be granted. But both courts recognized that one
consideration in dismissing the challenges at that time and not granting the
injunctive relief was the failure of the plaintiff's to show "a likelihood of
ultimate success in the merits" of the claims. 125 However, on July 20, 1987,
in a case deemed ripe for review, a district court upheld the constitutionality
of the statute in all respects. 126 The appointment mechanism was found
properly authorized under the Appointments Clause 127 which allows appointments
of inferior officers by the courts. Since the Independent Counsel are
appointed for a single task for a limited period it held they are clearly
inferior officers encompassed by the clause. In upholding the limited
removability of the prosecutors, the court recognized the line of Supreme Court
precedent approving insulation of officers from the threat of at will
presidential termination where Congress has determined that the officer
125
Deaver V. Seymour, 656 F. Supp. 900 (D.D.C. 1987), cert. denied,
USLW
(10/5/87); North V. Walsh, 656 F. Supp. 414 (D.D.C. 1987).
126
In re Sealed Case, Misc. Nos. 87-0197, - 0205, -0215 (D.D.C., per
Robinson, J.).
127
U.S. Const., article II, section 2, cl. 2.
CRS-37
An attack on the similar authority of the Securities Exchange Commission was
rejected by a district court on the ground that the agencies authority did not
1.120
"interfere[ with the power of the President to enforce the laws
No court
that has reached the merits of the issue has seriously entertained the
121
122
contention.
However, litigation efforts continue unabated,
and attempts
to secure Supreme Court review are likely.
The Iran/Contra controversy has brought to the fore the issue of Congress'
power to vest executive officers who are not appointed or removable by the
President with important discretionary duties. Under the Ethics in Government
123
Act of 1978,
Independent Counsel may be appointed upon the request of the
Attorney General by a special three-judge division of the U.S. Court of Appeals
for the District of Columbia to investigate and prosecute certain specified
high ranking government officials. Independent Counsel may be removed by the
Attorney General but only for "good cause". Targets of appointed Independent
Counsel, and now the Justice Department, 124 have challenged the
constitutionality of the statute on the grounds that (1) the appointment
mechanism is defective in that such executive officers must be appointed by
the President or at least by one of his appointees; (2) the provision for
removal by the Attorney General only for good cause infringes on the
120
SEC V. Warner, 652 F. Supp. 647, 649 (S.D. Fla. 1987).
121 See cases cited in note 16 supra.
122 See, e.g., "SEC Civil Authority Challenged," Nat'1 L.J., June 15,
1987 at 3 (describing appeal pending before Tenth Circuit in SEC V. Blinder,
Robinson & Co., Inc., No. 86-2319 raising the issue).
123
Pub. L. 95-521, title VI, as amended by Pub. L. 97-409, 28 U.S.C.
secs. 591-598, and 49.
124
See note 7, supra.
CRS-36
and advocacy in legal journals,
116
thus far has received summary treatment by
the courts and strong rebuttals in the legal literature. 117
In FTC V. American
Cellular, Inc.,
118
the Ninth Circuit Court of Appeals, relying heavily on the
Supreme Court's implicit reaffirmation of Humphrey's Executor in Bowsher V.
Synar, dismissed a challenge to the FTC's prosecutorial authority.
We find no case purporting to limit or overrule Humphrey's
Executor. On the contrary, we note the continuing vitality of that
authority as recently shown in Bowsher V. Synar, -- U.S. -, 106 S.
Ct. 3181, 92 L. Ed. 2d 583 (1986). Bowsher held invalid portions of
the Balanced Budget and Emergency Deficit Control Act of 1985 (the
Gramm-Rudman-Hollings Act) which vested the Comptroller General with
the executive function of initiating cuts in the federal budget.
Although the Comptroller General is appointed by the President with
the advice and consent of the Senate, pursuant to the Appointment
Clause of the Constitution, his removal is not by the President, but
by a joint resolution of Congress or impeachment. Id. at 3185.
Citing Humphrey's Executor, the Bowsher court reasoned that the
Comptroller General's powers under the Gramm-Rudman-Hollings Act
violated the doctrine of separation of powers, because Congress could
not reserve for itself the power of removal of an officer charged
with the execution of the laws except by impeachment. Id. at 3188.
We believe implicit in this holding is the proposition that "officers
of the United States," including FTC Commissioners, who are appointed
by the President with the advice and consent of the Senate, and are
subject to Congressional removal 119 only by impeachment, may engage in
the enforcement of federal law.
116
See, e.g., Miller, Independent Agencies, 1986 S. Ct. Rev. 41 (1986);
Note, Incorporation of Independent Agencies into the Executive Branch, 94 Yale
L.J. 1766 (1965); Scalia, Historical Anomalies in Administrative Law, 1985
Yearbook, Supreme Court Historical Society 106-110; Olson, Founders Wouldn't
Endorse Plural Presidency, Legal Times, April 27, 1987 at 11.
117
Froomkin, supra note 48; Steele and Bowman, The Constitutionality of
Independent Regulatory Agencies Under the Necessary and Proper Clause: The
Case of the Federal Election Commission, 4 Yale J. on Reg. 363 (1987); Hardie,
The Independent Agency after Bowsher V. Synar -- Alive and Kicking, 40 Vand. L.
Rev. 903 (1987); Verkuil, The Status of Independent Agencies After Bowsher V.
Synar, 1986 Duke L.J. 779; Sommer, Independent Agencies as Article One
Tribunals: Foundations of a Theory of Agency Independence, 38 Ad. L. Rev. 83
(1986); Tiefer, The Constitutionality of Independent Officers as Checks on
Abuses of Executive Power, 63 B.U.L. Rev. 59 (1983).
118
810 F.2d 1511 (9th Cir. 1987).
119
810 F.2d at 1513-14.
CRS-35
aggrandizement is seen as essentially irrelevant. Congress' plenary authority
to create agencies and vest them with the necessary executive, legislative and
judicial tools to carry out their assigned tasks unquestionably "subtracts"
from each actors' powers. That is accepted as a given fact of life in the
modern administrative state. The key question in disputes over agency
arrangements is whether so much has been taken from the functioning of one
constitutional actor as to impair its core function. Thus functional analysis
comes into play. The Court sees its task in these cases as assuring itself
that the essential lines of authority from the constitutional actors to the
agencies remain intact. If Congress can repeal or revise the statute,
appropriate or withhold needed resources, and engage in effective oversight; if
the President can appoint, consult and influence agency officials; and the
courts can engage in meaningful review, the Court will be satisfied that there
has been no constitutional disruption. The review of impact on the respective
relationships is thus not concerned with aggrandizement but with maintaining
the relative functional balance between the constitutional actors and the
agencies. In this light, then, recent judicial rulings respecting
congressional attempts to insulate a variety of decisions and decisionmakers
from presidential control in varying degrees may be seen as consistent
applications of this understanding of the theory and application of the
separation doctrine.
Direct attacks on the continued legitimacy of the independent regulatory
agency, encouraged by statements of the Attorney General, 114 court
115
dicta,
114
See, supra, note 4.
115
See discussion of Synar V. United States, supra, notes 88-94 and
accompanying text.
CRS-34
challenged arrangement will have on the balance of power between the named
constitutional actors and the performance of the core functions of each. In
other words, a far broader, more lenient review seems to be accorded in agency
specific situations.
One possible explanation for this dichotomous standard goes far in
rationalizing past decisions and lending confidence in predicting the outcome
of litigation involving a variety of congressional controls of agency
decisionmaking. Where the constitutional actors are in direct opposition it
would appear that the Court views the situation as a zero sum game: whether
it chooses to validate or deny the arrangement under scrutiny, one (or two) of
the actors has a degree of its power subtracted, the other added to. Where the
Court feels impelled to make the decision, 113 the use of the formalist approach
appears essentially tactical. A formal approach, while it may limit
flexibility in the future in the area concerned, has the advantage of
simplifying planning, e.g., Congress may not appoint or discharge officers of
the United States (Buckley, Bowsher), or take actions which affect the rights
and duties of persons outside the legislative branch without complying with the
constitutionally mandated legislative process (Chadha). Moreover, the
rationale propounded by the Court in such cases is cast to march inexorably
from the words or spirit of the Constitution, thus diminishing the sense that
it is the judges themselves, rather than the law, that is responsible for the
decision. Such an approach thereby encourages acceptance and discourages
retaliation.
But where the question of agency functioning is involved, the issue of
113
C.f., Goldwater V. Carter, 444 U.S. 996 (1979), where a split court,
utilizing a number of canons of judicial restraint, declined to decide whether
the President could act alone to terminate a treaty.
CRS-33
Bowsher may be read to stand for the unexceptionable proposition that Congress
may not fire officers of the United States and nothing more. If so, then
no
threat to the constitutionality of independent agency remains.
A third, and perhaps more important, lesson to be derived from Schor is
that there is a rational basis for reconciling the Court's seemingly
contradictory lines of separation of powers decisions. Those rulings juxtapose
111
the constitutional structuralism of Myers, Buckley, Northern Pipeline,
Chadha, and Bowsher with the functional analysis of Humphrey's Executor, Nixon
V. GSA, Weiner, Thomas V. Union Carbide Agricultural Products Co., 112 and
Schor. Justice O'Connor's opinion clearly suggests the distinction that the
former line of cases, each involving direct confrontations between the key
constitutional actors -- the President, Congress, or the Judiciary -- raised
questions of congressional aggrandizement of power at the expense of a
coordinate branch, while the latter line only indirectly involve the key actors
through the administrative entities through which the will of the political
actors is exercised. In both lines of cases the separation of powers analysis
is generally couched in terms of the impact the challenged arrangement has on
the balance of power among the three named heads of our government. But when
the President, Congress or the Judiciary are arrayed against one another, Court
analysis becomes rigid, tending to center on one dominant feature of the
relationship. When an agency is involved, however, the analysis is more far-
reaching, delving into the whole range of relationships between and among the
agency, the President, Congress, and the Judiciary, and the impact the
111
Northern Pipeline Constr. Co. V. Marathon Pipe Line Co.,
458 U.S. 568
(1985). See note 95, supra.
112
473 U.S. 568 (1985).
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judiciary. 107 In this case the Court held that "any intrusion. can only be
deemed
de minimis. 108 The congressional addition to the FTC's adjudicatory
powers made a departure from "the traditional agency model" only with respect
to its jurisdiction over common law counterclaims, thus giving it "little
practical reason to find that this single deviation from the agency model is
fatal to the congressional scheme. 109 Finally, the Court took note of its
decision that day in Bowsher, distinguishing it as follows:
Unlike Bowsher, this case raises no question of the aggrandizement
of congressional power at the expense of a coordinate branch.
Instead, the separation of powers question presented in this case is
whether Congress impermissibly undermined, without appreciable
expansion of its own powers, the role of the Judicial Branch. In any
case, we have, consistent with Bowsher, looked to a number of factors
in evaluating the extent to which the congressional scheme endangers
the separation of powers principles under the circumstances
presented, but have found no genuine threat to be present in this
110
case.
Schor, then, appears to contain a number of possible lessons. First, the
gentle, even flexible treatment of the "traditional [independent] agency
model", and the deference to congressional necessities in establishing workable
administrative schemes to carry out its article I powers, does not bespeak an
imminent High Court threat to the viability of independent agencies. Second,
the utilization of a "de minimis" standard in a separation of powers analysis
on the same day that the Court had issued an opinion that is highly
formalistic in tone and structure, may indicate that we are to look at what
Bowsher did rather than what it said to understand its real import. That is,
107
Id.
108
Id. at 3260.
109
Id. at 3258.
110
Id. at 3261.
CRS-31
here
104
The Court then went on to quote approvingly from Humphrey's Executor
and cited the later removal case of Weiner V. United States. It would seem,
then, that if the Court in fact entertained serious doubts about Congress'
ability to insulate members of independent agencies from at-will removal,
basing its decision on Humphrey's Executor's separation rationale did not
signal it.
The Court may have given further strong support for the constitutionality
of agency independence in Commodity Futures Trading Commission V. Schor, 105
decided the same day as Bowsher V. Synar. In Schor the question before the
Court was whether the grant of statutory authority to the Commission -- an
independent regulatory agency -- to entertain state law counterclaims in
separation proceedings violated article III of the Constitution. The Court
held it did not, in language and reasoning that appears to lend strong implicit
support to the independent agency form. It rejected the adoption of
"formalistic and unbending rules" in determining whether the congressional
assignment of article III adjudicatory business to a non-article III tribunal
raised separation of powers problems. "Although such rules might lend a
degree of coherence to this area of law, they also might unduly constrict
Congress' ability to take needed and innovative action pursuant to its article
106
I powers.
The Court noted that it weighed a variety of factors in coming
to its conclusion, "with an eye to the practical effect that the congressional
action will have on the constitutionally assigned role of the federal
104
Bowsher V. Synar, supra, 106 S. Ct. 3188 note 4.
105
106 S. Ct. 3245 (1986).
106
106 S. Ct. at 3258.
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It would appear, though, that the Synar dictum represents, at least for
the moment, the high water mark of efforts to nullify Humphrey's Executor and
undermine the legitimacy of independent agencies. Since Synar, the Supreme
Court has lent its weight to the continued legitimacy of independent regulatory
commissions in two rulings, and a series of lower court decisions have
uniformly dismissed direct attacks on the lawfulness of these entities. The
Supreme Court and a lower court have also provided authority for wider
congressional use of for-cause removal requirements to insulate executive
officers from presidential interference; and in one case a court condemned the
attempted interference by the Justice Department of the exercise of
discretionary authority vested by law in a subordinate agency official
removable at the pleasure of the President. A brief review of these most
recent judicial rulings indicates a uniform rejection of the asserted basis for
a unitary executive.
The potential breadth of the Solicitor General's arguments in his brief in
Bowsher V. Synar, and particularly their negative effect on independent
officers and agencies, caused such concern (before they were effectively
disavowed) that, as the Supreme Court's transcript of the oral argument
reflects, Justice 0' Connor exclaimed to the Solicitor General, "I'll confess,
you scared me. 103 The Court's majority opinion quickly reassured that the
issue at question in the case did not cast doubt on the status of the
independent agencies: "Appellants therefore are wide of the mark in arguing
that an affirmance in this case requires casting doubt on the status of
'independent' agencies because no issues involving such agencies are presented
103
Transcript of Argument, Bowsher V. Synar, S. Ct., April 23, 1986, at
51.
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Supreme Court's 1983 decision in INS V. Chadha. 1199 The court commented that
"Assuredly some of the language of the majority opinion in Chadha does not lie
comfortably beside the central revelation of Humphrey's Executor that an
officer such as a Federal Trade Commissioner 'occupies no place in the
executive department', and that an agency which exercises only 'quasi-
legislative or quasi-judicial powers' is 'an agency of the legislative or
judicial departments of the government. 100
The Synar court, however, conceded that "The Supreme Court's signals are
not sufficiently clear
to justify our disregarding the rationale of
Humphrey's Executor, 101 and proceeded with an analysis of the duties conferred
on the Comptroller General which led it to its ultimately narrow conclusion
that executive powers could not be exercised by officers removable by Congress.
But the questions raised by the court's obiter dicta were carried forward to
the Supreme Court in the Justice Department's brief in support of the lower
court's ruling.
102
99
Id. The opinion approvingly cites the Strauss article, supra note 25.
However, the substance and style of the opinion's argument tracks closely the
position articulated by Justice (then Judge) Antonin Scalia in an article
published in 1985. See, Scalia, Historical Anomalies in Administrative Law,
1985 Yearbook, Supreme Court Historical Society, 106-110. Scalia was a member
of the three-judge Synar panel.
100 Id. at 1399. The court here referenced the explanation in Chadha
that the fact that Executive Branch officers perform what might be
characterized as "quasi-legislative" or "quasi-judicial" functions does not
mean that they are exercising something other than executive power within the
meaning of article II. See Chadha, 462 U.S. at 953 n. 16.
101
Id.
102 See Brief for the United States, Bowsher V. Synar, Nos. 85-1377, 85-
1378 and 85-1379 (April 1986) at 44-46 (arguing that apart from the defect of
congressional removal, the Comptroller General's "duties
are
so
central
to
the administration of the Executive Branch and the responsibilities of the
President that they may be performed only by the President or by an Officer of
the United States serving at the pleasure of the President."
