Reproduced from Ihe Unclassu ed Dedasm ed Holdings of the Nabonal Archives US Department of Justice Of ce of Legal Policy Assistant Attorney General Washington 20530 April 30 1986 TO Edwin Meese Attorney General FROM Stephen J Markman 57m Assistant Attorney General Office of Legal Policy SUBJECT Separation of Powers At your request the Office of Legal Policy has con ducted a review of current separation of powers issues involving the relationship between the legislative and executive branches of the national government The results of that review are contained in the attached report The report makes two general recommendations one substantive and one procedural Substantively the report sets forth principles and guidelines for Administration policymakers to refer to as they consider separation of powers issues We recommend that the Justice Department's Strategy Planning Group develop from this report a statement of basic separation of powers principles for adoption by the Domestic Policy Council Procedurally we recommend that the Strategy Planning Group also develop for DPC adoption procedures for ensuring that these principles are followed in separation of powers conflicts The procedures would call for greater formalization of the process for handling these conflicts greater articulation in conflict situations of each branch's constitutional authority and its legiti mate interests and greater coordination of executive branch responses to congressional assertions of authority We recommend an enhanced coordination and representation role for the Justice Department The report has four parts As background for our conclusions and recommendations Part I provides an overview of produced from me Uncaassi ed Declassi ed of the National Archives the Framers' intent concerning separation of powers and of how it has worked in practice Supplementing Part I Appendix A identi fies many of the specific areas where these separation of powers issues have arisen by summarizing the major Reagan Administration conflicts with Congress Appendix discusses the role of the judiciary in the legislative-executive relationship Appendix summarizes the major court cases in the area Appendix sets forth the pertinent provisions of the Constitution and Appendix collects the relevant Federalist Papers Part II of the report offers an analytic framework for approaching separation of powers conflicts a way of thinking clearly about a subject that is generally treated vaguely and imprecisely Specifically Part II sets forth principles descri- bing what separation of powers is and what purposes and values it serves and it suggests guidelines for Administration decision- makers to refer to in conflict situations Part of the report summarizes the various ways the Administration can respond to congressional actions Concluding the report Part IV discusses how the approach proposed in Part II can be implemented by the Admini- stration _Ii first recommends Administration adoption of a statement of basic separation of powers principles derived from 'this report It then recommends Administration establishment of procedures to ensure greater formalization articulation and coordination in separation of powers conflictsu For example with respect to congressional oversight which is a major source of disputes we have concluded that the Administration should formalize the process by requiring that congressional requests be in writing and only come from committee or subcommittee chairmen or congressional leadership The request should articulate with reference to specific constitutional provisions the constitu- tional power the requester is exercising and the purpose or interest in furtherance of the-power that is served by the request executive responses should similarly state the relevant constitutional authority and legitimate interests The coordi- nation of executive branch responses should be improved perhaps by establishing a coordination and review process The Justice Department may be the appropriate-body to direct such a process Attachment cc D Lowell Jensen Roger M Olsen Arnold I Burns Stephen E Trott Charles Fried Richard K Willard Wm Bradford Reynolds T Kenneth Gribb Jr John R Bolton Terry H Eastland Charles J Cooper Herbert E Ellingwood Douglas H Ginsberg Stephen Ha Galebach F Henry Habicht II Reproduced from the Unclassi ed I Dedassi ed Holdings of the National Archwes TABLE OF CONTENTS I BACKGROUND ON SEPARATION OF POWERS A B- The Framers' Intent Separation of Powers in Practice II HOW TO THINK CLEARLY ABOUT SEPARATION OF POWERS A Basic Principles 1 Definition of Separation of Powers 2 Purposes and Values Served by Separation of Powers 3 General Policy Considerations for the Executive Considerations for Conflict Situations 1 General Constitutional Questions 2 General Policy Questions 3 Specific Areas of Controversy a Congressional Oversight b Appropriations Budget c Advice and Consent d Refusal to Enforce or Defend Unconstitutional Statutes e Foreign Relations EXECUTIVE BRANCH METHODS FOR RESPONDING TO CONGRESS I IV RECOMMENDATIONS Appendix A Summary of Reagan Administration Appendix Appendix Appendix Appendix Conflicts with Congress Role of the Judiciary Major Court Decisions Constitutional Provisions Federalist Papers