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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Commission on Executive,
Legislative & Judicial Salaries (2 of 4)
Box: 11
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
THE WHITE HOUSE
WASHINGTON
November 28, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
J2R
SUBJECT:
Commission on Executive, Legislative,
and Judicial Salaries
Susan Borchard has asked if Justice Potter Stewart would be
confronted with an apparent or actual conflict of interest
were he to serve on the Commission on Executive, Legisla-
tive, and Judicial Salaries. As you know, that Commission
was established pursuant to 2 U.S.C. § 352 to review and
make recommendations concerning the rates of pay for members
of Congress, high-ranking Executive branch officials, and
justices and judges. Justice Stewart assumed senior status,
"retain[ing] his office but retir[ing] from regular active
service." 28 U.S.C. $ 371(b). Pursuant to 28 U.S.C.
$ 371 (b), "[h]e shall, during the remainder of his lifetime,
continue to receive the salary of the office." Throughout
his retirement Justice Stewart will be paid the same as a
sitting associate justice. Since the Commission is tasked
with making recommendations on, inter alia, what an associ-
ate justice should be paid, Justice Stewart would be pre-
sented with a direct actual conflict of interest were he to
serve on the Commission. Simply put, he would be reviewing
and making recommendations with respect to his own salary.
There is another, even more basic problem with appointing
Justice Stewart to this Commission. Under 2 U.S.C.
§ 352 (1), the members of the Commission "shall be appointed
from private life." The legislative history sheds little
light on the purpose of this restriction, but it seems
intended to prevent those in government from deciding how
much those in government should be paid. The question is
not entirely free from doubt, but I do not think a senior
judge should be considered to have returned to "private
life." As noted a senior judge draws a full government
salary, typically is assigned to sit by designation on
various courts (as Justice Stewart has), and retains full
rights (as Justice Stewart has) to chambers, law clerks,
secretarial assistance, and so on. The fact that senior
judges have not returned to private life is confirmed by the
fact that were they to pursue private employment -- by
joining a law firm, for example -- they would forfeit their
senior judge status. Judges that resign -- like former
Judge Mulligan of the Second Circuit -- return to private
- 2 -
life; judges that assume senior status -- like Judges
Lumbard and Friendly of the same court -- do not.
The attached memorandum for Borchard notes that Justice
Stewart would be confronted with a conflict of interest
problem, and is probably not eligible for this Commission in
any event.
Attachment
THE WHITE HOUSE
WASHINGTON
November 28, 1984
MEMORANDUM FOR SUSAN BORCHARD
ASSOCIATE DIRECTOR
OFFICE OF PRESIDENTIAL PERSONNEL
Orig. signed by FFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Commission on Executive, Legislative,
and Judicial Salaries
By memorandum dated November 21 you inquired if Justice
Potter Stewart would be presented with a conflict of inter-
est were he to be appointed to the Commission on Executive,
Legislative, and Judicial Salaries. That Commission is
charged, inter alia, with reviewing and making recommenda-
tions concerning the rate of pay for associate justices.
2 U.S.C. § 356(c). Justice Stewart did not resign his
office; he retained his office but retired from regular
active service. He is, accordingly, entitled to receive the
salary of an associate justice during the remainder of his
lifetime. 28 U.S.C. $ 371 (b). Thus, if Justice Stewart
were to serve on the Commission, he would be reviewing and
making recommendations concerning his own salary. Although
the Commission is only advisory, it would be difficult to
imagine a clearer conflict of interest.
Quite apart from any conflict of interest problem, it
appears that Justice Stewart is ineligible for service on
the Commission. Pursuant to 2 U.S.C. § 352 (1), Commission
members "shall be appointed from private life." As noted, a
senior judge "retain[s] his office," 28 U.S.C. § 371 (b),
and, unlike a judge who resigns, cannot be considered to
have returned to "private life.' For the foregoing reasons,
I must advise against considering Justice Stewart for
appointment to the Commission on Executive, Legislative, and
Judicial Salaries.
FFF:JGR:aea 11/28/84
CC: FFFielding/JGRoberts/Subj/Chron
277732
/Dg
ID #
CU
FG094
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 . OUTGOING
H INTERNAL
JR
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Susan Borchard
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Commission Expective Seginlative
and Judicial Salaries
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
WHolland
ORIGINATOR
84111/26
/
/
Referral Note:
WAT18
1)
DD
84/11/26
5 84/12/06
Referral Note:
/
/
/
/
Referral Note:
/
/
/
/
Referral Note:
/
/
/
/
-
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A * Appropriate Action
I . Info Copy Only/No Action Necessary
A Answered
C Completed
C - Comment/Recommendation
R - Direct Reply w/Copy
B.- Non-Special Referral
S Suspended
D - Draft Response
S. For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
THE WHITE HOUSE
WASHINGTON
November 21, 1984
277732 CU
MEMORANDUM FOR:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
FROM:
SUSAN BORCHARD
DIRECTOR, PRESIDENTIAL BOARDS
AND COMMISSIONS
SUBJECT:
Commission on Executive, Legislative
and Judicial Salaries
Potter Stewart has been suggested for appointment to the
Commission on Executive, Legislative and Judicial Salaries. In
your view, would his appointment represent an apparent or actual
conflict of interest?