CRS-28
Rudman-Hollings Act. In an unsigned per curiam opinion the court held that by
vesting responsibility for executing the Act in the hands of the Comptroller
General -- an officer who is subject to removal only by Congress itself --
Congress had effectively retained control over the execution of the law and
thereby unconstitutionally intruded into the executive function. This narrow
holding, however, was prefaced by a lengthy obiter dicta attack on Humphrey's
Executor and the continued viability of independent agencies. The court
characterized Humphrey's Executor as an aberration of New Deal jurisprudence
and administrative theory that "is stamped with some of the political science
preconceptions characteristic of its era and not of the present day," and
questioned the efficacy of the concept of independent agencies:
It is not as obvious today as it seemed in the 1930's that there can
be such things as genuinely "independent" regulatory agencies, bodies
of impartial experts whose independence from the President does not
entail correspondingly greater dependence upon the Committees of
Congress to which they are then immediately accountable; or, indeed,
that the decisions of such agencies so clearly involve scientific
judgment rather than political choice that is even theoretically
desirable to insulate them from the democratic process. Moreover,
"quasi-legislative" and "quasi-judicial" functions can no longer be
regarded as extraordinary or even unusual activities of executive
agencies.
97
The court then questioned whether Humphrey's Executor was ever
reconcilable with the separation doctrine. "It has in any event always been
difficult to reconcile Humphrey's Executor's 'headless fourth branch' with a
98
constitutional text and tradition establishing three branches of government'
It then noted with approval that "[s]ome knowledgeable observers
think that
abandonment of the Humphrey's Executor analysis has been presaged by the
97
626 F. 2d at 1398.
98
Id.
CRS-27
meant to be "hermetically" sealed from one another, it insisted that "the
powers delegated to the three Branches are functionally identifiable. When any
Branch acts, it is presumptively exercising the power the Constitution
delegated to it. 1194 Thus express constitutional provisions providing for the
involvement by one branch in the affairs of another are meant to be exclusive
95
and bar such involvement where it is not affirmatively authorized.
For some, including the Justice Department, the meaning of the
legislative veto case was apparent: the strict view of the separation of
powers enunciated by Chadha was incompatible with the rationale and result of
Humphrey's Executor and thus signalled a return to the expansive view of
Executive power contained in Myers. As a consequence, the focus of
constitutional removal power with respect to all executive officials must
return to the President and the legitimacy of agency independence withdrawn.
This view was pressed in a variety of litigation contexts and, for the first
96
time, received a hospitable judicial reception in Synar V. United States.
There a three-judge district court dealt with a challenge to the
constitutionality of the triggering mechanism of the Balanced Budget and
Emergency Deficit Control Act of 1985, more popularly known as the Gramm-
94
Id.
95
Id. at 955-56. See also, Northern Pipeline Construction Co. V.
Marathon Pipeline Co., 458 U.S. 50 (1982), where the Court also took a
compartmentalized view of the separation doctrine. There the majority rejected
as unconstitutional the creation by Congress of special bankruptcy judges that
are not part of the judicial branch as created by article III. These judges
had powers similar to those of judges in state courts generally, and their
decisions were reviewable in federal courts. However, they did not have
article III tenure and salary protection. The Court's opinion centered on an
attempt to classify the kinds of decisions that were inherently judicial and,
with a few exceptions provided for in the Constitution, agreed that
adjudicatory decisions could only be rendered by traditional article III courts.
96
626 F. Supp. 1374 (D.D.C. 1986).
CRS-26
The second major decision seen as buttressing a hierarchical view of the
executive is INS V. Chadha, 91 where the Supreme Court rejected the legislative
veto as a violation of the constitutionally prescribed process for legislative
action. It reasoned that since the exercise of the legislative veto is
essentially legislative in purpose, it is subject to the article I requirements
of bicameral passage and presentment to the President. The majority argued
that the "hydraulic pressure inherent within each of the separate Branches to
exceed the outer limits of its power, even to accomplish desirable objectives,
must
be
resisted. 1192 The Court, taking a formalistic view of the separation
doctrine, emphasized the separateness of the legislative, executive, and
judicial powers by insisting that each branch of government "confine itself to
its assigned responsibility. 1193 While conceding that the branches were not
policymaking the use of E.O. 12,291 to create delays and to impose
substantive changes raises some serious constitutional concerns. " The court
concluded that OMB's use of its review powers to "withhold approval until the
acceptance of certain content in the promulgation of any new EPA regulation,
thereby encroaching upon the independence and expertise of EPA" was
"incompatible with the will of Congress and cannot be sustained as a valid
exercise of the President's Article II powers." Environmental Defense Fund V.
Thomas, 627 F. Supp. 566, 570 (D.D.C. 1986). But while finding that OMB caused
the delay, the court did not reach the constitutional issue. It did declare,
however, "that further review by OMB which creates any delay in meeting the
June 30, 1986 deadline is unreasonable and unacceptable." Id. at 571. In a
second case, Public Citizen Health Research Group V. Tyson, 796 F. 2d 1499
(D.C. Cir. 1986), the question of the constitutionality of the E.O. 12,291
review process was directly raised by the petitioners and congressional amici.
But the court's finding that the agency had "not accumulated substantial
evidence to support its decision" prevented it from reaching the issue which it
characterized as "present[ing] difficult constitutional questions concerning
the executive's proper role in administrative proceedings and the appropriate
scope of delegated power from Congress to certain executive agencies." Id. at
1507.
91 462 U.S. 919 (1983).
92 462 U.S. at 951.
93
Id. at 951.
CRS-25
executive policymaking is derived from the Constitution; the
desirability of such control is demonstrable from the practical
realities of administrative rulemaking. Regulations such as those
involved here demand a careful weighing of cost, environmental, and
energy considerations. They also have broad implications for
national economic policy. Our form of government simply could not
function effectively or rationally if key executive policymakers were
isolated from each other and from the Chief Executive. Single
mission agencies do not always have the answers to complex regulatory
problems. An overworked administrator exposed on a 24-hour basis to
a dedicated but zealous staff needs to know the arguments and 87 ideas
of policymakers in other agencies as well as the White House.
The court's ruling has been a principal basis of support for the centralized
rulemaking review system established by E.O.'s 12,291 and 12,498. 88
Critics of the Administration's regulatory review process claim that it
has the potential for displacing legal authority that Congress has expressly
delegated to executive agencies, imposing criteria for the formulation of
regulations that are contrary to those intended by Congress, and unduly
delaying the promulgation of proposed agency rules in order to induce
substantive changes. 89 There have been few court decisions on these issues
thus far. None have reached the question of the constitutionality of the
President's claim of power to interdict the rulemaking process. 90
87 657 F. 2d at 405-06.
88 See, e.g., Strauss and Sunstein, The Role of the President and OMB in
Informal Rulemaking, 38 Ad. L. Rev. 181 (1986); DeMuth and Ginsburg, White
House Review of Agency Rulemaking, 99 Harv. L. Rev. 1075 (1986).
89 Rosenberg, Beyond the Limits of Executive Power: Presidential Control
of Agency Rulemaking Under E.O. 12,291, 80 Mich. L. Rev. 193 (1981); Olson, The
Quiet Shift of Power: OMB Supervision of Environmental Protection Agency
Rulemaking Under E.O. 12,291, 4 Va. J. Nat. Res. 1 (1984); Rosenfeld,
Presidential Policy Management of Agency Rules Under Reagan Order 12,498, 38
Ad. L. Rev. 63 (1986); McGarrity, Presidential Control of Regulatory Agency
Decisionmaking, 36 Am. U. L. Rev. 443, 454-463 (1987); Houck, President X and
the New (Approved) Decisionmaking, 36 Am. U. L. Rev. 535 (1987).
90
In one case, a district court ruling on a challenge to OMB review of
EPA regulations noted that while a "certain degree of deference must be given
to the authority of the President to control and supervise executive
CRS-24
States, 295 U.S. 602 (1935)
84
III. Recent Litigation Trends
The Reagan Administration and other supporters of the concept of a unitary
executive
85
have found support for their initiatives toward centralization in
86
several judicial rulings since 1981. The first, Sierra Club V. Costle,
adopted an expansive view of the President's article II authority in the
context of a contested informal rulemaking proceeding. There the validity of
the rulemaking was challenged on the ground, inter alia, of improper
presidential intercession after the close of the public comment period. In
rejecting the contention, the Court of Appeals for the District of Columbia
Circuit emphatically enunciated the broadest view of executive power:
The court recognizes the basic need of the President and his
White House staff to monitor the consistency to executive agency
regulations with Administration policy. He and his White House
advisers surely must be briefed fully and frequently about rules in
the making, and their contributions to policymaking considered. The
executive power under our Constitution, after all, is not shared --
it rests exclusively with the President. The idea of a "plural
executive," or a President with a council of state, was considered
and rejected by the Constitutional Convention. Instead, the Founders
chose to risk the potential for tyranny inherent in placing power in
one person, in order to gain the advantages of accountability fixed
on a single source. To ensure the President's control and
supervision over the Executive Branch, the Constitution -- and its
judicial gloss -- vests him with the powers of appointment and
removal, the power to demand written opinions from executive
officers, and the right to invoke executive privilege to protect
consultative privacy. In the particular case of EPA, Presidential
authority is clear since it has never been considered an "independent
agency, " but always part of the Executive Branch.
The authority of the President to control and supervise
84
424 U.S. at 140-141.
85
See, e.g., Strauss, supra note 30; Miller, Independent Agencies, 1986
Sup. Ct. Rev. 41 (Miller).
86
657 F. 2d 298 (D.C. Cir. 1981).
CRS-23
Humphrey's Executor, in its explicit 82 language as well as its
implications, precludes such a claim.
More recently, in 1976, the Court revisited the issue in Buckley V.
Valeo,
83
and reaffirmed the ability of Congress to invest independent agencies
with authority to perform their traditional functions and to shield their
members from peremptory dismissal.
All aspects of the Act are brought within the Commission's broad
administrative powers: rulemaking, advisory opinion, and
determinations of eligibility for funds and even for federal elective
office itself. These functions
are of kinds usually performed by
independent regulatory agencies or by some department
[E]ach of
these functions also represents the performance of a significant
governmental duty exercised pursuant to a public law
[T]he
president may not insist that such functions be delegated to an
appointee of his removable at will, Humphrey's Executor V. United
82 Id. at 355-56. The litigation involving the removability of members
of independent agencies focused on presidential appointees confirmed by
senatorial consent. But the Court has long recognized Congress' authority to
limit the Executive's power to remove inferior officers where it chooses to
vest appointments in the President alone, department heads or the courts.
We have no doubt that when Congress, by law, vests the
appointment of inferior officers in the heads of Departments it may
limit and restrict the power of removal as it deems best for the
public interest. The constitutional authority in Congress to thus
vest the appointment implies authority to limit, restrict, and
regulate the removal by such laws as Congress may enact in relation
to the officers so appointed.
United States V. Perkins, 116 U.S. 483, 485 (1886) (quoting Court of Claims).
In Myers V. United States, 272 U.S. 52 (1926), the Court reaffirmed the
applicability of its holding in Perkins to inferior officers not subject to
Senate confirmation: "The condition upon which the power of Congress to
provide for the removal of inferior officers rests is that it shall vest the
appointment in someone other than the President with the consent of the Senate.
Congress may not obtain the power and provide for the removal of such officer
except on that condition." 272 U.S. at 162. See also Nader V. Bork, 366 F.
Supp. 104, 108 (D.D.C. 1973), holding that the Watergate Special Prosecutor,
having been appointed by the Attorney General, did not "serve[] subject
to
Presidential control
Congress therefore had the power directly to limit
the circumstances under which Mr. Cox could be discharged," citing Perkins and
Myers.
83
424 U.S. 1 (1976).
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reiterating the distinctions it made there. It found that Congress intended
the War Claims Commission to be protected from presidential review because it
was an adjudicating body charged with deciding claims on the merits, entirely
free of influence from any other branch of government.
And what is the essence of the decision in Humphrey's case? It drew
a sharp line of cleavage between officials who were part of the
Executive establishment and thus removable by virtue of the
President's constitutional powers and those who are members of a body
I to exercise its judgment without the leave or hindrance of any other
official or any department of government as to whom a power
of
removal exists only if Congress may fairly be said to have conferred
it. This sharp differentiation derives from the difference in
functions between those who were part of the Executive establishment
and those whose tasks require absolute freedom from Executive
interference.
81
Further, the Wiener Court held that the President lacked authority to
remove a member of the Commission even though the enabling legislation
contained no removal provision. Because the official performed adjudicative
tasks more closely allied to the judicial than the executive power, the Court
reasoned that Congress intended to deny the President the power of removal.
Justice Frankfurter's opinion for a unanimous Court concluded as follows:
If, as one must take for granted, the War Claims Act precluded the
President from influencing the Commission in passing on a particular
claim, a fortiori must it be inferred that Congress did not wish to
have hang over the Commission the Damocles' sword of removal by the
President for no reason other than that he preferred to have on that
Commission men of his own choosing?
For such is this case. We have not a removal for cause
involving the rectitude of a member of an adjudicatory
body
Judging the matter in all the nakedness in which it is
presented, namely, the claim that the President could remove a member
of an adjudicatory body like the War Claims Commission merely because
he wanted his own appointees on such a commission, we are compelled
to conclude that no such power is given to the President directly by
the Constitution, and none is impliedly conferred upon him by statute
simply because Congress said nothing about it. The philosophy of
81
357 U.S. at 353.
CRS-21
76
United States
that he could remove at will officials performing executive
functions as well as those who have "duties of a quasi-judicial character",
removed a member of the Federal Trade Commission and challenged the
constitutionality of the "for cause" provision of the statute protecting the
commissioners from at-will removal. A unanimous Court overruled the language
in Myers allowing officers with quasi-judicial and quasi-legislative functions
to be removed at will.
The authority of Congress, in creating quasi-legislative or quasi-
judicial agencies, to require them to act in discharge of their
duties independently of executive control cannot well be doubted; and
that authority includes as an appropriate incident, power to fix the
period during which they shall continue in office, 77 and to forbid
their removal except for cause in the meantime.
In rejecting the challenge to the statute, the Court stressed the legislative
determination that the agency in question must be "non-partisan" and from the
very nature of its duties, act with entire "impartiality" 78 "[I]n the
contemplation of the statute," the agency's duties could only be effectively
1179
performed "without executive leave" and "free from executive control
Where
an agency or officer performed valuable functions which partook of the
attributes of more than one branch and could not adequately be performed
absent independence, insulation from political pressures was deemed acceptable
and appropriate.
80
The Court reaffirmed Humphrey's Executor in Wiener V. United States,
76
272 U.S. 52 (1926).
77
295 U.S. at 629.
78
Id. at 624, 625.
79
Id. at 628.
80
357 U.S. 349 (1958).
CRS-20
Interstate Commerce Commission, 73 which became the prototype for the
establishment of the Federal Reserve Board (1913), the Federal Trade Commission
(1914), the United States Shipping Board (1916), the Federal Radio Commission
(1927), and the Federal Power Commission (1930). Interestingly, the
"independence" of these agencies did not become a matter of constitutional
concern until the 1930's when the New Deal greatly expanded the number of such
commissions and agencies, a matter of some significance in light of the narrow
constitutional view of Congress' commerce powers that the so-called Lochner-era
Supreme Court took during the period between 1895-1935. Indeed, while the
Supreme Court was initially inhospitable to both the ICC and FTC in their
formative years, drastically limiting their powers through crabbed statutory
construction, ultimately the Court accommodated itself to a more expansive
congressional intention.
74
The first constitutional challenge to the independence of such agencies
came in Humphrey's Executor V. Federal Trade Commission. 75 There, the
President, relying on the Court's broad ruling nine years before in Myers V.
73 In fact, the ICC actually began its existence as a bureau within the
Department of Interior and first became "independent" in 1889. See, R.
Cushman, The Independent Regulatory Commissions 60-62 (1941). A substantial
argument may be made that the congressional practice of shielding certain
functions from presidential control may be dated far earlier than the creation
of the ICC. See, for example, the creation of Second Bank of the United
States, an entity that may be seen as "functionally identical to the modern
practice of vesting such powers in independent agencies. " Froomkin, supra note
25, at 807. See also Osborn V. Bank of the United States, 22 U.S. (9 Wheat.)