Reproduced mm the Unclassified Declassi ed Hoidings of the Nabonal motives SEPARATION OF POWERS LEGISLATIVE-EXECUTIVE RELATIONS I BACKGROUND ON SEPARATION OF POWERS Much of the unique nature of our system of government derives from the Constitution's mandates for separation of powers federalism and individual rights principles that the Framers formulated through a process of creativity and compromise and that all share the central purpose of limiting the national government We address in this paper the separation of powers in the national government focusing specifically on the allocation of power and the relationship between the legislative and execu- tive branches A The Framers' Intent Tlhe principle of separation of powers was not simply an abstract generalization in the minds of the Framers it was woven into the document that they drafted in Philadelphia in the summer of 1787 1 We should therefore review the Framers' intent in this area This nation was born in a rebellion against the tyranny practiced by the British government against colonists in North America who perceived that the king dominated parliament In establishing the structure of our national government the Framers consciously and explicitly reacted against the concen tration of British and other European government power in a single institution Influenced by Montesquieu 2 James Madison wrote that t he accumulation of all powers legisla- tive executive and judiciary in the same hands may justly be pronounced the very definition of tyranny 9 The Constitution therefore divides in Articles I II and respectively the legislative executive and judicial powers and functions of the national government which are inherent in any form of government among three separate branches Buckley v Valeo 424 U S 1 124 1976 IN When the legislative and executive powers are united in the same person or in the same body of magistrates there can be no liberty Montesquieu The_Spirit of the Laws 38 Great Books of the Western World 70 Hutchins ed 1952 1 Federalist No 48 at 385 Madison Cooke ed 1961 Reproduced from the Unclassi ed Dectassi ed Holdings of the National Archwes Although they sought to limit the powers of all three branches and were reacting against strong executive power in the British and other European governments the Framers were also concerned about unbridled legislative power The Supreme Court recently cited in the legislative veto case the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed if Thomas Jefferson James Madison and Alexander Hamilton all spoke to this concern Jefferson stated that t he tyranny of the legislature is really the danger most to be feared and will continue to be so for many years to come The tyranny of the executive will come in its turn but at a more distant period 2 Madison cited the tendencies of legislatures to extend the sphere of their activity and to draw all power into their impetuous vortex g1 He called upon the people to indulge all their jealous ies and exhaust all their precautions against the enter- prising ambition of legislative power which is inspired by a supposed influence over the people with an intrepid confidence in its own strength 1 Hamilton was similarly suspicious of legislatures The representatives of the people in a popular assembly seem sometimes to fancy that they are the people themselves and betray strong of impatience and disgust at the least sign of opposition from any other quarter as if the exercise of its rights by either the executive or the judi- ciary were a breach of their privilege and an outrage to their dignity They often appear disposed to exert an imperious controul over the other departments and as they commonly have the people on their side INS v Chadha 462 U S 919 947 1983 N Quoted in Gottfried Dietze America's Political Dilemma 1968 Federalist No 48 at 333 Madison Cooke ed 1961 lm 3g at 334 Reproduced from he Unclassi I Dedassi ed Holdings 0 the National Archives they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution Not everyone at the Constitutional Convention agreed with these sentiments although dissenters were in the minority Benjamin Franklin cited a natural inclination in mankind to Kingly Government George Mason feared a more dangerous monarchy an elective one And Pierce Butler observed that Gentlemen seemed to think that we had nothing to fear from an abuse of the Executive power But why might not a Cataline or a Cromwell arise in this country as in others 2 All agreed of course on the necessity of devising governmental structures that would effectively contain national authority as a whole Thus to counterbalance the legislature the Framers contemplated a relatively strong though limited Executive As Hamilton put it Energy in the E xecutive is essential to the protection of the community against foreign attacks It is not less essential to the steady administration of the laws to the protection of property against those irregu- lar and high handed combinations which sometimes interrupt the ordinary course of justice to the security of liberty against the enterprises and assaults of ambition of faction and of anarchy 19 We must remember the historical context in which the Constitution was written The Framers were certainly reacting to the