I have attached background regarding the Commission for your
information.
Your assistance with this matter is very much appreciated.
COMMISSION ON EXECUTIVE, LEGISLATIVE, AND JUDICIAL SALARIES
Independent
AUTHORITY:
81 Stat. 642,
P.L. 90-206, Sec. 225, December 16, 1967
2 U.S.C. 352
METHOD:
See below
MEMBERS: NINE appointed from private life, as follows:
THREE appointed by the President,
TWO appointed by the President of the Senate,
TWO appointed by the Speaker of the House
of Representatives,
TWO appointed by the Chief Justice of
the United States.
CHAIRMAN:
Designated by the President from one of his appointees.
TERM:
Initial appointees shall serve for the term of fiscal year
1969. (Term would expire June 30, 1969)
Every fourth fiscal year thereafter, 1973, 1977, 1981.
members shall be appointed for a term expiring at
the close of that particular fiscal year.
SALARY:
$100.00 per day
PURPOSE
Review the rates of pay of Members of Congress, the
Judiciary and persons in the Executive Pay Schedule to
determine their appropriate salary levels. The Commission
would submit its report and recommendations to the President
no later than January 1 following the fiscal year in which
its review was conducted.
THE WHITE HOUSE
WASHINGTON
January 25, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
DR
SUBJECT:
Letter from Chief Judge Frank McGarr
Concerning Commission on Executive,
Legislative and Judicial Salaries
Chief Judge Frank McGarr of the United States District Court for
the Northern District of Illinois has written the President,
complaining about his low salary and noting that the Commission
on Executive, Legislative and Judicial Salaries (the Quadrennial
Commission) has not begun its work because the President has not
yet appointed his three members. Now that the President has done
so, we can respond to Judge McGarr. A draft simply noting that
the appointments have been made is attached for your review and
signature.
Attachment
THE WHITE HOUSE
WASHINGTON
January 25, 1985
Dear Judge McGarr:
Thank you for your letter to the President concerning judicial
compensation and the reconvening of the Commission on Executive,
Legislative and Judicial Salaries. I am happy to advise you that
the full membership of the Commission has now been appointed and
that the Commission has begun meeting. I am enclosing for your
information copies of the White House press releases announcing
the President's appointments to the Commission.
Thank you for sharing your informed views on this important issue
with us. You may be certain that we will accord them the careful
consideration merited by their source.
Sincerely,
Orig. signed by FFF
Fred F. Fielding
Counsel to the President
The Honorable Frank J. McGarr
Chief Judge
United States District Court
Northern District of Illinois
219 South Dearborn Street
Chicago, Illinois 60604
Enclosures
FFF/JGR/nb
CC: FFFielding/JGRoberts/Subj./Chron
1dg
ID# 259838
THE WHITE HOUSE
PE008
CORRESPONDENCE TRACKING WORKSHEET
INCOMING
DATE RECEIVED: DECEMBER 17, 1984
NAME OF CORRESPONDENT: THE HONORABLE FRANK J. MCGARR
SUBJECT WRITES CONCERNING THE COMMISSION ON EXECUTIVE
This act needs
LEGISLATIVE AND JUDICIAL SALARIES
,
ACTION
DISPOSITION
ROUTE TO:
ACT
DATE
TYPE C COMPLETED
OFFICE/AGENCY (STAFF NAME)
CODE YY/MM/DD RESP D YY/MM/DD
FRED FIELDING
ORGO 84/12/17
/ /
REFERRAL NOTE:
WAT18
D DD, 841/2118
S 891 )2128
REFERRAL NOTE:
/ /
/ /
REFERRAL NOTE:
/ /
/ /
REFERRAL NOTE:
/ /
/ /
REFERRAL NOTE:
COMMENTS:
ADDITIONAL CORRESPONDENTS:
MEDIA:L INDIVIDUAL CODES
MI MAIL
USER CODES: (A)
(B)
(C)
*ACTION CODES:
*DISPOSITION CODES:
*OUTGOING
*
*
*
* CORRESPONDENCE:
*
*A-APPROPRIATE ACTION
*A-ANSWERED
*TYPE RESP=INITIALS
*
*C-COMMENT/RECOM
*B-NON-SPEC-REFERRAL
*
OF SIGNER *
*D-DRAFT RESPONSE
*C-COMPLETED
*
CODE = A
*
*F-FURNISH FACT SHEET
*S-SUSPENDED
*COMPLETED = DATE OF *
*I-INFO COPY/NO ACT NEC*
*
OUTGOING
*
*R-DIRECT REPLY W/COPY *
*
*
*S-FOR-SIGNATURE
*
*
*
*X-INTERIM REPLY
*
*
*
REFER QUESTIONS AND ROUTING UPDATES TO CENTRAL REFERENCE
(ROOM 75, OEOB) EXT. 2590
KEEP THIS WORKSHEET ATTACHED TO THE ORIGINAL INCOMING
LETTER AT ALL TIMES AND SEND COMPLETED RECORD TO RECORDS
MANAGEMENT.