738 (1824) (Second Bank of U.S. constitutional); McCulloch V. Maryland, 17 U.S.
(4 Wheat.) 316 (1817) (same).
74
See, generally, Rabin, Federal Regulation in Historical Perspective, 38
Stan. L. Rev. 1189 (1986).
75
295 U.S. 602 (1935).
CRS-19
had found owing. The Supreme Court, viewing the Postmaster General's duty to
pay the full amount as ministerial rather than discretionary, held that the
President had no authority to direct the Postmaster General's performance of
his statutory authority.
Despite Kendall's narrow holding, key passages of the opinion reflect the
nineteenth-century notion that the President may not in all instances direct
the manner in which executive officers carry out their discretionary functions.
Where Congress has imposed upon an executive officer a valid duty, the Kendall
Court declared, "the duty and responsibility grow out of and are subject to the
control of the law, and not the direction of the President. 70 Underlying the
Court's rejection of the contention that the "take care" clause of the
Constitution carries with it the power to control executive officials was a
strong desire to avoid "clothing the President with the power entirely to
control the legislation of Congress. 1171 Accordingly, early Presidents and
their Attorneys General respected the final and conclusive nature of the
independent decisions of the Comptroller. 72
In 1887 Congress established the first independent regulatory agency, the
70
37 U.S. (12 Pet. ) at 610.
71
Id. at 613.
72
Among the Presidents who expressly foreswore control were President
Polk and President Jackson, who wrote on an 1833 report, "[t]he decision of
the Second Comptroller is final, over whose decisions the President has no
power
quoted in McGuire, Legislative or Executive Control over
Accounting for Federal Funds, 20 I11. L. Rev. 455, 464 (1926); H.C. Mansfield,
The Comptroller General 99 n. 18 (1939) (adding President Tyler to Jackson and
Polk). Attorneys General agreed. 1 Op. Att'y Gen. 624 (1823); id. 678 (1824);
id. 705 (1825) 2 id. 480 (1931) id. 507 (1832); id. 544 (1832) 4 id. 515
(1846); 5 id. 630 (1852) (surveying prior opinions) 11 id. 14 (1864) 13 id. 28
(1869); 15 id. 94 (1876). But see, contra, 7 id. 453 (1855), an opinion called
"extreme" by an early commentator. F. Goodnow, The Principles of
Administrative Law of the United States, 81 (1905).
CRS-18
There can be little doubt that Chief Justice Marshall pronounced
repeatedly, and with deliberation and care to emphasize its importance in the
case, the principle that a quasi-judicial officer with a fixed term could hold
office and "not [be] removable at the will of the executive. 1166 After Marbury,
the Congress concluded that it could determine whether to confer protections
against presidential removal upon officers with mixtures of judicial and quasi-
legislative functions, such as the judges of legislative courts. In McAllister
V. United States
67
the Court reviewed Marbury V. Madison and supported that
view.
Thereafter, lower courts 68 and the Supreme Court in Kendall V. United
States ex rel. Stokes,
69
confirmed that Congress could prescribe duties for
officers to perform independent of the President's will. Kendall is
instructive. There a statute directed the Postmaster General to pay a group of
individuals who had delivered the mail for a number of years an amount
determined by the Solicitor. The Postmaster General, apparently at the express
direction of the President, refused to pay the full amount that the solicitor
66 Marbury V. Madison, 5 U.S. (1 Cranch) at 162; accord, id. at 167 ("not
removable at the will of the President").
67
141 U.S. 174 (1891).
68
Gilchrist V. Collector of Charleston, 10 F. Cas. 355, 356, 363
(C.C.D.S.C. 1808) (No. 5,420); United States V. Smith and Ogden, 27 F. Cas.
1192, 1230 (C.C.D.N.Y. 1806) (No. 16,341a). See II G.L. Haskins & H.A.
Johnson, History of the Supreme Court of the United States 298-304 (1981)
(Gilchrist case); Grundstein, Presidential Power, Administration and
Administrative Law, 18 Geo. Wash. L. Rev. 285, 309-21 (1950); Reinstein, An
Early View of Executive Powers and Privileges: Trial of Smith and Ogden, 2
Hast. Const. L.Q. 309(1975) ("faithful execution" requirements, and account of
Smith and Ogden case). See also Butterworth V. United States ex rel. Hol, 112
U.S. 50, 67 (1884) (Independence of quasi-judicial functions).
69
38 U.S. (12 Pet.) 524 (1838).
CRS-17
61
partakes strongly of the judicial character
Madison concluded from these functions that "there may be strong reasons why an
officer of this kind should not hold his office at the pleasure of the
Executive branch of the Government. 1162
The Supreme Court confirmed distinctions like Madison's as a matter of
fundamental constitutional law in Marbury V. Madison. 63 That case concerned,
of course, whether William Marbury could mandamus the Secretary of State to
provide his commission as justice of the peace for the District of Columbia.
In that historic opinion, Chief Justice Marshall noted, and agreed with, the
First Congress's view regarding the Secretary of Foreign Affairs as a tool of
the President's will. 64 Chief Justice Marshall recognized, in contrast, an
entirely different status for Marbury: an officer who, although not an Article
III judge (having only a five-year term), nevertheless had been appointed to an
office with a fixed term and quasi-judicial functions. Marbury V. Madison
elaborates regarding the non-removability of such an officer:
Mr. Marbury was appointed; and as the law creating the office,
gave the officer a right to hold for five years, independent of the
executive, the appointment was not revocable, but vested in the
officer legal rights, which are protected by the laws of his
65
country.
61
1 Annals of Cong. 611-12 (J. Gales ed. 1789).
62 Id. at 612. The Act of September 2, 1789, ch. 12, sec. 3, 1 Stat. 66,
gave the Comptroller power to countersign warrants. Without his signature, no
monies could be paid out of the national treasury. In 1795, Congress fulfilled
Madison's expectations by providing that the Comptroller's decisions would be
"final and conclusive," thereby making him independent of presidential
direction. Act of March 3, 1795, ch. 48 § 4, 1 Stat. 441, 442 (1795). See
notes 60-64, infra, and accompanying text.
63 5 U.S. (1 Cranch) 137 (1803).
64
Id. at 165-66.
65
5 U.S. (1 Branch) at 162 (emphasis supplied).
CRS-16
Perhaps more pertinent for present purposes is the history of the
establishment of the independent office of Comptroller in the Treasury
Department. Here the understanding of the Framers may be said to have been
revealed most clearly when James Madison discussed, in the First Congress, the
structure for Treasury operations. It is well rehearsed that when Congress
convened in New York in 1789, Madison argued successfully, as the living voice
of the Philadelphia Convention two years earlier, that an officer such as the
Secretary of Foreign Affairs should be responsible solely to the President's
will, and hence subject to removal at will 58 But when the First Congress took
up the Treasury a week later, Madison distinguished the Comptroller's function
as entirely different. As the Supreme Court later noted:
[when] the tenure of office for the Comptroller of the Treasury was
under consideration, Mr. Madison quite evidently thought that, since
the duties of that office were not purely of an executive nature but
partook of the judiciary quality as well, a different rule in respect
of executive removal might well apply. 1 Annals of Congress, cols.
611-612.
59
Specifically, Madison explained the need for "the independent officers of
1160
Comptroller and Auditor.
Madison elaborated, respecting the tenure by which
the Comptroller was to hold his office:
It will be necessary, said he, to consider the nature of this
office
[and] in analyzing its properties, we shall easily discover
they are not purely of an Executive nature. It seems to me that they
partake of a Judiciary quality as well as Executive; perhaps the
latter obtains in the greatest degree. The principal duty seems to
be deciding upon the lawfulness and justice of claims and accounts
subsisting between the United States and particular citizens: this
58
See Myers V. United States, 272 U.S. at 111-31.
59
Humphrey's Executor V. FTC, 295 U.S. at 631 (emphasis supplied).
60
1 Annals of Cong. 393 (J. Gales ed. 1789).
CRS-15
the Post Office,
53
54
and the Interior Department
The
Treasury
Department
statute, for example, did not even mention the President: it required the
Secretary to report to Congress "and generally perform all such services
relative to the finances, as he shall be directed to perform. 155
Such
direction, the context makes clear, was to come from Congress, not the
President. Indeed, for a significant period in our early history, the
President did not see departmental budget estimates before the Treasury
Department transmitted them to Congress, and the Secretary recommended tax
policy directly to Congress. 56 Similarly, the Postmaster General was given
detailed discretionary duties with no suggestion that he was to be under other
than congressional direction in performing these tasks 57
53
Act of May 8, 1794, ch. 23, § 3, 1 Stat. 357.
54
Act of Mar. 3, 1849, ch. 108, § 1, 9 Stat. 395.
55
Act of Sept. 2, 1789, ch. 12, § 2, 1 Stat. 65, 66. Pursuant to this
mandate, Alexander Hamilton, the first Secretary of the Treasury, submitted
seminal reports to the Congress at the direction of the House of
Representatives. Each report begins with an acknowledgement of the order of
the House which had directed him to report. Report of Public Credit, 2 Annals
of Congress, 1991 (1790); Report on a National Bank, id., 2031; Report on
Manufactures, 3 Annals of Congress 971 (1791) ("The Secretary of the Treasury,
in obedience to the order of the House of Representatives
").
56 L. White, The Jacksonians 78 (1954); L. White, The Federalists 326
(1948).
57 3 W. Willoughby, The Constitutional Law of the United States 1480 (2d
ed. 1929). Professor Goodnow remarked about this unusual administrative
organization as follows:
In the United States, the original conception of the head of
department was that of an officer stationed at the center of the
government who might have, it is true, in many cases the power of
appointment and removal, but who was not supposed to direct the
actions of the subordinates of his department
The conception of a
hierarchy of subordinate and superior officers was very dim if it
existed at all. F. Goodnow, Comparative Administrative Law 136-37
(1893).
CRS-14
guided in this area by longstanding relevant historical practice. 47
In
the
area of statutory control of agency decisionmakers, such practice is
abundant
48
Thus, statutes enacted by the earliest Congresses, for example, reveal an
assumption that Congress, not the President, should regulate the operation of
domestic agencies, and that presidential control over the execution of domestic
laws was purely a matter of legislative authorization. In establishing the
Departments of Foreign Affairs, 49 War, 50 and the Navy, 51 Congress recognized
that the President should have full control over those officers who would
perform the highly sensitive and political functions that the Constitution
explicitly vests in the Chief Executive -- such as the conduct of foreign
affairs and the command of the military. The statutes creating those
departments explicitly empowered the President to direct and control their
activities. Provision for presidential direction, however, was conspicuously
absent in the statutes creating domestic departments such as the Treasury, 52
47
See, e.g., Melcher V. Federal Open Market Committee, 644 F. Supp. 510,
521-27 (D.D.C. 1986) (presence of five members on Open Market Committee who are
not appointed pursuant to Article II held constitutional in view of long
history of independence on part of national banking officials and political
acceptance of that independence).
48
See, generally, Froomkin, In Defense of Agency Autonomy, 96 Yale L. J.
743, 805-808 (1987) (Froomkin); Rosenberg, Beyond the Limits of Executive
Power: Presidential Control of Agency Rulemaking Under E.O. 12,291, 80 Mich.
L. R. 193, 202-205 (1981).
49 Act of July 27, 1789, ch. 4, § 1, 1 Stat. 28.
50
Act of Aug. 7, 1789, ch. 7, § 1, 1 Stat. 49.
51
Act of Apr. 30, 1789, ch. 35, § 1, 1 Stat. 553.
52,
Act of Sept. 2, 1789, ch. 12, § 2, 1 Stat. 65, 66.
CRS-13
removal powers of the President as an aspect of his assigned function to see to
the faithful execution of the laws: Myers V. United States 42 Humphrey's
Executor V. United States 43 Wiener V. United States 44 ; and Bowsher V. Synar45.
The standard by which the Court evaluates separation of powers claims in the
absence of a specific textual commitment (and sometimes uses as a guide in
interpreting express provisions), although not spelled out in these cases, is
clearly enunciated and applied in its decisions dealing with the
confidentiality of presidential communications. Thus, the Court first asks
whether the action of the challenged branch threatens to prevent another "from
accomplishing its constitutionally assigned function," and second, where there
is a "potential for disruption", it determines "whether that impact is
justified by the overriding need to promote objectives within the
constitutional power" of the moving branch. 46
II. Historical and Legal Practice and Precedents Respecting Statutory
Direction and Control of Agency Officials
While judicial application of the foregoing standard of separation of
powers review will necessarily be in a defined context, courts may well be
42
272 U.S. 52 (1926).
43
295 U.S. 602 (1935).
44 357 U.S. 349 (1958).
45
106 S.Ct. 3181 (1986).
46 Nixon V. Administrator of General Services, supra, 433 U.S. at 442-43,
Nixon V. Fitzgerald, 457 U.S. 731, 753-54 (1982).
CRS-12
compartmentalized, checking and balancing would be impossible. When the idea
of a rigidly pure separation was suggested to the Framers and debated by them,
37
they consciously rejected it as impractical and unreasonable
Recent
commentators have emphasized that "[b]y the time of the Philadelphia Convention
the doctrine of separated powers had been modified to allow for checks and
balances
1138
Rather, "the whole power of one department [should not be]
exercised by the same hands which possess the whole power of another
1139
department.
The approach followed by the Court in adjudicating separation of powers
challenges is two-fold. First, the principle of separation may be embodied in
a specific clause of the Constitution; there may be a textual commitment of a
function to one branch. The appointments clause at the foundation of Buckley
V. Valeo,
40 and the presentation clause at the focus of INS V. Chadha, 41
represent this strand of separation of powers decisionmaking. Second, in the
absence of a specific commitment, the Court must, in determining whether a
function may be performed by one branch, derive from context and structure
whether the function is inherently exclusive within that or another branch or
whether it must be deemed to be exclusively committed to a particular branch in
order to protect functions that are exclusive to that branch. Illustrative of
this strand of separation of powers analysis are the decisions respecting the
37
See, The Federalist, Nos. 47, 51 (J. Madison) (J. Cooke ed. 1961).
38
L. Fisher, Constitutional Conflicts Between Congress and the President
14 (1985) Banks, supra n. 25, at 632-633.
39
The Federalist, No. 47, at 325-26 (J. Madison) (J. Cooke ed. 1961)
(quoting Montesquieu).
40
424 U.S. 1 (1976).
41
462 U.S. 919 (1983).
CRS-11
This schema is consistent with the Supreme Court's standard for treatment
of separation of powers questions. Thus in Nixon V. Administrator of General
Services,
31 the Court rejected the "'archaic view of the separation of powers
as requiring three airtight departments of government. 11132 In determining
whether a statute disrupts the balance between the coordinate branches, the
proper inquiry focuses on the extent to which the act "prevents the Executive
Branch from accomplishing its constitutionally assigned functions. 1133 The
"Court has thus been mindful that the boundaries between each branch should be
fixed 'according to common sense and the inherent necessities of government
coordination.
11134
It has also noted that a "hermetic sealing of the three
branches of Government from one another would preclude establishment of a
Nation capable of governing itself effectively. 35 "Rather, as Justice Jackson
wrote: 'While the Constitution diffuses power the better to secure liberty, it
also contemplates that practice will integrate the dispersed powers into
a
workable government. It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity. 11136
The Court's rejection of the "archaic view" tracks the pronouncements of
the Framers. If the three branches of government were rigidly
31
433 U.S. 425 (1977).
32
Id. at 443.
33
Id.
34 INS V. Chadha, 462 U.S. 919, 962 (1983) (Powell, J., concurring)
(quoting J.W. Hampton, Jr. & Co. V. U.S., 276 U.S. 394, 406 (1928)).
35
Buckley V. Valeo, supra, 424 U.S. at 121.
36 Chadha, 462 U.S. at 962 (Powell, J., concurring), (quoting Youngstown
Sheet & Tube Co. V. Sawyer, 343 U.S. 579, 635 (1952) (concurring opinion).
CRS-10
Legislative branch.
1129
Thus, the constitutional constraint that is to be dealt with by the courts
in cases involving officer insulation from at will removal, or the vesting of
unreviewable discretion in an official subordinate to the President, is the
separation of powers, and the discrete question is how far Congress may go in
insulating the roles of the agencies and officers of the government from
presidential authority.