tyranny they had suffered under the unitary British govern ment But they were even more immediately reacting to the weak and ineffective government that had been attempted from 1774 to 1787 under the Articles of Confederation The response of the Articles to the example of British executive power was the creation of legislative supremacy and yet weakness in the form of the Continental Congress which itself was generally subordi- nate to the state legislatures Indeed the executive domination that the Articles sought to avoid was replaced by state legislau tive domination loo Federalist No 71 at 483-84 Hamilton Cooke ed 19 In Farrand Records vol 1 p 83 June 2 vol 1 p 101 June 4 vol 1 p 100 June 4 Federalist No 70 at 471 Hamilton Cooke ed 1961 Repmduced from Ef nclass fy'r fbeaasaned Holdings of Ihe National Archwes The supremacy of state legislatures came to be recognized as the supremacy of faction and the tyranny of shifting majorities The legislatures confiscated property erected paper money schemes and suspended the ordinary means of collecting debts 11 In short while not overreacting and seeking to establish a structure that had the opposite effect the Framers clearly did intend to strengthen the Executive compared to the situation under the Articles both relative to the other two branches and as part of a stronger though still quite limited central government 11 Thus motivated by fear of the tyranny of unified government power suspicion of legislatures and a desire for a stronger executive than existed under the Articles 11 the Framers added to the institutional separation of powers a comple- mentary system of checks and balances The most significant executive checks on Congress are the independent election of the President as the sole public official with a genuinely national mandate executive discretion in the carrying out of the laws and the presidential veto The most significant legislative checks on the President are Congress' power of the purse Senate confirmation of appointments and approval of treaties and the congressional powers to declare war and remove the President by impeachment 11 The Framers contemplated that the checks and balances would foster both cooperation and conflict between the political branches -- producing in other words a creative tension The checks and balances were intended principally to limit the national government by restricting the expansion of any of its component branches In Madison's words ambition would counteract ambition They would also limit government by making it more deliberative and less efficient and by requiring more consensus in decisionmaking The Framers realized too that for the separation of powers to work they had to provide Edward Levi Some Aspects of Separation of Powers 76 Colum L Rev 371 374-75 1976 11 See generally Louis Fisher Constitutional Conflicts between Congress and the President 12-13 1985 11 See INS v Chadha 462 U S at 944-51 13 Appendix sets forth the constitutional provisions dividing power between the political branches 15 Federalist No 51 at 349 Madison Cooke ed 1961 Reproduced from Ihe Unclassi ed Unclassi ed Holdings of the National Archives each branch the means of self-defense the checks and balances Hamilton's explanation of the importance of the presidential veto is illustrative If even no propensity had ever discovered itself in the legislative body to invade the rights of the E xecutive the rules of just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other but ought to possess a constitutional and effec- tual power of self defence 'k The veto power establishes a salutary check upon the legislative body calculated to guard the community against the effects of faction precipitancy or of any impulse unfriendly to the public good which may happen to influ- ence a majority of that body The primary inducement to conferring the power in question upon the E xecutive is to enable him to defend himself the secondary one is to increase the chances in favor of the community against the passing of bad laws through haste inadvertence or design The separation of powers also had the purpose of encouraging good government by institutionalizing cooperation not just conflict As Justice Robert Jackson observed The actual art of governing under our Consti- tution does not and cannot conform to judi cial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context 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 interdepen- dence autonomy but reciprocity ll Federalist No 73 at 494-95 Hamilton Cooke ed 1961 See also EEderaT$St No 51 Hamilton Joseph Story Commentaries On the C6 fitution of the United States 3d ed I 614-15 Youngstown Sheet Tube Co v Sawyer 343 U S 579 635 1952 Jackson J concurring Reproduced I m' Un aa Esi 'd medassmed Holdings of the National Archives In arguing or self restraint by each of the branches President Ford's Attorney General Edward Levi concluded that the Framers did not envision a government in which each branch seeks out confrontation they hoped the system of checks and balances would achieve a harmony of purposes differently fulfilled The branches of government were not designed to be at war with one another The relationship was not toija an adversary one though to think of it that way