UNITED STATES DISTRICT COURT
7,7,e,Heng
Northern District of Illinois
219 SOUTH DEARBORN STREET
CHICAGO, ILLINOIS 60604
FRANK J. McGARR
CHIEF JUDGE
December 11, 1984
(312) 435-5600
The Honorable Ronald Reagan
President of the United States
The White House
Washington, D.C. 20500
Dear President Reagan:
After approximately 15 years on the federal bench, I find
myself in the position where my salary, in terms of real
purchasing power, is 30 percent lower than the day I started.
I recognize that, in the broad spectrum of world crises, this
one is not earth shaking, but in terms of the morale of the
third branch of our great government and the ability of you
and our senators to attract good people to this very important
office, it is a crisis of significant proportion.
I recognize that in the atmosphere of austerity which
follows upon your recent announcement of necessary deficit
reduction, the time is not exactly propitious to speak to
you of salary increases, but the total amount is not large
for this smallest of government branches.
The Commission on Executive, Legislative and Judicial
Salaries is scheduled to reconvene in Washington before the
end of the year. Its legislatively mandated role is to present
recommendations to you for possible inclusion in your proposed
budget. The commission operates on a very tight timetable and
has not yet begun its deliberations because you have not yet
appointed three persons to the panel. The other appointees have
been named, and the judiciary awaits your action.
I would urge you to give this matter your attention. I
recognize that my individual interest makes my concern suspect
but, in truth, it is a matter of national importance. With
apologies for its untidiness, I enclose a photocopy of an
article in the Chicago Daily Law Bulletin, which is useful
because it accurately covers both the history and the
dimensions of the problem I am concerned with.
Sincerely, Frunk
Frank J. McGarr
bjb
enclosure
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
January 22, 1985
The President today announced his intention to appoint the following
individuals to be Members of the Commission on Executive, Legislative,
and Judicial Salaries for the period of the 1985 fiscal year of the
Federal Government:
LLOYD NORTON CUTLER will succeed Martha W. Griffiths. He is a Partner
in the law firm of Wilmer, Cutler & Pickering in Washington, D.C. He
served as Counsel to the President of the United States in 1979-1981.
Previously, he was with Wilmer, Cutler & Pickering in 1962-1979. He
graduated from Yale University (A.B., 1936; LL.B., 1939). Mr. Cutler
is married, has four children and resides in Chevy Chase, Maryland. He
was born November 10, 1917 in New York, New York.
ALEXANDER B. TROWBRIDGE will succeed Joseph Howard McDonnell. He is
President of the National Association of Manufacturers in Washington,
D.C. Previously, he was Vice Chairman of Allied Chemical Corporation
in 1976-1978. He served as Secretary of Commerce in 1967-1968. Mr.
Trowbridge graduated from Princeton University (B.A., 1951). He is
married, has six children and resides in Washington, D.C. He was born
December 12, 1929 in Anglewood, New Jersey.
###
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
December 13, 1984
The President today announced his intention to appoint Nicholas F.
Brady to be a Member of the Commission on Executive, Legislative
and Judicial Salaries for the period of the 1985 fiscal year of the
Federal Government. He would succeed Thomas R. Donahue. The
President also intends to designate him as Chairman.
Mr. Brady has been with the investment banking firm of Dillon Read
& Company since 1954 and currently serves as Chairman and Chief
Executive Officer. He is also currently Chairman of Purolater Inc.
In 1982, he was appointed to the United States Senate by New Jersey
Governor Thomas Kean to fill out the unexpired term of Senator
Harrison Williams.
Mr. Brady graduated from Yale University (B.A., 1952) and Harvard
Business College (M.B.A., 1954). He is married, has four children
and resides in Far Hills, New Jersey. He was born April 11, 1930
in New York, New York.