Here it must be understood at the outset that the Constitution did not
establish a division of three branches, each vested with a discrete portion of
governmental power and no more. Rather, the Framers established three
constitutional divisions: the President, the Congress, and the Judiciary. The
document does not talk about the executive, the legislative and the judicial
branches. Nor did it create the infrastructure of government. That task it
left to the exclusive domain of the Congress. What the Framers were concerned
about is the maintenance of a balance of political power between the President
and Congress. That is what the separation of powers speaks to. The Framers
were also concerned about the means of control to be afforded the branches over
the agencies of government. This is what the checks and balances are meant to
facilitate. In turn, the checks and balances are to be evaluated in terms of
their effect on the nature and degree of control one branch has over the
agencies will have on the relative balance between Congress and the
President.
30
29
Id. at 3191.
30
See generally, Strauss, supra note 22; Strauss, The Place of Agencies
in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev.
573 (1984); Banks, When They Get Close To The Truth: Challenging The Special
Prosecutors, 38 Syrac. L. Rev. 623 (1987) (Banks).
CRS-9
arm or eye of the executive. Its duties are performed without
executive leave and, in çontemplation of the statute must be free
from executive control. 24
The Court was quick to note that in recognizing that Congress could insulate
such officers in this manner from presidential control it was being faithful to
the tripartite constitutional scheme:
The fundamental necessity of maintaining each of the three
general departments of government entirely free from the control or
coercive influence, direct or indirect, of either of the others, has
often been stressed and is hardly open to serious question. So much
is implied in the very fact of the separation of the powers of these
departments by the Constitution; 25 and in the rule which recognizes
their essential co-equality.
Subsequent High Court rulings have made it abundantly clear that persons
exercising significant authority pursuant to law must find their place within
the tripartite design. 26 Moreover, as the Court's Bowsher decision observed,
"'Once an officer is appointed, it is only the authority that can remove him,
and not the authority that appointed him that he must fear, and, in the
performance of his functions, obey. 11127 For that reason, in Bowsher the Court
identified the provision governing the removal of the Comptroller General as
"[t]he critical factor" defining the status of his office. 28 In that case, the
Comptroller General, although appointed by the President, was by virtue of his
removability by Congress by joint resolution deemed to be "an officer of the
24 295 U.S. at 628.
25
Id. at 629-630.
26
See, e.g., Buckley V. Valeo, 426 U.S. 1 (1976); Bowsher V. Synar, 106
S. Ct. 3181, 3186-3189 (1986).
27 Bowsher V. Synar, 106 S. Ct. at 3188 (quoting Synar V. U.S., 626 F.
Supp. 1374, 1401 (D.D.C. 1986) (3-judge court)).
28
Id. at 3189.
CRS-8
President would preside as an active manager. 18 In particular, the Report
urged that the President's role be expanded by placing some 100 independent
agencies, administrations, boards, and commissions within the executive
department. These independent agencies, the Report argued, constituted a
"headless 'fourth branch acting "under conditions of virtual
irresponsibility," thereby frustrating the President's role as "the General
Manager of the United States. 19 Contemporary scholars raised constitutional
objections to this notion of the President as general manager, 20 and Congress
did not enact the Report's proposals. But the rubric has persisted, 21 acting
as a useful rhetorical pejorative despite prevailing judicial and scholarly
opinion that it is a "constitutional impossibility" 22 In this regard the
seminal Supreme Court ruling in Humphrey's Executor V. Federal Trade
Commission,
23
establishing the non-removability except for cause of members of
independent commissions, stated:
The Federal Trade Commission is an administrative body created
by Congress to carry into effect legislative policies prescribed, and
to perform other specified duties as a legislative or as a judicial
aid. Such a body cannot in any proper sense be characterized as an
18 U.S. President's Committee on Administrative Management, Administrative
Management in the Government of the United States (1937).
19
Id. at 41-42.
20.
Jaffee, Invective and Investigation in Administrative Law, 52 Harv. L.
Rev. 1201, 1278 (1939).
21 See, e.g., Synar V. United States, 626 F. Supp. 1374, 1398 (D.D.C.
1986).
22
Verkuil, The Status of Independent Agencies After Bowsher V. Synar,
1986 Duke L.J. 779, 798 (1986) (Verkuil) Strauss, Formal and Functional
Approaches to Separation of Powers Questions -- A Foolish Inconsistency? 72
Corn. L. Rev. 488, 492-496 (1987) (Strauss); Rohr, To Run a Constitution 152-
153 (1986) (critiquing the rhetorical excesses of the Brownlow Report).
23
295 U.S. 602 (1935).
CRS-7
relevant pronouncements may be read to signal that it is not yet ready to
embrace a constitutional interpretation implying a fundamental structural shift
of power as has evolved in American governmental practice vis-a-vis the
17
administrative bureaucracy.
But as it is likely that litigation in this area will continue at least
into the near future, it is useful at this juncture to attempt to define the
issues that will confront the courts and outline the principles and legal and
historical precedents that may influence their judicial resolution.
We turn
first to the critical matter of issue definition.
I. Defining the Issue: Controlling the Bureaucracy in a System of Separated
Powers
For more than half a century much discussion on the nature and place of
the administrative bureaucracy has been misdirected by the colorful but legally
inaccurate appellation attached to independent regulatory agencies by the
Brownlow Report, a 1937 study that recommended that the executive branch be
reorganized to create an integrated, hierarchical structure over which the
SEC citing Humphrey's Executor); Public Citizen V. Burke, 655 F. Supp. 318
(D.D.C. 1987) (memorandum to Archivist by Justice Department and Office of
Management and Budget directing him to honor all claims of executive privilege
proffered by former presidents is contrary to law and properly promulgated
agency regulations); In re Sealed Case, 665 F. Supp. 56 (D.D.C. 1987)
(Independent Counsel statute held constitutional) Deaver V. Seymour, CA. No.
87-0477 (D.D.C., Mar. 17, 1987) ("Independent Counsel statute will probably not
be found to offend the Constitution." FTC V. Engage-A-Car Servs. No. 86-3758
(D.N.J. Dec. 18, 1986) (claim that FTC enforcement authority is
unconstitutional is "devoid of merit"); Melcher V. Federal Open Market
Committee, 644 F. Supp. 510, 517-24 (D.D.C. 1986) (challenge to
constitutionality of appointment of members of FOMC by private individuals
rejected), appeal docketed, No. 86-5692 (D.C. Cir. Dec. 16, 1986).
17 Bowsher V. Synar, 106 S. Ct. 3181 (1986); Commodity Futures Trading
Commission V. Schor, 106 S. Ct. 3245 (1986).
CRS-6
Branch.
13
The cumulative impact of these and other executive actions evidences to
some a growing threat to Congress' policymaking prerogatives and the rule of
law.
14 The high water mark for proponents of a hierarchical executive was
apparently reached in early 1986 when a federal court for the first time
questioned whether the concept of agency independence could be reconciled with
the President's removal power under Article II. 15
However, these aggressive stances have been recently blunted, at least
temporarily, by a series of federal district and appellate court rulings that
have either rejected the notion of a unitary executive or have seriously
questioned its fundamental premises. 16 Moreover, the Supreme Court's latest
13
Emphasis in original; footnotes omitted. Assistant Attorney General
Habicht made it clear that the Department's position extends beyond the
administrative order situation. In response to a Member query whether the
President's authority under the theory would extend to independent regulatory
agencies, he stated: "[T]he President retains broad authority to direct the
operations of federal regulatory agencies, even when Congress has elected to
limit his power to remove the officials charged with managing these agencies.
In our judgment, it would be unconstitutional for legislation to authorize a
federal regulatory agency to assume a core executive function such as law
enforcement and to carry out that activity against other elements of the
federal government in a manner which in any way hindered the President's
ability to resolve disputes within the Executive Branch."
14 This hierarchical mindset is seen by some as underlying the events
chronicled in the Iran/Contra hearings. See, e.g., Drew, Letter From
Washington, New Yorker, June 22, 1987, 75-76; Caplan, Annals of the Law: The
Tenth Justice, New Yorker, August 10, 1987, 29-30.
15
Synar V. United States, 626 F. Supp. 1374, 1403 (D.D.C.), aff'd sub
nom. Bolwsher V. Synar, 106 S. Ct. 3181 (1986).
16 See, e.g., In re Theodore Olson, 818 F.2d 34 (D.C Cir., Ind Counsel
Div. 1987) ("Independent Counsel statute is grounded in the 'necessary and
proper' clause and the Article II appointments clause of the Constitution" and
is "fully consistent with the separation of powers doctrine
"); Federal
Trade Commission V. American National Cellular, Inc., 810 F.2d 1511 (9th Cir.
1987) (prosecutorial authority held properly vested in FTC citing Humphrey's
Executor V. FTC); Securities and Exchange Commission V. Warner Communications,
652 F. Supp. 647 (S.D. Fla. 1987) (prosecutorial authority properly vested in
CRS-5
power in the President alone."
The President's use of his Article II supervisory powers to
resolve disputes among his subordinates also follows from the
Framers' intent that the executive power of the United States be
exercised in a "unitary and uniform" way. Myers, 272 U.S. at 135.
The basic principle underlying Article II of the Constitution, is
that the Executive power is vested in a single person, the President,
or as James Madison stated during the Great Debate of 1798, "the
great principle of unity and responsibility in the Executive
department. 1 Ann. Cong. 499 (1798). Simply put, the executive
power under our Constitution is based on this principle of the
unitary executive. The Framers deliberately chose this principle and
deliberately rejected the cabinet (or privy council) alternative,
with which they were quite familiar from British practice and from
the constitutions of most of the original states.
One of the main reasons the Framers chose to create a unitary
executive was that they believed that unity in the executive would
promote what today we call "accountability." As Alexander Hamilton
pointed out, the more that the executive power is watered down and
distributed among various persons, the easier it is for everyone
concerned to avoid blame for failure to comply with the rule of law.
The Federalist No. 70, at 427-428 (A. Hamilton) (c. Rossiter ed.
1961) Hamilton stated that one of the weightiest objections to a
plurality in the executive is that it tends to conceal faults and
destroy responsibility." Id. at 427. To ensure accountability to
the President, the Constitution, as interpreted by the courts, vests
him with the powers of appointment and removal, the power to demand
written opinions from executive officers, and the right to invoke
executive privilege to protect consultative privacy.
In our view, if the intentions of the Framers are to be
fulfilled, the President must have an unfettered opportunity to take
action in the event of disagreements or disputes within the Executive
Branch. The President has the responsibility of making certain that
that Branch speaks with one voice. He can do that by settling the
controversy himself, or by establishing procedures, as he has done by
Executive Order, for the resolution of controversies by one of his
principal officers. In this way, conflicts within the Executive
Branch are resolved internally, under the supervision of the
President or his delegate, and not in the courts.
The President is accountable to the American people for the
activities of all Executive agencies. Thus, the President has the
ultimate duty to ensure that federal facilities comply with the
environmental laws as part of his constitutional responsibility under
Article II, even though Executive Branch agencies are subject to
EPA's regulatory oversight. Accordingly, Executive Branch agencies
may not sue one another, nor may one agency be ordered by another to
comply with an administrative order without the prior opportunity to
contest the order within the Executive Branch. Thus, coercive
unilateral order authority is inconsistent with the constitutional
principles of unity and unitary responsibility within the Executive
CRS-4
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) 10
A
significant consequence of the issuance of such orders is that they reflect a
determination of requirements under the statutes which can be invoked by
private citizens in lawsuits authorized to vindicate their statutory rights. 11
EPA unilateral administrative orders are therefore an integral part of the
intricate, interrelated environmental enforcement mechanism enacted by Congress
that authorizes a complex of federal, state, and private administrative and
court actions. However, in recent testimony before Congress the Justice
Department has directly challenged the constitutionality of vesting such
unilateral order authority in EPA, contending that the Constitution mandates
that all intrabranch disputes must be resolved either by the President or his
12
delegate.
The breadth of the argument presented sweeps beyond the confines
of the EPA order situation and reflects the Administration's most definitive
statement of the theory of the unitary executive to date. It thus merits
extended quotation.
The President's authority to require Executive Branch agencies
to submit their legal disputes to him or his delegate for resolution
derives from his Article II duty to "take Care that the Laws [are]
faithfully executed, as does his responsibility to supervise the
affairs of the executive Branch. This obligation necessarily
recognizes the President's authority to exert "general administrative
control over those executing the law." Myers V. United States, 272
U.S. 52, 161-164 (1926). The President, as head of the Executive
Branch, must "supervise and guide" executive officers in "their
construction of the statutes under which they act in order to secure
that unitary and uniform execution of the laws which Article II of
the Constitution evidently contemplated in vesting general executive
10 42 U.S.C. 9609(a) (1982).
11 See, e.g., 42 U.S.C. 6972 (Suppl. III 1985). On citizen suits
generally, see Comment, The Rise of Citizen-Suit Enforcement in Environmental
Law: Reevaluating Private and Public Attorneys General, 81 N.W. Univ. L. Rev.
220 (1987).
12
Habicht Testimony, supra note 8.
CRS-3
to empower the Environmental Protection Agency (EPA) to issue statutorily
prescribed unilateral administrative compliance orders to agencies found in
violation of environmental laws and regulations applicable to them. 8
The last mentioned claim of constitutional authority for the President to
interdict EPA administrative orders directed at federal agencies with
facilities in noncompliance with environmental laws presents a paradigm case
study in the growing conflict between the political branches over control of
the bureaucratic infrastructure. EPA's authority to issue administrative
orders to other federal agencies is contained in section 3008 of the Resource
Conservation and Recovery Act (RCRA)⁹ and section 106 of the Comprehensive
various congressional committees. See, "Justice Dept. Attacks Special
Counsels", Wash. Post, June 17, 1987, at Al (Reporting letter to Senate
Governmental Affairs Subcommittee Chairman Carl Levin by Assistant Attorney
General John R. Bolton stating that "To the extent that the present statute
authorizes a prosecutor to investigate and prosecute federal crimes without
such accountability [to the President], and makes such a prosecutor subject to
the direction and control of a court rather than the executive, we believe it
is unconstitutional. "Oversight of the Independent Counsel Statute,"
Hearings before Subcomm. on Oversight of Government Management, Senate Comm. on
Governmental Affairs, 100th Cong., 1st Sess. 8-18 (1987). Testimony of
Assistant Attorney General John R. Bolton before a Senate Governmental Affairs
Subcommittee that the "law governing the appointments [of independent counsel
is]... 'unconstitutional' in every important respect", and that the President
"must retain the unfettered ability to direct and supervise all executive
officials"; and "Congress Moves to Amend Special Counsel Act", Legal Times of
Washington, Jan. 12, 1987, P. 4, quoting Assistant Attorney General Charles
Cooper ("We have raised concerns that the [Independent Counsel law is
unconstitutional because it violates the separation of powers, and that if the
constitutionality of the law was "appropriately" challenged in the courts, the
Department would join a lawsuit to overturn it).
8
Statement of F. Henry Habicht, II, Antitrust Attorney General, Land and
Natural Resources Division, before the Subcommittee on Oversight and
Investigations, House Committee on Energy and Commerce, Concerning Federal
Facility Compliance with Environmental Laws, April 28, 1987. (Habicht
Testimony)
9 42 U.S.C. 6928(a), (h) (1987 suppl.).
CRS-2
Budget by executive orders; 3 challenging the constitutional validity of
independent regulatory agencies; 4 asserting the inability of Congress to vest
discretionary authority in subordinate executive officials that is free from
presidential supervision and control; 5 refusing to implement congressional
enactments it deems unconstitutional 6 questioning the authority of Congress to
vest the appointment of an executive officer in the courts and to provide for
removal of that officer only for cause; 7 and denying the authority of Congress
3 E.O. 12,291 3 C.F.R. 127 (1981); E.O. 12,498, 50 F.R. 1036 (1985).
4
Address of Honorable Edwin Meese III, Attorney General of the United
States before the Federal Bar Association, September 13, 1985 ("... [F]ederal
agencies performing executive functions are themselves properly agents of the
executive. They are not 'quasi' this or 'quasi' that. In the tripartite
scheme of government a body with enforcement powers is part of the executive
branch of government. Power granted by Congress should properly be understood
as power granted to the Executive.' (Emphasis in original).