has become fashionable lg The Supreme Court also has observed that the Framers intended that the branches be interdependent writing that the Framers recognized that a hermetic sealing of the three branches of Government from CEEJanother would preclude the establishment of a Nation capable of governing itself effectively 19 The Court thus has been mindful that the boundaries between each branch should be fixed 'according to common sense and the inher- ent necessities of the governmental coordination' gg In sum as you stated in your February 27 1986 lecture at the University of Dallas the true purpose of the Constitu- tion was to achieve good and effective but still popular limited government You favorably quoted Louis Fisher of the Library of Congress The Constitution supplies a general structure for the three branches of government assigns specific functions and responsibilities to each and reserves certain rights to the people Armed with powers of self-defense the branches of government intersect in various patterns of cooperation and conflict How these basic principles of law operate in practice is a question decided by experimentation precedents and constant adaptation and accommodation 21 Levi supra note 11 at 391 19 Buckley v Valeo 424 U S at 121 See also INS v Chadha 462 U S at 951-52 32 INS v Chadha 462 U S at 962 Powell J concurring quoting Hampton Co v United States 276 U S 394 406 1928 21 Fisher supra note 12 at 27 Reproduced from the Unclassi ed Dedassi ed Holdings of the Nabonal Archives B Separation of Powers in Practice To understand separation of powers one must understand both the Constitution and politics This section discusses separation of powers politics the political relationship between the legislative and executive branches We briefly review its history and then offer an institutional analysis The history of separation of powers politics is too and complex to discuss in this report except in barest outline It has seen periodic shifts in the balance of power between the two branches shifts that to have been based less on constitutional theories than on politics and current events During the 18th and 19th centuries the balance swung between the branches and the last century ended with an era of congressional supremacy following the strong Lincoln presidency of the Civil War The modern era of the strong president was foreshadowed at the beginning of the 20th century by Theodore Roosevelt Favoring the big stick and the bully pulpit Roosevelt transformed the public conception of the presidency After the turmoil of World War I and the activist Wilson administration the pace of the national government slowed down in the 1920's and the balance between the branches equalized During the Depres- sion howevera Franklin Ecosevelt resumed the ascendancy of presidential power begun by Theodore Roosevelt and Woodrow Wilson and the modern presidency assumed the basic shape that we now almost take for granted Through a dozen years of unremit tant activism 22 Roosevelt_overwhelmed the Congress in both domestic and forEign policy With only occasional demurrals Congress acquiesced in presidential supremacy until the 1970's In essence presidents managed the government provided the leadership on the economy were almost unchecked on foreign relations and served a de facto role as chief legislator It took the unpopularity of the Vietnam War and the perceived excesses of the Nixon presidency -- as well as the differing partisan leadership of the two branches -- to rouse Congress from its lethargy In the 1970's the balance of power temporarily swung back to Congress as it regained the power of the purse however ineffectively through restrictions on im- poundment and reconstitution of the budget process reasserted itself concerning war powers and foreign policy exercised tighter control over the administration of the law through oversight and the legislative veto and erfected internal reforms creation of budget committees and expansion of staff that sought to improve its capacity to carry out its responsibilities gg James Sundquist The Decline and Resurgence of Congress 34 1981 Reproduced tom the Unclassi ed Dedassdied of the Nationa Aromas Congressional action of course coincided with executive inaction as Watergate and its surrounding crises temporarily crippled the presidency The strong leadership of President Reagan seems clearly to have ended the congressional resurgence of the 1970's al- though there remains the unusually prolonged phenomenon of separate parties in control of the Executive and at least one house of the Congress Even more significantly as the issues facing the national government have become more complex and numerous in recent decades and as budget battles have ascended to unprecedented primacy because they entail nothing less than the establishment of national priorities -- leaders in both branches have increasingly recognized that institutionally Congress is ill-suited to lead and that therefore a relatively strong President may be necessary An institutional analysis of Congress might start with the tunnel vision of many of its members Although there are some statesmen generally the system discourages members from having a broad view of national issues As Bill Brock