# # #
1120
FG094 PY
WHITE HOUSE STAFFING MEMORANDUM
DATE:
2/20/85
ACTION/CONCURRENCE/COMMENT DUE BY:
SUBJECT:
PROPOSED LETTER TO NICHOLAS BRADY RE COMMISSION ON EXECUTIVE,
LEGISLATIVE, AN JUDICIAL SALARIES
ACTION FYI
ACTION FYI
VICE PRESIDENT
MURPHY
0
MEESE/CRIBB
OGLESBY
REGAN
from
ROGERS
DEAVER
SPEAKES
STOCKMAN
SVAHN
CHEW
P
SS
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
KINGON
TUTTLE
BUCHANAN
HICKEY
ROLLINS
McFARLANE
FRIEDERSDORF
McMANUS
REMARKS: Ken, last week someone on your staff presented us with the attached
draft letter. As is our normal process, we staffed it out to relevant
offices. We received several comments, and in particular I call your
attention to Fred Fielding's which seem to be the most serious. Since I
don't know the background nor the reason for the letter in the first place,
I suggest you or someone on your staff get in touch with the Counsel's
office to see if you can resolve your differences. Also attached are
Connie Horner's comments. If you have any questions or problems, please
RESPONSE:
don't hesitate to call.
David L. Chew
Staff Secretary
Ext. 2702
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE:
2/15/85
ACTION/CONCURRENCE/COMMENT DUE BY:
2/19/85
SUBJECT:
PROPOSED LETTER TO NICHOLAS BRADY RE COMMISSION ON EXECUTIVE,
LEGISLATIVE, AND JUDICIAL SALARIES
ACTION FYI
ACTION FYI
VICE PRESIDENT
MURPHY
MEESE
OGLESBY
REGAN
ROGERS
DEAVER
2/20 120mmers
SPEAKES
STOCKMAN
02/20 commers
SVAHN
-nocomments
CHEW
P
SS
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
KINGON
BUCHANAN
TUTTLE
HICKEY
McFARLANE
McMAI`````
2/20/85
REMARKS:
DLC:
Ple
Please note Fielding's recommendation
tached
let
that this letter not be sent.
(We
Should we just file this, but inform
Meese's office?
RESPONSE
se
Chew
retary
Ext. 2702
13 February 1985
Dear Mr. Brady:
As the Commission on Executive,
Legislative and Judicial Salaries begins
its work, it has come to my attention that
a portion of the statute establishing the
Commission may be defective as a result of
a recent Supreme Court decision.
Additionally, the failure of the present
statutory process to resolve salary
determinations in an orderly manner
suggests that the statutory framework
warrants review.
Consequently, I hereby request that the
Commission, in addition to its statutory
duties, consider as a first priority the
effectiveness and validity of its enabling
legislation and make legislative
recommendations to remedy any
constitutional defects and to create a
framework for a more orderly resolution of
salary determination for top government
officials. I would like to have your
recommendations on these questions as soon
as possible. Please advise my Assistant
for Policy Development, John A. Svahn, of
a target date by which your Commission
will be able to develop these
recommendations.
Thank you for your attention to these
matters.
Sincerely,
RR
Mr. Nicholas Brady, Chairman
Commission on Executive, Legislative
and Judicial Salaries
734 Jackson Place
Washington, D.C. 20503
cc: rm
JSvahn
JWright
THE WHITE HOUSE
1005 FED 20 END: 50
WASHINGTON
February 19, 1985
MEMORANDUM FOR DAVID L. CHEW
STAFF SECRETARY
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT Dol
SUBJECT:
Proposed Letter to Nicholas Brady Regarding
Commission on Executive, Legislative, and
Judicial Salaries
You have asked for my views on a draft letter from the
President to the Chairman of the Commission on Executive,
Legislative, and Judicial Salaries. In the proposed letter
the President notes the legislative veto problem in the
statute establishing the Commission, and also notes that the
statutory scheme has not worked effectively. He requests
that the Commission review these problems and submit recom-
mended legislative changes.
I recommend that the letter not be sent. The legislative
veto problem referred to in no way affects the legitimacy of
the Commission or the nature of its work. Under the statutory
scheme the Commission submits recommendations to the President
and the President thereafter submits independent recommendations
to Congress. The so-called legislative veto problem -- in
2 U.S.C. §§ 359-360 -- concerns the legal effect of the
President's independent recommendations, not those of the
Commission. The Commission exists only to make non-binding
recommendations to the President, and that function can be
discharged regardless of the effectiveness of any recommendations
the President may make. (Incidentally, the legislative veto
problem with this statute is purely technical and non-substantive.
Under the statute the President's recommendations become law
only if approved by both Houses. The problem is that the
recommendations should, under INS V. Chadha, be presented to
the President after passage by both Houses for approval or
disapproval -- a foregone conclusion, since the recommendations
were submitted by the President in the first place.)
Aside from the legislative veto problem, the letter also
solicits recommendations on a more effective statutory
scheme. I see no reason for the President to request such
formal guidance from an entity to which he appoints only
three of the nine members. The recommendations of the
- 2 -
Commission will carry considerable weight and legitimacy,
yet we do not know if they will be palatable to this
Administration. We should not increase the potential for
future embarrassment by requesting recommendations we may
have to oppose.