5
"Access to the Nixon Presidential Materials Should Be Governed by NARA
Regulation, Not OMB or DOJ Actions", H. Rept. No. 99-961, 99th Cong. 2d Sess.
(1986); Public Citizen V. Burke, 655 F. Supp. 318 (D.D.C. 1987).
6
See, Ameron, Inc. V. Corps of Engineers, 809 F. 2d 979, 991 n. 8 (3d
Cir. 1986).
7
On August 31, 1987 the Department of Justice officially took a
position against the constitutionality of the statute (the Ethics in Government
Act) establishing the mechanism for appointing Independent Counsels in an
amicus brief filed in In re Sealed Case, Nos. 87-5261, -5264 and-5265 (D.C.
Cir.). The argument relies heavily on the theory of a unitary executive ("The
vesting of the 'executive power' in the President and his duty to 'take Care
that the Laws be faithfully executed' (Art II, Sec. 3), give substance to the
Framers' agreement that there must be a unitary, vigorous, and independent
Executive responsible directly to the people Unity in the execution of the
laws was deemed by the Framers to be a 'leading character in the definition of
good government' absence of unity in the Executives would, in the eyes of
the Framers, create a lack of responsibility and accountability. The Ethics
Act
contravenes the Constitution by eliminating or strictly limiting the
power of the Executive Branch to appoint, control, and remove an Officer
charged with the quintessential executive duty of criminal law enforcement.
Such a key officer must serve under the direct supervision of the Executive.
If the doctrines of separation of powers and the unitary Executive are to have
meaning, Officers charged with these law enforcement responsibilities must
function within the Executive Branch.' pp. 7-8, 10-11).
This position was presaged by testimony of Department officials before
Congressional Control of Agency Decisions and Decisionmakers:
The Unitary Executive Theory and Separation of Powers
Since 1981 the Reagan Administration has aggressively pursued the concept
of a highly centralized bureaucratic structure of government. This model of
governance envisions a unified and hierarchical executive with the President at
its apex and all administrative agencies arrayed below him. It views the
President, as the only nationally elected official of the federal government,
as the possessor of broad supervisory and managerial powers as well as an
encompassing political presence in administrative agencies. The Chief
Executive's constitutional duty to see that the laws are faithfully executed is
seen as providing both the responsibility and the authority to intervene in
administrative decisions in order to set priorities, allocate limited
resources, balance competing policy goals, resolve conflicting jurisdictions
and responsibilities of agencies, and assure that programs are effectively and
efficiently managed.
Motivated by a limited-government, deregulatory ideology 1 and encouraged
by judicial rulings interpreted as supportive of the idea of a unitary
executive branch, 2 the Reagan Administration and its supporters have taken a
variety of actions to make that idea an accomplished fact. These have included
centralizing control of agency rulemaking in the Office of Management and
1
Eads & Fix, Relief or Reform: Reagan's Regulatory Dilemma 1-6 (1984)
Tolchin and Tolchin, Dismantling America 20-26 (1984).
2
Buckley V. Valeo, 424 U.S. 1 (1976); INS V. Chadha, 462 U.S. 919 (1983);
Northern Pipeline Construction Co. V. Marathon Pipeline Co., 458 U.S. 50
(1982); Bowsher V. Synar, 106 S. Ct. 3181 (1986); Sierra Club V. Costle, 657 F.
2d 298 (D.C. Cir. 1981).
ABSTRACT
In support of a variety of actions since 1981 designed to ensure ultimate
presidential control of decisionmaking in all executive branch agencies, the
Reagan administration has articulated a constitutionally based theory of a
unitary executive. This report analyzes and assesses the legal and historical
underpinnings of the theory and concludes that Congress' authority to enact
legislation directing and controlling administrative decisionmaking has a
substantial constitutional basis and that presidential claims of power in this
area are unjustified.
TABLE OF CONTENTS
Introduction
1
The general background of the issue; the problem of
unilateral administrative orders issued by the
Environmental Protection Agency; and the Administration's
statement of its legal position.
I. Defining the Issue: Controlling the Bureaucracy in a System of
Separated Powers
7
The "headless fourth branch" misnomer and independent
regulatory agencies; the appropriate mode of analysis in
separation of powers cases.
II. Historical and Legal Practice and Precedents Respecting Statutory
Direction and Control of Agency Officials
13
Early patterns of congressional control in the
establishment of the administrative bureaucracy; judicial
approval of insulation of agency decisionmakers from
presidential control.
III. Recent Litigation Trends
23
Review and analysis of case law since 1981 supporting the
theory of the unitary executive; the counter-trend since
1986; the emerging test for separations of powers cases.
IV. Assessing the Impact of EPA's Order Authority On the President's
Constitutional Role: A Separation of Powers Analysis
42
The justiciability of intra-branch litigation; the role of
administrative orders in the environmental law enforcement
mechanism; impact of administrative orders on the
President's ability to faithfully execute the laws; factors
justifying congressional intrusion; and application of
Nixon V. GSA/Schor test.
V. Conclusion: Congressional Control of Agency Decisionmaking and the
President's Duty to Obey the Law
58
The current state of the law with respect to Congress'
power to create the administrative structure and the powers
and duties of offices and officers; analysis of the
constitutional basis of the theory of the unitary
executive; and the threat the theory poses for the rule of
law.
CRS
Congressional Research Service
The Library of Congress
Washington, D.C. 20540
Constitution of the U.S.: Its History,
Development and Amending Process
IP 339C
On September 17, 1787, the Constitutional Convention adjourned with
a document ready for ratification by the States. Since then, the Constitution,
which outlines the fundamental laws of the United States, has been debated,
interpreted, and amended, and yet has remained stable. In 1987, various
celebrations were held in commemoration of the Constitution's bicentennial.
This Info Pack provides background information on the U.S. Constitution
including its history, application, and development.
Members of Congress who want further information on this topic may
contact CRS at 7-5700. Additional CRS reports may be identified by looking
in the current Guide to CRS Products (for congressional use only) under
"Constitution [U.S.]" and in the latest Update under "Government and
Politics."
Constituents may find additional information on this topic in a local
library through the use of Readers' Guide to Periodical Literature, Public
Affairs Information Service Bulletin (PAIS), and various newspaper indexes.
Books on this subject may be identified through the library's catalog or the
most recent edition of Subject Guide to Books in Print.
We hope this information will be helpful.
Congressional Reference
Division
JK 140
CRS
Congressional Research Service
The Library of Congress
Washington, D.C. 20540
COPIES OF HISTORICAL DOCUMENTS
The Constitution of the United States and
The Declaration of Independence
The texts of the Constitution of the United States and the Declaration
of Independence are widely available--they can be found in the United States
Government Manual, encyclopedias, almanacs, and many reference
books--works readily available at local school, public, and research libraries.
In addition, references to other sources of these documents in various formats
are provided below.
TEXT AVAILABLE FREE FROM THE COMMISSION ON THE
BICENTENNIAL
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TEXTS AVAILABLE FROM THE U.S. GOVERNMENT PRINTING
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Constitution of the United States of America
House document 94-508. Pocket edition.
Stock no.: 052-071-00477-7
$1 domestic, $1.25 foreign
Constitution of the United States: Published for the Bicentennial of Its
Adoption in 1787
Library of Congress. Contains a historical analysis of the framing and
a complete text of the Constitution.
Stock no.: 030-000-00190-7
$2.50 domestic, $3.15 foreign
Declaration of Independence and the Constitution of the United States of
America
House document 96-143. Contains the Declaration of Independence, the
Constitution, amendments to the Constitution, and proposed amendments not
ratified by the States.
Stock no.: 052-071-00596-0
$2 domestic, $2.50 foreign
CRS-2
TEXTS AVAILABLE FROM THE NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION (NARA):
The National Archives and Records Administration sells a number of
documents; see pages three and four for a list and ordering information.
TEXTS FROM HISTORICAL DOCUMENTS COMPANY:
Historical Documents Company sells facsimile copies of documents on
antiqued paper made to look like parchment. They offer their items only in
quantities as indicated.
Declaration of Independence (facsimile)
14 X 16 inches
Constitution of the United States (condensed on one sheet) 12 1/2 X 19 inches
Bill of Rights (with explanatory text)
14 X 16 inches
The above items are for sale at the following prices:
minimum of 100 copies, $.50 each
minimum of 500 copies, $.36 each
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minimum of 1000 copies, $.30 each
The above items in large school size facsimiles (23 X 29 inches) are also
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minimum of 25 copies, $2 each
minimum of 100 copies, $1.25 each
The company also offers a four-sheet set of the Constitution which is
closer to the original size and which is more legible. The set is available for
$1.20 each for 100 to 1000 sets. Also available is a six-sheet set of the Three
Documents of Freedom, consisting of the four-sheet set of the Constitution,
and one sheet each of the Declaration of Independence and the Bill of Rights,
at $1.50 each for a minimum of 50 sets. The address is:
Historical Documents Company
8 North Preston Street
Philadelphia, PA 19104
Telephone: (215) 387-8076
We hope this information is helpful.
Congressional Reference
Division
042089
1
CRS-3
PUBLICATIONS, GIFTS AND AUDIOVISUAL PROGRAMS
AVAILABLE FROM THE NATIONAL ARCHIVES [Selected Excerpts]
Charters of Freedom: The Declaration of
Poster Reproductions of the Charters
Independence, The Constitution,
of Freedom
The Bill of Rights
These new reproductions have been produced according
Three documents laid the political foundation of the
to meticulous standards to ensure faithfulness to the
United States: the Declaration of Independence pro-
original documents; in fact, the same staff that is responsible
claimed to the world the American concept of government
for preserving the originals supervised the reproduction
and the reasons for American separation from Great
process. Printed in duotones of black and brown. each
Britain; the Constitution of the United States established
reproduction appears aged and faded in places. just as the
the structure of the federal government and joined 13
original document does. Because the Declaration of
states into a single nation; and the Bill of Rights protected
Independence is now virtually illegible, an engraving in
personal liberties and assured the states control of local
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William J. Stone in 1823 was employed for reproduction-
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duced in Charters of Freedom with brief historical notes and
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and rosin-free-that is noted for its permanence and may
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#6312-$5
Constitution of the United States
This new pocket-size printed text of the Constitution-and
4 pages, 37 9/16 X 241/4
its amendments-has been published specially to com-
#6311-$7.50
memorate its bicentenary in 1987. The booklet features a
handsome foil-embossed cover, a new introduction that
Bill of Rights
discusses briefly the document's preservation and display
37 9/16 X 241/4
at the National Archives Building in Washington, DC,
#6313-$5
and an afterword about the 200th anniversary of the
Constitutional Convention.
41/4 X 7,31 pages, 1986
Facsimiles on Antiqued Paper Made
#200041-Softcover only-$1.50
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Declaration of Independence -- $.75
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CRS-4
A More Perfect Union: The Creation
ORDERING
of the U.S. Constitution. Milestone
INFORMATION
Documents in the National Archives
This booklet chronicles the exciting events in Philadelphia
during the spring and summer of 1787 that led up to the
Constitution of the United States. The full text of the docu-
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The Adventures of a Document
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The Constitution created a powerful national government
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quite unlike the league of states established by its pre-
decessor, the Articles of Confederation. Concern that this
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central authority might be used against the people rather
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than for them prompted the demand for a Bill of Rights
Building, 7th Street & Constitution Avenue, NW,
incorporating formal safeguards for basic liberties. This
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81/2 X 11, 27 pages, 21 illustrations, 1986
#200102-Softcover only-$2.50
CRS
Congressional Research Service
The Library of Congress
Washington, D.C. 20540
August 1990
INFO PACK READING GUIDE
IP 339C
Constitution of the United States:
Selected References, 1986-1990
Tangela G. Roe
Bibliographer, Government and Law
Library Services Division
This bibliography contains sources discussing the history, development, and
application of the U.S. Constitution and the Bill of Rights. These references have been
selected from the Public Policy Literature Data Base, created by the Library Services
Division. Congressional users may order the full text of items by calling 707-5700.
Other users should consult their local library.
Bicentennial commemoration of the Bill of Rights. American criminal law review, V. 26,
spring 1989: 1259-1658.
LRS89-12750
Partial contents.-The original purpose of the Bill of Rights: James Madison and
the founders' search for a workable balance between Federal and State power, by
Arthur E. Wilmarth, Jr.--Collected essays on the origination and development of the
Bill of Rights.
The Bill of Rights. This Constitution, no. 18, spring-summer 1988: 4-37, 46-57.
LRS88-7466
Partial contents.-James Madison and the Bill of Rights, by Jack N.
Rakove.--George Mason's "objections" and the Bill of Rights, by Robert A.
Rutland.--The Bill of Rights: protector of minorities and dissenters, by Norman
Dorsen.--Slavery at the Constitutional Convention, by Paul Finkelman.--Religion and
the Constitution, by A. James Reichley.
The Blessings of liberty: bicentennial lectures at the National Archives. [Edited by]
Robert S. Peck and Ralph S. Pollock. [Chicago] American Bar Association [1987]
178 p.
LRS87-12503
Partial contents.--Why celebrate the Constitution today?, by A. E. Dick
Howard.--The influence of British political thought on the American Constitution:
Magna Carta in context, by J. G. A. Pocock.--Launching the ship of state: the First
Federal Congress and the Constitution, by Charlene N. Bickford.--The Presidency in
the constitutional convention, by R. Gordon Hoxie.--The Civil War: crisis of the
Constitution, by Herman Belz.--Women and the Constitution, by Virginia C.
Purdy.--A time to celebrate and reflect, by Strom Thurmond.
CRS-2
Bowen, Ezra.
Constitutional Convention, Philadelphia, 1787: 'Something must be done, or we shall
disappoint not only America, but the whole world.' Smithsonian, V. 18, July 1987:
32-43.
LRS87-6042
Summarizes the proceedings of the Constitutional Convention.
Burger, Warren E.
"A republic, if you can keep it": a bicentennial commentary. Presidential studies
quarterly, V. 18, summer 1988: 467-473.
LRS88-14845
Documents events leading to the Constitutional Convention telling of
ratification of the Constitution and the beginning of the U.S. Government with the
inauguration of Washington in 1789.
Conrad, Stephen A.
Metaphor and imagination in James Wilson's theory of Federal union. Law and
social inquiry, V. 13, no. 1, 1988: 3-70.
LRS88-8480
"American federalism is nothing more--and nothing less--than a metaphor. This
was how James Wilson, the most prominent lawyer at the Philadelphia Convention,
came to approach the novel problem of understanding and conveying what federalism
in a modern republic should mean."
The Constitution. Wilson quarterly, V. 11, spring 1987: 96-133, 136-157.
LRS87-2964
In three separate articles, Peter Onuf, Jack Rakove, and A. E. Dick Howard
"variously recall the troubles of the young Republic that spurred the Founding
Fathers to frame a new charter, describe the debates in Philadelphia, and trace the
Constitution's evolution through amendment and judicial interpretation over the
next 200 years.
The Constitution and American life: a special issue. Journal of American history, V. 74,
Dec. 1987: whole issue (661-1034 p.)
LRS87-11205
Partial contents.--The Constitution and United States foreign policy: an
interpretation, by Walter LaFeber.--Wrestling toward the dawn: the Afro-American
Freedom Movement and the changing Constitution, by Vincent Gordon
Harding.--Outgrowing the compact of the fathers: equal rights, woman suffrage, and
the United States Constitution, 1820-1878, by Ellen Carol DuBois.--Labor, liberty,
and law: trade unionism and the problem of the American Constitutional order, by
Leon Fink.--We, the family: constitutional rights and American families, by Martha
Minow.
Debate over constitutional interpretation. USA today (magazine), V. 115, Sept. 1986:
36-45.
LRS86-8225
Contents.--Interpreting the Constitution, by Edwin Meese.-Guaranteeing
individual liberty, by William J. Brennan, Jr.--The Supreme Court's dilemma and
defense, by Raymond Polin.
CRS-3
The Future of the Constitution. This Constitution, no. 18, spring-summer 1988: 58-69.