observed in 1976 when he co-chaired a Senate ad hoc committee studying reform of the Senate committee system tlhe thing that is missing in the Senate today is that we get caught up so often in these day-to-day debates without a national or a broad perspective without an overview or foresight capacity 22 Similar sentiments were expressed by his Democratic co-chairman Adlai Stevenson We are compartmentalists we have sliced our daily routines into superficial fragments and we have divided and subdivided large problems into a host of committee cubbyholes It is no wonder that there is little consis- tency or coherence to what we do here Do we have anything that could fairly be called a policy in such fields as energy conserva tion environmental protection or health care If we do it would be hard to find evidence of it in our fragmented committee system 23 MN 13 3 S Rep No 1395 94th Cong 2d Sess 5 1976 122 Cong Rec 34018 1976 For example an estimated two dozen subcommittees in each house of Congress have some energy policy jurisdiction at the National Archives Beyond this inherent problem of congressional fragmen- tation and apart from the temporary effects of opposing political parties controlling the two branches what seems to have happened to separation of powers politics in recent decades is that the political branches have evolved in different directions The Executive has strengthened itself communications advances have greatly increased citizen participation in politics and provided presidents with direct and independent popular bases for their national leadership institutionallyn presidents have gained greater control over the executive branch through centralization and other management improvements and considerable substantive expertise has developed in the executive branch In contrast Congress has weakened through a number of developments that more than offset at least for this purpose the benefits of its internal reforms of the 1970's it has become considerably less centralized and organized as a result of the declining power of political parties and committee chairmen power has been diffused as a result of the decline of the seniority system the proli- feration of committees and subcommittees with overlapping juris diction and the growth of congressional staffs the institu tionalization of the welfare state has transformed members of Congress from individuals representing nationally defined in- terests into individuals acting as ombudsman for parochial spending interests and the increasing sunshine on the legis- lative_process through public markups and the liken has further reduced power in the hierarchy In short the influence of executive leadership has grown and that of congressional leader- ship has diminished Because our national government does require firm leadership at least on occasion even many members of Congress have recognized that such leadership must come from the Presi- dent For example Democratic Senate Majority Leader Mike Mansfield was willing to cede leadership on economic matters to Republican President Gerald Ford We tried to do something about the inflation and the recession through advocating wage price rent and profit controls and other matters but we just can seem to get the votes That's why it is necessary in my opinion for one man the President to take the lead and for the Congress to cooperate as much as it can because 535 men and women in the Congress cannot do so 32 Face the Nation CBS television program October 27 1974 Quoted in Sundquist supra note 22 at 421 Reproduced from We mugs-d DEda su ed Holdings of the NaIJanal Archives 10 The case for presidential leadership was well summarized in 1965 another period of a strong Executive albeit of the other party by Democratic Senator Gale McGee I advance the contention as a member of the Senate that the need for increasing execu- tive power is very much the requirement of the day There is no other single repository of responsibility that could be held accountable for what happens a No Senator really has that common responsibility to so many at all levels of the economy in all segments of the social framework in our political legislative bodies the chance to pass the buck to someone else to duck the responsibility for failure and conversely to seize the credit for success is one of the dilemmas that face us You can duck responsibility within your committee and we have all done ito you can blame somebody else's committee you can disappear behind the facade of your party allegiance or of the philosophical group within your party to which you belong or you can blame it on the other House and if none of those happens to work you can dump-itIJE the shoulders of bureaucracy and red tape down town gg The reality of contemporary American politics and government thus seems to require a relatively strong presidency But as James Sundquist of the Brookings Institution has conclud- ed A presidency strong enough to achieve great ends will inevitably have also the strength to produce abominations And a presidency ham- strung by checks and balances to prevent abuse of power will be handicapped in exercising constructive leadership In the end it is a choice of risks The optimist will say Give the president the power