E
PRESIDENT
OFFICE
EXECUTIVE OFFICE OF THE PRESIDENT
UNITED
15
OFFICE OF MANAGEMENT AND BUDGET.. FEB 20 15
SECUTIVE
STATES
WASHINGTON D.C. 20503
February 20, 1985
MEMORANDUM FOR: DAVID CHEW
FROM:
CONSTANCE HORNER CH
SUBJECT:
Proposed Letter to Nicolas Brady on
the Commission on Executive Salaries
We have reviewed the draft response for the President's signature
dealing with the work of the Commission on Executive,
Legislative, and Judicial Salaries (Quadcom). The draft raises
two issues:
1. Because the statute setting out the Quadcom's functions is
rather narrowly confined to a review of the rates of pay for
top Federal officials, this letter from the President to Mr.
Brady would ask that the Quadcom also provide advice on other
matters. The additional areas would be to have the Quadcom
review its own statutory base and to make legislative
recommendations to remedy defects or make improvements.
2. It is critical, however, that the letter to Brady not suggest
Presidential recognition of a constitutional problem with the
statutory pay mechanism. In the analogous annual pay
comparability process, the Justice Department currently is
defending litigation involving Federal worker claims that the
legislative veto device in the comparability statute
invalidated the entire statutory pay mechanism, and thus
Federal workers are entitled to upwards of $100 million in
back pay. The principal point of Justice's argument is that
the legislative veto device is severable, and that the
statutory scheme works without it. Any comment by the
President on the constitutional issue in this context could
adversely affect our defenses in the pending lawsuits.
Accordingly, the references to this problem in the first and
second paragraphs should be deleted.
With the two deletions indicated on the attached page, we have no
objections to the proposed letter.
Attachment
Attachment
13 February 1985
Dear Mr. Brady:
As the Commission on Executive,
Legislative and Judicial Salaries begins
its work, it has come to my attention that
a portion of the statute establishing the
Commission may be defective as a result of
a recent Supreme Court decision.
Additionally the failure of the present
statutory process to resolve salary
determinations in an orderly manner
suggests that the statutory framework
warrants review.
Consequently, I hereby request 5in that the
in the course of
Commission, in addition to its statutory
duties, consider as a first priority the
effectiveness and validity of its enabling
legislation and make legislative
recommendations to remedy any
constitutional defects and to create a
framework for a more orderly resolution of
salary determination for top government
officials. I would like to have your
recommendations on these questions as soon
as possible. Please advise my Assistant
for Policy Development, John A. Svahn, of
a target date by which your Commission
will be able to develop these
recommendations.
Thank you for your attention to these
matters.
Sincerely,
RR
Mr. Nicholas Brady, Chairman
Commission on Executive, Legislative
and Judicial Salaries
734 Jackson Place
Washington, D.C. 20503
cc: rm
JSvahn
JWright
Document No.
1335 FEB 19 THE 01
WHITE HOUSE STAFFING MEMORANDUM
DATE:
2/15/85
ACTION/CONCURRENCE/COMMENT DUE BY
2/19/85
SUBJECT:
PROPOSED LETTER TO NICHOLAS BRADY RE COMMISSION ON EXECUTIVE,
LEGISLATIVE, AND JUDICIAL SALARIES
ACTION FYI
ACTION FYI
VICE PRESIDENT
MURPHY
MEESE
OGLESBY
REGAN
ROGERS
DEAVER
SPEAKES
STOCKMAN
SVAHN
CHEW
P
SS
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
KINGON
TUTTLE
BUCHANAN
HICKEY
McFARLANE
McMANUS
REMARKS:
Please provide any comments/recommendations on the attached
letter by Tuesday, February 19.
(We received this draft from Mr. Meese.)
RESPONSE:
no coments - first tive seen of this
tas
David L. Chew
Staff Secretary
Ext. 2702
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE:
2/15/85
ACTION/CONCURRENCE/COMMENT DUE BY:
2/19/85
SUBJECT:
PROPOSED LETTER TO NICHOLAS BRADY RE COMMISSION ON EXECUTIVE,
LEGISLATIVE, AND JUDICIAL SALARIES
ACTION FYI
ACTION FYI
VICE PRESIDENT
MURPHY
MEESE
OGLESBY
REGAN
ROGERS
DEAVER
SPEAKES
STOCKMAN
SVAHN
CHEW
P
SS
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
KINGON
BUCHANAN
TUTTLE
HICKEY
McFARLANE
McMANUS
REMARKS:
Please provide any comments/recommendations on the attached
letter by Tuesday, February 19.
(We received this draft from Mr. Meese.)