LRS88-7432
Partial contents.--Constitutional understanding and American culture: future
prospects in historical perspective, by Michael Kammen.--Our constitutional future,
by James Oliver Horton.
Hutson, James H.
The birth of the Bill of Rights: the state of current scholarship. Prologue, V. 20,
fall 1988: 142-161.
LRS88-11496
Reviews the past 30 years of historical research on the Bill of Rights.
The creation of the Constitution: the integrity of the documentary record. Texas
law review, V. 65, Nov. 1986: 1-39.
LRS86-13193
Chief of the Manuscript Division of the Library of Congress examines the
principal primary sources relating to the Constitution's origins--the Journal of the
Constitutional Convention, kept by its secretary, William Jackson; the notes of
delegate Robert Yates; the debates in the State ratifying conventions; the notes of
James Madison; and the debates on the Bill of Rights in the House during the First
Congress--and finds all of them "to be defective in varying degrees."
Jasanoff, Sheila.
Biology and the Bill of Rights: can science reframe the Constitution? American
journal of law & medicine, V. 13, no. 2-3, 1987: 249-289.
LRS87-14815
"This paper undertakes a preliminary inquiry into the constitutional issues that
are likely to arise as a consequence of foreseeable developments in the biological
sciences and how they might be resolved in the light of prevailing patterns of
constitutional adjudication."
Jordon, Jerry L.
NABE presidential address: the economic role of government. Business economics,
V. 23, Jan. 1988: 14-20.
LRS88-352
The president of the National Association of Business Economists contends that
"the U.S. Constitution contains a substantial body of economic doctrine
The
government has not been successful in regulating economic activity, especially in the
area of macroeconomic stabilization. Economists should play a major role in the
current debate about the Constitution's meaning in this bicentennial year."
Kaminski, John P.
Ratifying the new Constitution. This Constitution, no. 17, winter 1987: 25-33.
LRS87-12800
"Narrates the course of ratification, using documents from that struggle. Many
states ratified making it clear at the same time that they expected their concerns to
be met promptly by amendments to the new constitution."
Kickingbird, Kirke. Kickingbird, Lynn Shelby.
Indians and the U.S. Constitution: a forgotten legacy. Vienna, Va., Institute for the
Development of Indian Law, 1987. 36 p.
LRS87-12376
History of "the impact Indian people had on the newcomers and on the United
States Constitution, and the impact the Constitution has had on the Indian nations."
CRS-4
Kristol, Irving.
"The spirit of '87". Public interest, no. 86, winter 1987: 3-9.
LRS87-8021
Discusses the influence of Protestantism on the U.S. Constitution, exploring
how "the Protestant-American impulse to better one's condition" contributes to
Americans' ideas about government and economic progress.
Landau, Martin.
A self-correcting system: the Constitution of the United States. This Constitution,
no. 11, summer 1986: 4-10.
LRS86-14477
"Describes how the organization of government established by the Constitution
ensures a reliable and stable government through the distribution of powers among
different branches of government."
The Legacy of the Constitution: an assessment for the third century. Edited by William
S. Livingston. [Austin, Tex.] Lyndon B. Johnson School of Public Affairs, 1987.
148 p.
LRS87-14060
"Contributors include former Assistant Attorney General William Bradford
Reynolds, head of the U.S. Justice Department's Civil Rights Division; former U.S.
Congresswoman Barbara Jordan; and former U.S. Congressman Richard W. Bolling.
Marshall, Thurgood.
Reflections on the bicentennial of the United States Constitution. Harvard law
review, V. 101, Nov. 1987: 1-5.
LRS87-9550
Text of a speech delivered by Justice Thurgood Marshall. He argues that
"when contemporary Americans cite "The Constitution," they invoke a concept that is
vastly different from what the framers barely began to construct two centuries ago
While the Union survived the civil war, the Constitution did not. In its place
arose a new, more promising basis for justice and equality, the fourteenth
amendment, ensuring protection of the life, liberty, and property of all persons."
McGuire, Robert A. Ohsfeldt, Robert L.
Self-interest, agency theory, and political voting behavior: the ratification of the
United States Constitution. American economic review, V. 79, Mar. 1989: 219-234.
LRS89-6059
Argues "that delegates to the state ratifying assemblies were insulated from
their constituents and, thus, could more easily vote their personal economic interests
as well as vote their constituents' interests."
Meese, Edwin III.
The moral foundations of republican government. Imprimis, V. 15, Sept. 1986: 1-6.
LRS86-10866
"In this essay, [former] Attorney General Edwin Meese takes issue with the
legal realists. He carefully recounts the reasons why the Constitution was written
and offers an explanation for its enduring importance in our history. His remarks
imply that the authority of the Constitution ought to be restored, and that
amendments ought to be put before the states according to the provisions of Article
V, not simply enacted in the form of judicial decisions."
CRS-5
The Miracle at Philadelphia: lectures & debates. Utah law review, V. 1987, no. 4, 1988:
whole issue (769-994 p.)
LRS88-2538
Partial contents.-Introduction, by Warren E. Burger.--Foreword: the appeal of
originalism, by Earl Maltz.--The miracle of Philadelphia, by Richard P.
McCormick.--Freedom and the Constitution: a second century appraisal, by Henry J.
Abraham.--Still adequate for the twentieth century?: a debate, by Orrin G. Hatch
and James MacGregor Burns.
Mitchell, Ralph.
CQ's guide to the U.S. Constitution: history, text, index, glossary. Washington,
Congressional Quarterly, 1986. 108 p.
LRS86-7444
"An index that allows students and other persons to find their way quickly to
the constitutional provision of interest to them. To this, [the author] has added a
glossary that will help readers understand the terms used."
A More perfect union: essays on the Constitution. Proceedings of the American
Philosophical Society, V. 131, Sept. 1987: whole issue (225-340 p.)
LRS87-14062
Partial contents.--Reflections on the First Amendment: the evolution of the
American jurisprudence of free expression, by Geoffrey R. Stone.--The United States
Constitution as social compact, by Louis Henkin.--Franklin, Washington, and a new
nation, by John Shy.--"A vehicle of life": the Founders' intentions and American
perceptions of their living Constitution, by Michael Kammen.
The New face of the American founding: a symposium. Social science quarterly, V. 68,
Dec. 1987: 653-744.
LRS87-12836
Partial contents.--The assumptions of the founders in 1787, by Robert
Middlekauff.--The changing view of the founding and a new perspective on American
political theory, by Donald S. Lutz.--The American constitutional order after two
centuries: concluding reflections, by Ellis Sandoz.
Nore, Ellen.
Charles A. Beard's economic interpretation of the origins of the Constitution. This
Constitution, no. 17, winter 1987: 39-44.
LRS87-12799
"Offers a view of one of the most well-known scholars of the history of the
Constitution, Charles A. Beard, whose [1913] thesis about the economic interests of
the founders has provoked debate among historians for decades."
Pangle, Thomas L.
The Constitution's human vision. Public interest, no. 86, winter 1987: 77-90.
LRS87-8020
Explores the moral aims of the Founders as they constructed the Constitution.
Principles of the constitutional order: the ratification debates. Robert L. Utley, Jr.,
editor. Lanham, Md., University Press of America, 1989. 187 p.
LRS89-3747
Partial contents.--The Constitutional Convention and the founding principles, by
Wilson Carey McWilliams and Dennis B. Hale.--On understanding the Constitution: a
historian's reflections (and dissent), by Jack Rakove.-The achievement of the
Constitution, as viewed by the leading Federalists, by Thomas Pangle.--The
anti-Federalists and the Constitution, by Murray Dry.--"The reasoning spirit of it":
the President, the separation of powers, and the laws of reason, by Hadley Arkes.
CRS-6
Research & Forecasts, inc.
The American public's knowledge of the U.S. Constitution: a national survey of
public awareness and personal opinion: a Hearst report. New York, Hearst
Corporation, 1987. 39 p.
LRS87-13747
"The Hearst survey had four objectives: (1) to measure the American public's
knowledge of the history and purpose of the original U.S. Constitution; (2) to assess
the public's understanding of constitutional authority as it applies to the American
system of government; (3) to determine how well informed Americans are about
personal liberties and individual rights; and (4) to document public opinion on
certain contemporary issues."
The Shaping of America: 200 years of the Constitution. World & I, V. 2, Sept. 1987:
14-115.
LRS87-12564
Partial contents.--A statement on the Bicentennial, By Ronald Reagan.--To
secure the blessings of liberty: the making of the Constitution, by Forrest
McDonald.--The organic and moral elements in the American Constitution, by Paul
Johnson.--Republicanism and the founding of America, by Marcus Cunliffe.-Judicial
review and the Supreme Court, by Walter Berns.--Failed amendments to the
Constitution, by Morton Keller.
Soldier-statesmen of the Constitution: a bicentennial series. Washington, Center of
Military History, U.S. Army, 1986-1987. 184 p. in 23 V. (CMH Pub. 71-1 - 71-23)
LRS86-13443
Series of 8-page pamphlets with individual biographies of the 22 Revolutionary
War veterans who signed the Constitution in 1787, along with the convention's
secretary, William Jackson.
Special issue on the public debate over the Constitution. This Constitution, no. 16, fall
1987: 4-21.
LRS87-12840
Contents.--The Federalist, by Jean Yarbrough.--The constitutional thought of the
Anti-Federalists, by Murray Dry.--The Constitution as myth and symbol, by Milton
M. Klein.
Warren-Findley, Jannelle.
The Federal Constitution, Boys, and Liberty Forever: music and the Constitution.
This Constitution, no. 16, fall 1987: 22-31.
LRS87-12802
"Reproduces the lyrics of the eighteenth-century songs of the Constitution,
giving us a new perspective on the debate and the celebration."
We the people: a celebration of the bicentennial of the United States Constitution.
Howard law journal, V. 30, no. 4, 1987: whole issue (p. 623-962)
LRS87-13123
Thirty-one articles, comments, and lectures in celebration of the bicentennial of
the Constitution, covering the broad topics of an Afro-American perspective, leader-
ship, education, fundamental rights, and contemporary decisions.
IP 162U (GO)
SOURCE:
World Book Encyclopedia, 1990, Volume 20, pp. 128-137.
128 United States, Government of the
US Dept. of State " ORLD BOOK onoio
The Declaration of Independence and the United States Constitution provide the basis of
the U.S. government. These documents are displayed in the National Archives Building in Wash-
ington, D.C The Declaration stands in an upright case above the Constitution.
United States government
United States, Government of the. The govern-
United States military forces stationed in many parts
ment of the United States represents, serves. and pro-
of the world support American policy and help preserve
tects the American people at home and in foreign coun-
peace. Representatives of the government work in inter-
tries. From the nation's capital in Washington. D.C., the
national organizations, provide technical assistance, and
U.S. government's activities and influence reach every
negotiate with other governments. Millions of civil serv-
part of the world.
ice employees and other workers at home and abroad
The three branches of the United States govern-
carry out the programs of the government.
ment-executive, legislative, and judicial-are usually
The United States government shares governmental
represented by the President, Congress, and the Su-
powers with the states under the federal system estab-
preme Court. Generally speaking, the President enforces
lished by the United States Constitution. The national
the laws that Congress passes, and the Supreme Court
governments of most other countries are unitary (cen-
interprets these laws if any question arises.
tralized). They have final authority in all matters, and
© 1990 World Book, Inc. Reproduced by the Library of Congress, Congressional Research Service, with
the permission of the copyright claimant.
United States, Government of the
129
frant only limited powers to state and local govern-
cation. It has the power to declare war and to conclude
ments.
peace pacts. It maintains the armed forces and can drait
Government in the United States operates on three
citizens for military service. It admits new states into the
levels: national, state, and local. The federal government
union. It governs the District of Columbia and the terri-
in Washington cannot abolish the states or rearrange
tories. including American Samoa, Guam, and the Virgin
their boundaries. It can exercise only powers that are
Islands.
delegated or implied by the Constitution. The states ex-
The United States seeks not only to govern, but also
ercise powers reserved to them or not denied them by
to protect the liberty of the states-and the people. The
the Constitution. In some areas, the federal and state
Bill of Rights in the Constitution guarantees that all peo-
governments have concurrent powers. That is, they both
ple shall have freedom of speech and of religion, free-
have the right to exercise authority. The American judi-
dom of the press, the right of assembly, and freedom
tial system keeps the federal and state governments
from arbitrary interference by the federal government. It
vithin their proper fields of power.
guarantees a person freedom from arbitrary arrest and
The United States government makes and enforces
imprisonment. The Bill of Rights also guarantees the
laws, collects taxes, provides services for the people,
right to trial by jury and justice in the federal courts. The
protects individuals and their property, and works for
United States government acts to see that no state de-
national and international security. But it is noted for the
prives any person of life, liberty, or property without
way it encourages the people to take part in govern-
due process of law, or denies equal protection of the
ment, seeks to protect the rights of the people from the
law. See Bill of rights.
government itself, and assures the self-government of
The executive branch
the states. Abraham Lincoln described the United States
government in his Gettysburg Address as being "of the
The executive branch of the United States govern-
people, by the people, for the people."
ment consists of (1) the Executive Office of the President,
For a description of the United States, its history, and
(2) the executive departments, and (3) the independent
is Constitution, see United States; United States, His-
agencies.
tory of the: Constitution of the United States.
The President of the United States is the nation's
chief executive and chief of state. The President lives in
Government in American life
the White House in Washington, D.C., and has offices
The United States government. through its activities,
there.
services, and authority, directly affects the lives of the
As chief executive, the President has the responsibili-
American people in many ways. It collects taxes and cus-
ties of enforcing federal laws and appointing and re-
toms duties to finance government work. It borrows
moving high federal officials. The President commands
money and issues bonds. It coins money and prints cur-
the armed forces, conducts foreign affairs, and recom-
rency. It establishes uniform weights and measures. It is-
mends laws to Congress. The President also appoints
'ues patents and copyrights. The United States govern-
American representatives to international organizations
ent controis immigration and emigration, and natural-
and to diplomatic missions in other lands. As chief of
izes noncitizens. It operates the postal system, and
state, the President performs many ceremonial duties.
builds roads and highways. It manages a social security
Elected by the people to hold office-for a four-year term,
system. It has powers to regulate agriculture, business,
the President cannot be elected to more than two terms.
and labor through its authority to regulate interstate
The Executive Office of the President includes: (1) the
commerce. The United States government negotiates
White House Office, (2) the Office of Management and
with other governments, and participates in interna-
Budget, (3) the National Security Council, (4) the Office of
tional organizations to promote peace, health, and edu-
Policy Development, (5) the Council of Economic Advis-
Symbols of the United
States include the American
flag and the Great Seal. The
eagle holds an olive branch
and arrows, symbolizing a de-
sire for peace but the ability
to wage war. The reverse side
bears the Eye of Providence,
representing God, and a pyra-
mid dated 1776.
Stacy Pick. © Lensmen
The United States Capitol in Washington, D.C. is where Con-
gress meets to make laws. The House of Representatives uses
the wing at the left, and the Senate the one at the right.
130 United States, Government of the
ers, (6) the Office of the United States Trade Representa-
sides over the Senate. The Senate has certain exclusive
tive, (7) the Office of Administration, (8) the Council on
powers. It alone can sit as a court of impeachment to try
Environmental Quality, (9) the Office of the Vice Presi-
federal officials impeached by the House of Representa-
dent, and (10) the Office of Science and Technology Poi-
tives. It alone has the power to approve the President's
icy. See President of the United States.
nominations for major federal offices. Any treaty made
Executive departments conduct the administration
by the United States is subject to the Senate's approval.
of the national government. These 14 departments are:
See Senate.
(1) State, (2) Treasury, (3) Defense, (4) Justice, (5) Interior,
The House of Representatives consists of 435
(6) Agriculture, (7) Commerce, (8) Labor, (9) Health and
members. A state's representation is based on popula-
Human Services, (10) Housing and Urban Development,
tion. It ranges from California's 45 members to one each
(11) Transportation, (12) Energy, (13) Education, and (14)
from Alaska, Delaware, North Dakota, South Dakota,
Veterans Affairs. Department heads are appointed by
Vermont, and Wyoming. The number of representatives
the President, with the approval of the Senate. They
from a state changes as its population changes. Reap-
form the Cabinet (see Cabinet). Thirteen are called sec-
portionment takes place every 10 years, after each na-
retaries. The attorney general heads the Department of
tional census in a year ending with zero. Only the House
Justice.
can bring charges of impeachment against high federal
The typical executive department has a deputy or un-
officials. It alone can initiate tax bills. See House of Rep-
dersecretary and two or more assistant secretaries. The
resentatives.