most of the time it will be wisely used And the pessimist will answer Oh no Look at Vietnam and Water- gate Better keep the presidency under wraps Better safe than sorry 21 2 The Role of Executive Leadership in Nathaniel Stone Preston ed The Senate Institution 21 22 1969 21 Sundquist supra note 22 at 8 Declassmed Holdings at lhe National Archwes 11 - It seems to us that the best answer -- dictated by logic and history but just as much by the Framers' intent may lie in the formula put forth in 1979 by retired Senate Foreign Relations Chairman J William Fulbright Our proper objective is neither a dominant presidency nor an aggressive Congress but within the strict limits of what the Consti tution mandates Elshifting of the emphasis according to the needs of the time and the requirements of public policy In times of presidential excess such as in the 19605 an assertive Congress is a necessary corrective In a time such as the present when Congress is asserting its prerogatives aggressively but without a commensurate demonstration of public responsibility there is much to be said for a revival of_presidential leadership gg Viewed most generally therefore and from the standpoint of politics rather than constitutional law separation of powers involves a shifting balance of power As a matter of constitutional law however that shifting must occur within parameters established by the Constitution in other words there are limits beyond which the balance may not tilt It must be stressed moreover that the shifting is in the overall context of a system of limited national government power We now seek to combine the perspectives of constitutional law and separation of powers politics into a framework of analysis a comprehensive way of thinking clearly about separation of powers Z f J William Fulbright The Legislator as Educator 57 Foreign Affairs 719 726-27 1979 Reproduced from the Undassu ed I Declassi ed of the National Archives II HOW TO THINK CLEARLY ABOUT SEPARATION OF POWERS The cornerstone for any framework of analysis on separation of powers must be the requirements of the Constitution itself Thus the first inquiry must always be whether an action by the legislative or executive branch is constitutional -- an issue of constitutional law Only when we are satisfied that no constitutional violation is presented can we move to the next level of analysis policy While we must be vigilant in identifying potential constitutional violations many of the conflicts between the legislative and executive branches do not involve disputed issues of constitutional law 22 but rather are largely political disputes resulting from an overlap in the two branches' exercise of their acknowledged constitutional authority 39 Unlike 29 Appendix A summarizes the events and issues of the following controversies between the legislative and executive branches during the Reagan Administration Legislative Veto Refusal to Enforce or Defend Unconstitutional Statutes Pocket Veto Pntersession Adjournments Gramm-Rudman-Hollings Line Item Veto Presidential Spending Deferrals 7 Congressional interference with Appointment Power 8 Senate Confirmation 9 Recess Appointments 10 Status of Independent Agencies 11 Regulatory Review 12 Burford EPA Document Requests 13 Watt Interior Document Requests 14 Public Access to Presidential Records 15 Congressional Oversight Interference with mmbuMH I I Prosecutions l6 Legislation to Amend Rule Ste 17 Congressional Oversight -- Cornelius Discharge 18 Congressional Impediments to Executive Branch Management 19 War Powers Resolution 20 Strategic Arms Limitation Treaties SALT 2l American Cetacean Society 0 For example congressional oversight of the administration of government agencies constitutionally based on its legislative and appropriations functions may conflict with the Executive's need to protect the confidentiality of its deliberative process the constitutionally-based executive privilege Reproduced Issue U naassms'd' Declassi ed Holdings 0 Ihe National Archwes constitutional law questions which call for interpretivist analysis of constitutional provisions resolution of these political issues requires a mode of analysis that recognizes the pattern of cooperation and conflict that the Framers intended when they authorized separate branches to exercise different governmental powers and created the complementary system of checks and balances The other principal difference between constitutional law separation of powers disputes and conflicts of policy is the forums in which they are resolved Except in those cases where both a constitutional provision is allegedly violated and a case or controversy exists the constitutional and political analyses will be used only in executive branch deliberations and legisla- tive-executive dialogues Only where a justiciable constitutional issue is presented to the courts will the constitutional analysis also be used in court briefs In this part of the report we attempt to establish a framework of analysis for approaching separation of powers questions We first suggest how to think clearly about sepa- ration of powers by setting forth some basic principles concern- ing what the concept is and what purposes and values it serves We then identify considerations