RESPONSE:
Out to Meeu to resolve Fielding
objections
David L. Chew
Staff Secretary
Ext. 2702
13 February 1985
Dear Mr. Brady:
As the Commission on Executive,
Legislative and Judicial Salaries begins
its work, it has come to my attention that
a portion of the statute establishing the
Commission may be defective as a result of
a recent Supreme Court decision.
Additionally, the failure of the present
statutory process to resolve salary
determinations in an orderly manner
suggests that the statutory framework
warrants review.
Consequently, I hereby request that the
Commission, in addition to its statutory
duties, consider as a first priority the
effectiveness and validity of its enabling
legislation and make legislative
recommendations to remedy any
constitutional defects and to create a
framework for a more orderly resolution of
salary determination for top government
officials. I would like to have your
recommendations on these questions as soon
as possible. Please advise my Assistant
for Policy Development, John A. Svahn, of
a target date by which your Commission
will be able to develop these
recommendations.
Thank you for your attention to these
matters.
Sincerely,
RR
Mr. Nicholas Brady, Chairman
Commission on Executive, Legislative
and Judicial Salaries
734 Jackson Place
Washington, D.C. 20503
CC: rm
JSvahn
JWright
THE WHITE HOUSE
WASHINGTON
March 1, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Cutler Call
You may recall that our office objected on February 19 to a
proposed letter from the President to the Commission on
Executive, Legislative, and Judicial Salaries. The letter
requested that the Commission review the legislative veto
problem in its enabling legislation and the general effective-
ness of the statutory scheme, in addition to its narrower
statutory duties. We objected because (1) the President
should not seek legal guidance from an independent commission,
(2) the legislative veto problem in the statute did not in
any way affect the responsibilities of the Commission, and
(3) the President should not seek policy guidance from a
commission to which he appoints only three of the nine
members. Your memorandum of February 19 to Chew noting
these objections apparently sufficed to kill the letter.
I received a call earlier this week from the Executive
Director of the Commission, who had been told (unclear by
whom) that the letter was stalled in our office. She
advised me that the proposed letter had been prepared by the
Commission in the first place, after approval by Mr. Meese.
I told her that the letter might not be sent.
Today (2:00 p.m.) I received a call from Lloyd Cutler, who
as you know serves on the Commission. He wanted to know why
the letter was not going to be sent, stating that both he
and Mr. Brady agreed to serve on the Commission with the
understanding that it would address the broader questions.
He also stated that the letter had been approved by Mr.
Meese. I did not want to get into specifics with Mr.
Cutler, but indicated the general nature of our concerns.
He noted that he would explore the matter further with you.
I did not and do not know of any implicit or explicit
understandings Cutler or Brady may have had when they were
appointed to the Commission, nor am I aware of any represen-
tations made by Mr. Meese. I adhere to the view that the
President should not ask an independent commission to which
he appoints only one-third of the members for legal advice
on a perceived legislative veto problem. The President can
turn to our office or the Justice Department for all the
legal advice he needs.
THE WHITE HOUSE
WASHINGTON
February 19, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS Jron
SUBJECT:
Proposed Letter to Nicholas Brady Regarding
Commission on Executive, Legislative, and
Judicial Salaries
David Chew has asked for comments on a proposed letter from
the President to the Chairman of the Commission on Executive,
Legislative, and Judicial Salaries. The draft letter notes
the legislative veto problem in the statute that established
the Commission, and the fact that the process mandated by
the statute has not worked effectively. The President
thereby requests the Commission to consider the effectiveness
and validity of its enabling legislation and submit recom-
mendations on necessary legislative changes.
I do not think the letter is a good idea. There is, as we
have discussed before, a legislative veto problem with this
statute. That problem, however, does not affect the Commission
in any way. Briefly, the statute establishes the Commission,
which is to submit a report to the President. 2 U.S.C. §§
351-352, 356, 357. The President is then directed to submit
salary recommendations to Congress, after having the benefit
of the report prepared by the Commission. Id. $ 358. There
is, however, no necessary connection between the Commission
recommendations and those of the President. The President's
independent recommendations -- not those of the Commission
-- become effective if approved by majority vote of each
House. Id. $ 359. This last provision presumably violates
the teaching of INS V. Chadha, in that the constitutionally
mandated presentment procedure is not followed. The violation
is of the most technical sort, however, since the salary
recommendations originate with the President in the first
place (so he has no real complaint about not having an
opportunity to veto them) and must be approved by a majority
vote of both Houses (so the bicameral requirement is met).
What is important to note, however, is that the legislative
veto problem does not affect the work of the Commission.
That work is at an end when the Commission's report -- of no
independent legal significance -- is presented to the
President. Presidents receiving the report not only can but
historically have ignored it. The legislative veto problem
goes to the effectiveness of the President's recom-
mendations, not those of the Commission.