President appoints these officials, and may remove them
without giving any reason. High officials usually resign
The judicial branch
when a new President takes office.
The Supreme Court of the United States is the high-
Generally, each executive department is divided into
est court in the land. It has a chief justice and eight asso-
bureaus, bureaus into divisions, divisions into branches,
ciate justices. The President appoints all justices with the
branches into sections, and sections into units. Most of-
approval of the Senate. The justices hold office for life.
ficials below the highest level serve under civil service
See Supreme Court of the United States.
appointments (see Civil servicei. All executive depart-
Other federal courts. About 95 federal district
ments have headquarters in Washington, but about 90
courts are located in various cities. Above the district
per cent of the employees work in field services (activi-
courts are 13 federal courts of appeals. often called cir-
ties that are not a part of headquarters).
cuit courts. Above the courts of appeals is the Supreme
Independent agencies developed with the growth
Court Decisions of a district court may be appealed to
of government regulation. These agencies operate in
an appeals court, and from the appeals court to the Su-
many fields, including aeronautics and space, nuclear
preme Court Federal courts decide cases that involve
energy, banking and finance, civil service, communica-
the Constitution and federal laws. Judges of these courts
tions, farm credit, home loans, information services, in-
hold office for life. The President appoints them with the
terstate commerce, labor relations, railroad retirement,
approval of the Senate. See Court.
science, securities and exchange, selective service,
small business, tariffs, and international trade. Adminis-
Principies of American government
trators or directors head most of the agencies. The regu-
Separation of powers. The Constitution divides the
latory agencies, such as the Interstate Commerce Com-
powers of the United States government among the ex-
mission, are headed by people of equal rank, although
ecutive, legislative, and judicial branches. Each branch is
one may serve as chairperson. The President of the
generally independent of the other two, and has the au-
United States appoints the members of these agencies
thority to check or balance the others. Checks and bal-
with Senate approval, and must state reasons for remov-
ances give each branch some powers that affect the
ing them.
other two. For example, Congress holds a check over
The legislative branch
the President with its authority to make government ap-
propriations. It checks the courts with its powers to or-
The legislative branch of the United States govern-
ganize courts and create rules for their procedures. One
ment includes Congress, which consists of the Senate
of the President's checks on Congress is the power to
and the House of Representatives. This branch also in-
veto bills. The President influences the courts by the
cludes eight administrative agencies: (1) the Architect of
kind of judges he or she appoints. The courts can check
the Capitol, (2) the Congressional Budget Office, (3) the
the President and Congress by declaring executive or-
Copyright Royalty Tribunal, (4) the General Accounting
ders and legislative acts unconstitutional. See Checks
Office, (5) the Government Printing Office, (6) the Library
and balances.
of Congress, (7) the Office of Technology Assessment,
A written constitution provides the basis of govern-
and (8) the United States Botanic Garden.
ment in the United States. The Constitution divides pow-
The Senate and the House of Representatives meet in
ers and duties between the federal and state govern-
separate chambers in the Capitol in Washington, D.C.
ments. In addition, it specifies the powers of each
Congress makes, repeals, and amends federal laws. In
branch of the national government. A written constitu-
addition, Congress levies federal taxes and appropriates
tion is a unique American contribution. British royal
funds for the government. See Congress of the United
governors had ruled the colonies in America under
States.
written charters granted by the monarch. However, the
The Senate has 100 members. Each state, regardless
idea of a written constitution as the basic law of an inde-
of size or population, has two senators, who serve six-
pendent country was new.
year terms. The Vice President of the United States pre-
The Constitution not only grants powers, but also
United States, Government of the 131
How a bill becomes law
The drawings on this page and the next three pages show how federal laws are enacted in the
in the United States
United States. Thousands of bills are introduced during each Congress, which lasts two years, and
hundreds become law. All bills not enacted by the end of the two-year period are killed.
WORLD BOOK illustrations by David Cunningham
Ideas for new laws come from many sources. The President, members of Congress. and other
government officials may propose laws. Suggestions also come from individual citizens; special-
interest groups, such as farmers, industry, and labor, newspaper editorials; and public protests.
Congressional committees, in addition to lawyers who represent special-interest groups, actually
write most bills and put them into proper legal form. Specialists called legislative counsels in both
the Senate and House of Representatives also help prepare many bills for congressional action.
FIGHT AIR POLL TION
Individual citizens
Public protests
Newspaper editorials
0
0000
00000e00000
Special-interest groups
The President
Members of Congress and
other government officials.
Each bill must be sponsored by a member of the House or Senate. Any number of senators
or representatives may co-sponsor a bill A bill may originate in either house of Congress unless it
deals with taxes or spending. The Constitution provides that all such bills must be introduced in
the House. The tradition that money bills must begin in the lower house came from England.
There, the lower house-the House of Commons-is more likely to reflect the people's wishes be-
cause the people elect its members. They do not elect the upper house, the House of Lords. The
rule has little meaning in the United States because voters elect both houses.
House of
Senate-
Representatives.
132 United States, Government of the
How a bill goes
The drawings on this page and the next show the normal path of a bill introduced in the House of
through Congress
Representatives. The process is the same for a bill introduced in the Senate, except that the House
action comes after the Senate action. A bill may die at almost any stage of the process it no action
is taken on it. A majority of the bills introduced in Congress fail and never become law.
Introduction in the House. A sponsor introduces a bill by giving it to the
Assignment to committee. The
clerk of the House or placing it in a box called the hopper. The clerk reads the
speaker of the House assigns the bill
title of the bill into the Congressional Record in a procedure called the first
to a committee for study. The House
reading. The Government Printing Office prints the bill and distributes copies.
has about 20 standing permanent)
committees, each with jurisdiction
over bills in a certain area.
BILL
The committee studies the bill and hears testimony from experts and other
The bill goes on a calendar, a
interested persons. In some cases, a subcommittee conducts the study. The
list of bills awaiting action. The
committee may release the bill with a recommendation to pass it, revise the bill
Rules Committee may call for
and release it, or lay it aside so that the House cannot vote on it. Releasing the
quick action on the bill, limit de-
bill is called reporting it out, and laying it aside is called tabling.
bate, and limit or prohibit amend-
ments. Otherwise, a bill might
never reach the House tloor.
Consideration by the House
begins with a second reading of
the bill, the only complete read-
ing in most cases. A third reading,
by title only, comes after any
amendments have been added. If
the bill passes by a simple major-
Introduction in the Senate. To introduce a bill, a
ity lone more than half the votes),
senator must be recognized by the presiding officer
it goes to the Senate.
and announce the introduction of the bill. A bill that
has passed either house of Congress is sometimes
called an act, but the term usually means legislation
that has passed both houses and become law.
ACT
25
United States, Government of the 133
The bill goes to the Senate to
Committee action. The committee
Assignment to committee. The
await its turn. Bills normally reach
or one of its subcommittees studies
Vice President of the United States,
the Senate floor in the order that
the bill and may hold hearings. The
who is the presiding officer of the
they come from committee. But if a
committee may approve the bill as
Senate, assigns the proposed law to
bill is urgent, the leaders of the ma-
it stands, revise the bill, or table it.
a committee for study. The Senate
jority party might push it ahead.
has about 15 standing committees.
The Senate considers the bill.
Senators can debate a bill indefi-
nitely, unless they vote to limit dis-
cussion. When there is no further
debate, the Senate votes. Most bills
must have a simple majority to pass.
A conference committee made up of members of
both houses works out any differences between the
House and Senate versions of the bill. The revised bill
is sent back to both houses for their final approval.
The bill is printed by the Govern-
The Speaker of the House signs the enrolled bill, and then the
ment Printing Office in a process
Vice President signs it. Finally, Congress sends the proposed new
called enrolling: The clerk of the
legislation to the White House for consideration by the President.
house of Congress that originated
the bill certifies the final version.
ACT
134 United States, Government of the
Action by the President
A bill passed by Congress goes to the President, who has 10 days-not including Sundays-to sign
or veto it. The President may also let a bill become law by letting 10 days pass without acting.
4
0
0
0
0
0
0
0
0
0
0000
OLA
00000
Approval. After approving a bill,
Veto. A vetoed bill must be re-
No action. The President might not
the President signs it, dates it, and
turned to Congress with an expla-
veto the bill but may fail to sign it to
often writes approved on it.
nation of the President's objections.
show disapproval of some parts.
Reconsideration by Congress. If
Ten days pass. If the President
two-thirds of those members pres-
holds the bill for 10 days-exclud-
ent approve the vetoed bill, it be-
ing Sundays-while Congress is in
comes law despite the veto.
session, it becomes law without the
signature of the chief executive. A
bill that reaches the President fewer
than 10 days-excluding Sundays-
before Congress adjourns cannot
become law without the President's
signature. If the President fails to
sign the proposed law, it dies. This
procedure is called a pocket veta:
The bill becomes law and is given
a number that indicates which Con-
gress passed it. For example, alaw
enacted by the 95th Congress might
be designated Public Law 95-250.
LAW
United States, Government of the 135
limits them. However, it does not answer all questions.
Federal and state laws regulate elections and the
For example, who in the government is to say that a
qualifications of voters. Most states hold primary elec-
state is trying to use a power that belongs to the federal
tions in which party members nominate candidates for
government? Who is to say that the federal government
state and local offices. Some states use primary elec-
is attempting to exercise a power that belongs to the
tions to nominate candidates for Congress. National po-
states? Who is to say that the President, Congress, or the
litical conventions nominate candidates for President
Supreme Court are acting unconstitutionally?
and Vice President. See Political convention; Primary
Judicial review is the method used to answer the
election.
basic question: Who is to say what the Constitution
Presidential. elections are held to select electors to
means in cases of dispute? Courts have the power to de-
the Electoral College (see Electoral College). Each state
clare legislative acts and executive orders (1) constitu-
has as many electors as the total of its senators and rep-
tional, or legal; or (2) unconstitutional, or illegal.
resentatives in Congress. The District of Columbia has
Judicial review confines the state and national govern-
three electors. The electors usually vote for the candi-
ments within their constitutional limits. Generally, the
date who receives the most votes in their state. A candi-
state courts interpret the state constitutions, and federal
date for President must receive a majority of the elec-
courts interpret the U.S. Constitution. The Supreme
toral votes to be elected.
Court can declare unconstitutional executive orders and
legislative acts of the federal or the state governments.
The development of American government
The Constitution clearly states that it and all federal laws
English background. The United States inherited
and treaties are the supreme law of the land.
many government practices from the English rulers of
Popular sovereignty allows the American people to
colonial days. In England, the people, particularly in the
change the Constitution. Congress initiates amendments
middle classes, had fought their kings to win the right to
to the Constitution. A proposed amendment must have
representative government. They had also won civil
the approval of two-thirds of both the Senate and the
rights and liberties that would protect them and their
House of Representatives. It then goes to the states for
property from arbitrary acts of government.
their approval. Congress may call a national convention
The English colonists brought with them the ideas of
to propose amendments, if two-thirds of the state legis-
representative government and civil liberties when they
latures request it. The amendment becomes a part of the
came to America. American frontier life produced much
Constitution after legislatures or conventions in three-
individual independence and self-reliance because of
fourths of the states have ratified it. The American peo-
the equal opportunity offered each person. Representa-
ple may adopt an entirely new constitution by calling a
tive government and many civil liberties became even
new constitutional convention, like the one at Philadel-
broader than they had been in Great Britain.
phia in 1787. If such a convention were held, the consti-
Early American government. The colonies became
tution it adopted would be sent to the states for ap-
states after the Declaration of Independence in 1776.
proval. It would become effective when ratified in the
They founded the first independent general government
same way as an amendment.
in the United States under the Articles of Confederation
(see Articles of Confederation Under the Articles, the
Political parties and elections
13 states guarded their individual powers so strictly that
The American people have a strong voice in their
they failed to give Congress the power to tax or to rega-
government. They can exercise their democratic rights
late interstate and foreign commerce. Congress could
by voting in national, state, and local elections, and by
not even create an army without asking the state govern-
working in political parties and campaigns.
ments for men and money. Such leaders as George
The two-party system. The United States has two
Washington, Benjamin Franklin, James Madison, and Al-
major political parties, the Democratic and the Republi-
exander Hamilton feared that the weak national govern-
can. Both parties receive support from individuals and
ment would collapse. This concern led to the Constitu-
groups in all parts of the country. Members of these two
tional Convention of 1.787 in Philadelphia. There, the
parties hold aimost all the offices in the national, state,
delegates wrote the Constitution of the United States.
and local governments.
The document went into effect on June 21, 1788, when
Minor political parties of the United States rarely
New Hampshire became the ninth state to ratify it.
elect candidates to government offices. They serve
The Constitution gave the national government more
chiefly to call attention to problems that the major par-
powers than it had possessed under the Articles of Con-
ties may have neglected. Often, one or both of the major
federation. The federal government exercises these
parties may then attempt to solve such a problem. Then
powers directly over the people, not through the state
the third party, which brought attention to the problem,
governments, as it had done under the Articles.
may disappear. See Political party.
The growth of American government. Congress
National elections to elect a President and Vice
gave the western territories of the United States local
President are held every four years on the first Tuesday
representative government as they grew in population.
after the first Monday in November. All members of the
The Northwest Ordinance, passed under the Articles of
House of Representatives and about one-third of the
Confederation in 1787, became a model for future terri-
members of the Senate are elected at this same time.
torial governments (see Northwest Ordinance). After a
Between the presidential elections, all of the representa-
territory had enough people, Congress admitted it into
tives and another one-third of the senators are elected.
the Union as a state.
This election is held on the same day in November in
The United States purchased Alaska in 1867, and in
even-numbered years.
1898 it acquired Puerto Rico, Hawaii, and the Philip-
i
136 United States, Government of the
Marviance Historical Society
Three Lions
Bettmann Archive
3 Congress Hall.
1 Carpenters Hall.
2 Independence Hall. Philadelphia
Baltimore (1776-1777)
Philaoelphia (1774)
11775-1776; 1777: 1778-1783)
Meeting places of
The earliest American Congresses
American Congresses
met in the buildings shown here.
The Continental Congress first met
in 1774 in Carpenters' Hall, Philadel-
phia. In 1776, Philadelphia's Inde-
4 Old Court House
pendence Hall became the first Cap-
Lancaster, Pa. (1777)
itol of the new nation. In 1800, the
Congress of the United States
Historical Society of Pennsvivania
moved into the first Capitol in Wash-
ington, D.C.
N.Y.
Pennsylvania
Princetsa<
New York City
9
York
Laneaster
6
Philadelphie
North Atlantic
OOD
Ocean
Baltimers
Hist. SOC 01 Pa.
W. Va:
New Jersey
10 Congress Hall,
Ancession
Washington :
Philadelphia
D.C.
Md.
Det
1790-1800
o
100 Miles
Historical Suciety of York County
Virginia-
0
100 Kilometers
5 York County Court House
York. Pa. 11777-1778)
WORLD BOOK map
Schoenield Collection, Three Lions
First Trenton National Bank
Culver Service
Benmann Archive
9 Federal Hall.
8 French Arms Tavern,
7 State House,
6 Nassau Hall
New York City (1785-1790)
Trenton. N.I. (1784)
Annapolis, Md. (1783-1784)
Princeton. N.I. (1783)
pines. At first, these territories did not receive as demo-
to provide themselves with services. such as social se-
cratic and representative a government as the other ter-
curity, made possible by modern wealth and science. As
ritories within the borders of the United States. But the
a result, the federal government has grown even faster
Philippines gained full independence in 1946. Puerto
than the state and local governments.
Rico became a commonwealth in 1952. Alaska and Ha-
Many people object to the expansion of federal au-
waii became the 49th and 50th states in 1959.
thority, particularly over state and local matters. Others
Problems of government. Since 1789, all govern-
insist that public interest demands federal control in
ments-national, state, and local-have taken on more
cases that involve more than one state. When conflicts
powers and duties. They have been forced to do so by
arise, the courts must decide how to balance states'
the increase in population, the growth of cities and
rights with the needs of the nation.