- 2 -
Nor is there any reason to suppose that a court would rule
the Commission should not exist simply because of uncertainty
over the fate of the President's recommendations. Congress
established the Commission to advise the President; it does
nothing else. That function is not affected by the legislative
veto provision. It seems clear to me that a court considering
the question would rule that the process remains intact, but
that the President's recommendations are just that and must
be passed into law consistent with Chadha. As noted, this
will result in a technical but not substantive change, since
a majority of both Houses must approve the President's
recommendations under the statute in any event.
In light of the foregoing, I see no reason for the President
to ask the Commission for legal guidance on the legislative
veto problem. That's what we're here for. There remains
the issue of the effectiveness of the statutory scheme, a
policy question. On that score, I do not see why the
President would want to solicit formal recommendations from
an entity to which he appoints only three of the nine
members. If we want to recommend changes in the scheme, our
policy operations should be able to generate recommendations
themselves, without abdicating to an independent agency.
The attached memorandum for Chew embodies the foregoing.
Attachment
THE WHITE HOUSE
WASHINGTON
February 19, 1985
MEMORANDUM FOR DAVID L. CHEW
STAFF SECRETARY
FROM:
FRED F. FIELDING signed by FFF
COUNSEL TO THE PRESIDENT
SUBJECT:
Proposed Letter to Nicholas Brady Regarding
Commission on Executive, Legislative, and
Judicial Salaries
You have asked for my views on a draft letter from the
President to the Chairman of the Commission on Executive,
Legislative, and Judicial Salaries. In the proposed letter
the President notes the legislative veto problem in the
statute establishing the Commission, and also notes that the
statutory scheme has not worked effectively. He requests
that the Commission review these problems and submit recom-
mended legislative changes.
I recommend that the letter not be sent. The legislative
veto problem referred to in no way affects the legitimacy of
the Commission or the nature of its work. Under the statutory
scheme the Commission submits recommendations to the President
and the President thereafter submits independent recommendations
to Congress. The so-called legislative veto problem -- in
2 U.S.C. §§ 359-360 -- concerns the legal effect of the
President's independent recommendations, not those of the
Commission. The Commission exists only to make non-binding
recommendations to the President, and that function can be
discharged regardless of the effectiveness of any recommendations
the President may make. (Incidentally, the legislative veto
problem with this statute is purely technical and non-substantive.
Under the statute the President's recommendations become law
only if approved by both Houses. The problem is that the
recommendations should, under INS V. Chadha, be presented to
the President after passage by both Houses for approval or
disapproval -- a foregone conclusion, since the recommendations
were submitted by the President in the first place.)
Aside from the legislative veto problem, the letter also
solicits recommendations on a more effective statutory
scheme. I see no reason for the President to request such
formal guidance from an entity to which he appoints only
three of the nine members. The recommendations of the
- 2 -
Commission will carry considerable weight and legitimacy,
yet we do not know if they will be palatable to this
Administration. We should not increase the potential for
future embarrassment by requesting recommendations we may
have to oppose.
FFF: JGR:aea 2/19/85
CC: FFFielding
JGRoberts
Subj
Chron
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o - OUTGOING
H . INTERNAL
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Date Correspondence
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Name of Correspondent: David R. Chew
MI Mail Report
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Subject: Proposed letter I nichalas Brady re:
commission an Executive Legislative, and Judicial
solarnes
ROUTE TO:
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CUITOLL
ORIGINATOR 85,02,15
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CUAT 18
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COB
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ACTION CODES:
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S Suspended
D Draft Response
S For Signature
F - Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
Document No.
WHITE HOUSE STAFFING MEMORANDUM
DATE:
2/15/85
ACTION/CONCURRENCE/COMMENT DUE BY:
2/19/85
SUBJECT:
PROPOSED LETTER TO NICHOLAS BRADY RE COMMISSION ON EXECUTIVE,
LEGISLATIVE, AND JUDICIAL SALARIES
ACTION FYI
ACTION FYI
VICE PRESIDENT
MURPHY
MEESE
OGLESBY
REGAN
ROGERS
DEAVER
SPEAKES
STOCKMAN
SVAHN
CHEW
P
5S
VERSTANDIG
FIELDING
WHITTLESEY
FULLER
KINGON
BUCHANAN
TUTTLE
HICKEY
McFARLANE
McMANUS
REMARKS:
Please provide any comments/recommendations on the attached
letter by Tuesday, February 19.
(We received this draft from Mr. Meese.)
RESPONSE:
David L. Chew
Staff Secretary
1985 FEB 15 All IO: 50
Ext. 2702
13 February 1985
Dear Mr. Brady:
As the Commission on Executive,
Legislative and Judicial Salaries begins
its work, it has come to my attention that
a portion of the statute establishing the
Commission may be defective as a result of
a recent Supreme Court decision.
Additionally, the failure of the present
statutory process to resolve salary
determinations in an orderly manner
suggests that the statutory framework
warrants review.
Consequently, I hereby request that the
Commission, in addition to its statutory
duties, consider as a first priority the
effectiveness and validity of its enabling
legislation and make legislative
recommendations to remedy any
constitutional defects and to create a
framework for a more orderly resolution of
salary determination for top government
officials. I would like to have your
recommendations on these questions as soon
as possible. Please advise my Assistant
for Policy Development, John A. Svahn, of
a target date by which your Commission
will be able to develop these
recommendations.
Thank you for your attention to these
matters.
Sincerely,
RR
Mr. Nicholas Brady, Chairman
Commission on Executive, Legislative
and Judicial Salaries
734 Jackson Place
Washington, D.C. 20503
cc: Em
JSvahn
JWright
THE WHITE HOUSE
WASHINGTON
May 21, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS JJR
SUBJECT:
Commission on Executive, Legislative,
and Judicial Salaries
The Executive Director of the Commission on Executive,
Legislative, and Judicial Salaries has sent David Chew a
draft of the Commission's tentative recommendations. Chew
has asked for your views by May 22.
The Commission will recommend new legislation, providing
that the President's recommendations on salary levels would
become law unless Congress disapproved them by joint resolu-
tion within 30 days. The Commission will make no salary
recommendations this year, but will urge that a one-time,
blue ribbon panel be appointed by July 1, 1986 to submit
salary recommendations to the President by January 1, 1987.
(It is not clear who would appoint the members of this
panel.) The President would then submit his recommendations
under the new scheme. In 1988, the Quadrennial process
would begin anew.
The current scheme requires Congress to vote to approve the
President's recommendations. 2 U.S.C. § 359. The proposed
scheme simply gives Congress the chance to block them by
passing a joint resolution. The responsibility for fixing
salaries is thus effectively shifted from Congress to the
Executive.
The Commission's scheme has a chance of working. Congress
would normally be reluctant to pass legislation giving the
President the right to do anything on his own (unless
blocked by a joint resolution), but in this case doing so
would enable Congress to pass the buck on setting the salary
of its own members. Throwing judges and high-level execu-
tive officers into the mix would make it look less apparent
that this is what Congress was doing. In short, there is a
chance that the new legislation recommended by the Commis-
sion could pass. Once in place, the new scheme would put
the onus of setting salaries on the President, but the
President could take some refuge from potential criticism by
hiding behind the recommendations of the advisory panel.
- 2 -
The proposed scheme would pass muster under INS V. Chadha.
The proposal does not specify who would appoint the members
of the one-time blue ribbon panel, but this is irrelevant as
a constitutional matter since the responsibilities of the
panel would be purely advisory. (Indeed, since the Presi-
dent may want to hide behind the panel's recommendations, he
may not want to appoint all of the members.) I have some
constitutional queasiness about the President assuming the
legislative function of enacting spending levels, but this
would seem acceptable under the theory that Congress legis-
lated when it authorized the President to set the levels.
Attachment
THE WHITE HOUSE
WASHINGTON
May 21, 1985
MEMORANDUM FOR DAVID L. CHEW
STAFF SECRETARY
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Commission on Executive, Legislative,
and Judicial Salaries
I have reviewed the proposal of the Commission on Executive,
Legislative, and Judicial Salaries and think it holds
considerable promise. Under the current scheme both Houses
of Congress must vote to approve salary recommendations of
the President. 2 U.S.C. $$ 351-361. The proposal would
provide that the President's recommendations become law
unless disapproved by a joint resolution. In practical
terms this shifts responsibility for setting salary levels
from the Congress to the President. Since this would permit
Congress to pass the buck on setting the salary of its
members, there is some chance that the proposal could pass.
The President would, of course, have heightened responsi-
bility in this sensitive area, but he would have the re-
commendations of the advisory panel for support in the face
of any public criticism. (I note that the Commission
proposal does not specify who would appoint the members of
the one-time, blue ribbon Committee on Salaries.)
I cannot, of course, give any definitive legal clearance
until I have an opportunity to review the draft legislation
recommended by the Commission. The proposal would not,
however, present any problems under INS V. Chadha. In this
regard I would note that we should be careful not to appear
to concur in any Commission views on the constitutional or
other legal flaws of the current scheme. You may recall
that we took pains in corresponding with the Commission to
note that the current statutory scheme was ineffective but
not to opine gratuitously that it was unconstitutional. The
current statute does in fact present a minor technical
problem under INS V. Chadha, but it is far from clear how
that infirmity affects the statutory scheme, and the resolu-
tion of that question is pending before the courts.
In sum, I see no reason at this point to object to the
general approach of the Commission.
FFF: JGR:aea 5/21/85
CC: FFFielding/JGRoberts/Subj/Chron