William C. Carleton
towns, the development of industries, and the growth of
Related articles in World Book include:
transportation and communications. Problems that were
Executive departments
once local, such as conservation and transportation,
Agriculture, Department of
Defense, Department of
have become national. The belief has developed that
Commerce, Department of
Education, Department of
people should use government and other organizations
United States, Government of the
137
Energy, Department of
Labor, Department of
Tariff
Voice of America
Health and Human Services,
State, Department of
Taxation
Voting
Department of
Transportation, Depart-
Territory
Washington, D.C.
Housing and Urban Develop-
ment of
United States, History of the
White House
ment, Department of
Treasury, Department of the
United States capitals
Yankee
Interior, Department of the
Veterans' Affairs, Department
Veto
Justice, Department of
of
Outline
Executive office of the President
1. Government in American life
Economic Advisers, Council of
National Security Council
II. The executive branch
Management and Budget,
President of the United States
A. The President
Office of
B. Executive departments
Independent agencies
C Independent agencies
III. The legislative branch
Civil Rights, Commission on
Indian Claims Commission
A. The Senate
Consumer Product Safety
International Trade Commis-
B. The House of Representatives
Commission
sion, U.S.
IV. The judicial branch
Environmental Protection
Interstate Commerce Com-
A. The Supreme Court
B. Other federal courts
Agency
mission
V. Principles of American government
Equal Employment Opportunity
National Aeronautics and
A. Separation of powers
C Judicial review
Commission
Space Administration
B. A written constitution
D. Popular sovereignty
Export-import Bank of the
National Foundation on the
VI. Political parties and elections
United States
Arts and the Humanities
A. The two-party system
Federal Communications
National Labor Relations
B. National elections
Commission
Board
VIL The development of American government
Federal Deposit Insurance Cor-
National Mediation Board
A. English background
poration
National Science Foundation
B. Early American government
Federal Election Commission
Nuclear Regulatory Commis-
C The growth of American government
Federal Home Loan Bank
sion
D. Problems of government
Board
Postal Service, U.S.
ederal Maritime Commission
Railroad Retirement Board
Questions
Federal Mediation and Concilia-
Securities and Exchange Com-
How does the United States government differ from most other
tion Service
mission
national governments?
Federal Reserve System
Small Business Admini-
What are the three branches of the United States government?
Federal Trade Commission
stration
What is popular sovereignty? Judicial review? Why are they im-
General Services Admini-
Tax Court, United States
portant in the United States government?
stration
Tennessee Valley Authority
How does each branch of the government exercise its powers of
checks and balances?
Judicial branch
How does the United States Constitution divide powers among
Court of Appeals
Court of Military Appeals
the national and state governments?
Court of Claims
District Court
What is an independent agency? What does it do?
Court of International Trade,
Supreme Court of the United
How did the ideas of representative government develop in the
United States
States
colonies?
What steps must be taken to amend the United States Constitu-
Legislative branch
tion?
Congress of the United States
Library of Congress
What are two exclusive powers of the House of Representa-
General Accounting Office
Senate
tives?
Government Printing Office
Vice President of the United
What are some typical questions of government left unan-
House of Representatives
States
swered by the United States Constitution?
Symbols of government
Reading and Study Guide
Columbia
Liberty Bell
See United States Government in the Research Guide/Index,
E pluribus unum
Pledge of Allegiance
Volume 22. for a Reading and Study Guide.
Flag
Star-Spangled Banner
Great Seal of the United States
Statue of Liberty
Additional resources
Uncle Sam
Level I
Acheson, Patricia C Our Federal Government, How It Works: An
Other related articles
Introduction to the United States Government 4th ed. Dodd,
Smerican's Creed
Immigration
1984.
Ballot
Initiative and referendum
Cook, Fred J. The Rise of American Political Parties. Watts, 1971.
Bill of rights
Law
Coy, Haroid. Congress. Rev. ed. Watts, 1981. The Supreme Court
Census
Local government
Rev. ed. 1981.
Checks and balances
Money
Elting, Mary, and Gossett, Margaret. We Are the Government
Citizenship
National debt
Rev. ed. Doubleday, 1967.
City government
Naturalization
Level II
Civil service
Political party
Both Ends of the Avenue: The Presidency, the Executive Branch,
Constitution of the United
Presidential succession
and Congress in the 1980s. Ed. by Anthony King. American En-
States
Public lands
terprise Institute, 1983.
County
Radio Free Europe/
Page, Benjamin I. Who Gets What from Government Univ. of
Court
Radio Liberty
California Press, 1983.
Democracy
Social Security
Electoral College
United States Government Manual. U.S. Government Printing Of-
Spoils system
fice. Published annually.
Foreign Service
State government
Government
Vetterli, Richard, and Bryner, Gary. In Search of the Republic:
States' rights
Public Virtue and the Roots of American Government Row-
Hoover Commission
Statuary Hall
man & Littlefield, 1987.
IP 162U (GO)
[Excerpts]
THE UNITED STATES
GOVERNMENT MANUAL
1990/91
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Reproduced by the Library of Congress, Congressional Research Service.
Revised July 1, 1990
Martha L. Girard,
Director of the Federal Register.
Don W. Wilson,
Archivist of the United States.
Stock Number: 069-000-00033-9
Price: $21
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, DC 20402
Preface
As the official handbook of the Federal Government, The United States Government
Manual provides comprehensive information on the agencies of the legislative,
judicial, and executive branches. The Manual also includes information on quasi-
official agencies; international organizations in which the United States participates;
and boards, committees, and commissions.
A typical agency description includes a list of principal officials, a summary
statement of the agency's purpose and role in the Federal Government, a brief history
of the agency, including its legislative or executive authority, a description of its
programs and activities, and a "Sources of Information" section. This last section
provides information on consumer activities, contracts and grants, employment,
publications, and many other areas of public interest.
The 1990/91 Manual was prepared by the Legislative Unit, Office of the Federal
Register. Gwendolyn J. Henderson was Managing Editor; Gregory R. Walton, Suzanne
L. Meyer, and J.O. Wallace were Assistant Editors.
This year's Manual cover observes the bicentennial of the original 1790 census. It
illustrates a portion of an authentic enumeration log from a 1790 Pennsylvania tally
and contains such prominent names as John Wilson, a signer of the Constitution and
an Associate Supreme Court Justice; Thomas Mifflin, then Governor of Pennsylvania;
among other notables. The cover is reproduced from the original copy preserved at
the National Archives and Records Administration.
THE FEDERAL REGISTER AND ITS SPECIAL EDITIONS
The Manual is published as a special edition of the Federal Register (see 1 CFR 9.1).
Its focus is on programs and activities. Persons interested in detailed organizational
structure, the regulatory documents of an agency, or Presidential documents should
refer to the Federal Register or one of its other special editions, described below.
Issued each Federal working day, the Federal Register provides a uniform system
for publishing Presidential documents, regulatory documents with general applicability
and legal effect, proposed rules, notices, and documents required to be published by
statute.
The Code of Federal Regulations is an annual codification of the general and
permanent rules published in the Federal Register. The Code is divided into 50 titles
that represent broad areas subject to Federal regulation. The Code is kept up to date
by the individual issues of the Federal Register.
The Weekly Compilation of Presidential Documents serves as a timely, up-to-date
reference source for the public policies and activities of the President. It contains the
remarks, news conferences, messages, statements, and other Presidential material of a
public nature issued by the White House during the week reported.
A companion publication to the Weekly Compilation is the Public Papers of the
Presidents, which contains public Presidential documents and speeches in convenient
book form. Volumes of the Public Papers have been published for every President
since Herbert Hoover, with the exception of Franklin D. Roosevelt, whose papers
were published privately.
III
IV
U.S. GOVERNMENT MANUAL
OTHER OFFICE OF THE FEDERAL REGISTER PUBLICATIONS
The Office of the Federal Register publishes slip laws, which are pamphlet prints of
each public and private law enacted by Congress. Slip laws are compiled annually as
the United States Statutes at Large. The Statutes volumes contain all public and
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recommendations for executive, legislative, and judicial salaries; reorganization plans;
proposed and ratified amendments to the Constitution; and Presidential
proclamations. Included with many of these documents are sidenotes, U.S. Code and
statutes citations, and a summary of their legislative histories.
The Codification of Presidential Proclamations and Executive Orders provides in
one reference source proclamations and Executive orders issued from the Truman
through the Reagan administrations that have general applicability and continuing
legal effect. The Codification is divided into 50 chapters representing broad subject
areas. Incorporated into each codified document are all amendments that were in
effect on the most recent revision date.
PUBLICATION AVAILABILITY
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Superintendent of Documents
Government Printing Office
Washington, DC 20402-9325
and are also sold at Government Printing Office bookstores located in several major
cities. Telephone inquiries should be directed to 202-783-3238.
The Federal Register and Code of Federal Regulations are available in microfiche
form as well as bound paper copies. In addition, these publications are available to
the public at designated Government depository libraries and many other libraries. For
more information, see the "Sources of Information" section of the Government
Printing Office's statement in this book.
FURTHER INFORMATION
Information on the contents of The United States Government Manual and other
publications of the Office of the Federal Register may be obtained by writing:
Office of the Federal Register
National Archives and Records Administration
Washington, DC 20408
Telephone inquiries concerning the editorial content of the Manual should be directed
to 202-523-5230.
THE GOVERNMENT OF THE UNITED STATES
This chart seeks to show
only the more Important
THE CONSTITUTION
agencies of the Government.
See text for other agencies.
LEGISLATIVE BRANCH
EXECUTIVE BRANCH
JUDICIAL BRANCH
THE CONGRESS
THE PRESIDENT
The Suprame Court of the
Senate
House
United States
Executive Office of the President
United States Courts of Appeals
Architect of the Capitol
United States District Courts
United States Botanic Garden
White House Office
National Critical Materials Council
United States Claims Court
General Accounting Office
Office of Management and Budget
Office of the U.S. Trade Representative
United States Court of Appeals for
Government Printing Office
Council of Economic Advisers
the Federal Circuit
Council on Environmental Quality
Library of Congress
United States Court of International Trade
Office of Technology Assessment
National Security Council
Office of Science and Technology Policy
Territorial Courts
Congressional Budget Office
Office of Policy Development
Office of Administration
United States Court of Military Appeals
Copyright Royalty Tribunal
Office of National Drug Control Policy
National Space Council
United States Court of
Veterans Appeals
United States Tax Court
Administrative Office of the
United States Courts
THE VICE PRESIDENT
Federal Judicial Center
DEPARTMENT OF
DEPARTMENT OF
DEPARTMENT OF
DEPARTMENT OF
DEPARTMENT OF
DEPARTMENT OF
DEPARTMENT OF
AGRICULTURE
COMMERCE
DEFENSE
EDUCATION
ENERGY
HEALTH AND HUMAN
HOUSING AND URBAN
SERVICES
DEVELOPMENT
DEPARTMENT OF
DEPARTMENT OF
DEPARTMENT OF
DEPARTMENT OF
DEPARTMENT OF
DEPARTMENT OF
DEPARTMENT OF
THE INTERIOR
JUSTICE
LABOR
STATE
TRANSPORTATION
THE TREASURY
VETERANS AFFAIRS
INDEPENDENT ESTABLISHMENTS AND GOVERNMENT CORPORATIONS
ACTION
Federal Emergency Management Agency
National Capital Planning Commission
Peace Corps
Administrative Conference of the US.
Federal Housing Finance Board
National Credit Union Administration
Pennsylvania Avenue Development
African Development Foundation
Federal Labor Relations Authority
National Foundation on the Arts and
Corporation
Federal Maritime Commission
Central Intelligence Agency
the Humanities
Federal Mediation and Concillation Service
Pension Benefit Guaranty Corporation
National Labor Relations Board
Commission on the Bicentennial of the
Postal Rate Commission
GOVERNMENT OF THE UNITED STATES CHART
Federal Mine Safety and Health Review Commission
National Mediation Board
United States Constitution
Railroad Retirement Board
Federal Reserve System, Board of Governors of the
National Railroad Passenger
Commission on Civil Rights
Resolution Trust Corporation
Federal Retirement Thrift Investment Board
Corporation (Amtrak)
Commodity Futures Trading Commission
Securities and Exchange Commission
Federal Trade Commission
National Science Foundation
Consumer Product Safety Commission
Selective Service System
General Services Administration
National Transportation Safety Board
Defense Nuclear Facilities Safety Board
Small Business Administration
Nuclear Regulatory Commission
Inter-American Foundation
Environmental Protection Agency
Occupational Safety and Health Review
Tennessee Valley Authority
Equal Employment Opportunity Commission
Interstate Commerce Commission
Commission
U.S. Arms Control and Disarmament Agency
Export-Import Bank of the U.S.
Ment Systems Protection Board
Office of Government Ethics
U.S. Information Agency
Farm Credit Administration
National Aeronautics and Space
Office of Personnel Management
U.S. International Development
Federal Communications Commission
Administration
Office of Special Counsel
Cooperation Agency
Federal Deposit Insurance Corporation
National Archives and Records
Oversight Board
U.S. International Trade Commission
Federal Election Commission
Administration
Panama Canal Commission
U.S. Postal Service
21
Federal Information Center
GON
U.S. General Services Administration
H
ave you ever tried to find an answer to a
Kentucky
Ohio
simple question about the federal
Louisville
Akron, Cincinnati,
government and ended up on a merry-go-round of
(800) 347-1997
Cleveland, Columbus,
referrals? Or, have you ever had a question about the
Dayton, Toledo
Louisiana
federal government that was so difficult that you
(800) 347-1997
New Orleans
didn't even know where to begin?
(800) 366-2998
Oklahoma
The Federal Information Center is one office that
Oklahoma City, Tulsa
has specially selected and trained its staff to answer
Maryland
(800) 366-2998
Baltimore
your questions or help you find the right person with
(800) 347-1997
Oregon
the answer.
Portland
Simply call the telephone number listed below for
Massachusetts
(800) 726-4995
your metropolitan area or State. If your area is not
Boston
listed, please call (301) 722-9098. If you would prefer
(800) 347-1997
Pennsylvania
to write, please mail your inquiry to the Federal
Philadelphia, Pittsburgh
Michigan
(800) 347-1997
Information Center, P.O. Box 600, Cumberland, MD
Detroit, Grand Rapids
21502. Users of Telecommunications Devices for the
(800) 347-1997
Rhode Island
Deaf (TDD/TTY) may call toll-free from any point
Providence
Minnesota
in the United States by dialing (800) 326-2996.
(800) 347-1997
Minneapolis
(800) 366-2998
Tennessee
Alabama
Florida
Chattanooga
Birmingham, Mobile
Fort Lauderdale,
Missouri
(800) 347-1997
(800) 366-2998
Jacksonville, Miami,
St. Louis
Memphis, Nashville
Orlando, St. Petersburg,
(800) 366-2998
Alaska
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Tampa, West Palm Beach
All other locations
Anchorage
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(800) 735-8004
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(800) 729-8003
Austin, Dallas,
Georgia
Nebraska
Arizona
Fort Worth, Houston,
Atlanta
Omaha
Phoenix
San Antonio
(800) 347-1997
(800) 366-2998
(800) 359-3997
(800) 366-2998
All other locations
Hawaii
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(800) 735-8004
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(800) 733-5996
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(800) 366-2998
(800) 359-3997
Newark, Trenton
Illinois
California
(800) 347-1997
Virginia
Chicago
Los Angeles, San Diego,
Norfolk, Richmond,
(800) 366-2998
New Mexico
San Francisco, Santa Ana
Roanoke
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(800) 726-4995
Indiana
(800) 347-1997
(800) 359 3997
Sacramento
Gary
Washington
(916) 973-1695
(800) 366-2998
New York
Seattle, Tacoma
Indianapolis
Albany, Buffalo,
Colorado
(800) 726-4995
(800) 347-1997
New York, Rochester,
Colorado Springs,
Syracuse
Wisconsin
Denver, Pueblo
Iowa
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Milwaukee
(800) 359-3997
All locations
(800) 366-2998
(800) 735-8004
North Carolina
Connecticut
Charlotte
Hartford, New Haven
Kansas
(800) 347-1997
(800) 347-1997
All locations
(800) 735-8004