to be weighed when separation of powers conflicts arise We do not mean to suggest that all or even most of our comments represent novel ideas some are rather obvious We hope however that there is value in collecting them in one place A Basic Principles 1 Definition of Separation of Powers The following statements attempt collectively to define separation of powers a Separation of powers is a constitutionally-based doctrine arising both from the specific provisions and the overall structure of the Constitution That is the Constitution As discussed in Appendix B the Framers intended that separation of powers disputes would be contested primarily in the political arena and that the judiciary would play a limited role in resolving such disputes Appendix addresses three issues relating to that role the political question doctrine the separation proposal and congressional standing Our view is that although courts have not been assigned the role of umpiring all legislative-executive conflicts they do have jurisdiction to adjudicate these conflicts when a constitutional case or controversy is properly raised Reproduced mm lhe unclassi ed I Dedassi ed Holdings of the National Ardaives establishes a federal system on er hich three separate branches of the national government are assigned specific powers and functions lawmaking to Congress and law enforcement to the President b Separation of powers is the dispersal of defined and limited powers and functions among the three branches of the national government It represents the apportionment of the limited total power specifically granted to the national govern- ment by the people and the states As the Tenth Amendment makes clear the powers retained by the people and states cannot be encroached upon by any of the three branches of the national government acting separately or in concert c The separated powers of the legislative and executive branches do not overlap however their exercise often does That is the separate and distinct powers of the two branches may often be focused on the same subject areas and the operation of the national government may occasionally involve a blending of government operations as for example in the interaction between executive agencies and Congress regarding the development of a budget and the appropriations for individual agencies But there is never a blending of powers or functions Congress exercises legislative power to enact laws and appropriate money and the Executive exercises executive power to recommend and have the opportunity to veto legislation In other words the system is not properly viewed as separated institutions sharing powers -- as Professor Neustadt has described it gg -- but rather as the three branches of the national government being assigned different powers and functions the exercise of which sometimes overlap and occasion ally conflict The only sharing of power is the sharing of the sum of all national government power But that is not jointly shared it is explicitly divided among the branches e The overlap in the exercise of the branches' functions in certain subject areas 1e g legislation foreign relations and appointments is a necessary result of the checks and balances As the Congress and the President go about the government's business these specifica constitutionally-mandated procedures for the branches injecting themselves into what is principally the other's function 0e g presidential recommenda tion and approval of legislation Senate confirmation of presi- dential appointees and ratification of treaties produce a creative tension that fosters interdependence with both coop- eration and conflict between the political branches 33 Richard Neustadt Presidential Politics -- The Politics of Leadership From FDR to Carter 26 1980 Reproduced from the IDedassi ed Holdings of the Na lArchwes 15 f While the checks and balances result in a less than pure separation of powers they do not contradict the separation of powers but rather complement it Without the ability to withstand encroachments which the checks and balances provide a branch might be unable to perform the functions assigned to it under the separation of powers 2 Purposes and Values Served By Separation of Powers a As you have observed the overall purpose of the Constitution was I'to achieve good and effective but still popular limited government The separation of powers is an element of the constitutional structure that is central to that purpose b There are two closely-related principal purposes of separation of powers One is to avoid the tyranny of unified concentrated government power Arbitrary and autocratic govern ment could result from the unification even of the limited powers granted by the Constitution to the national government as a whole c The other principad purpose of separation of powers is to limit the expansion of the national government as a whole Federalism's protections of the states and the people could be overwhelmed in practice by a unified nationai government which could act with far more coordination and speed than the separate states or the people To prevent any such federad usurpation the tension between the branches and the countervailing pressures that result from the separation of powers and the checks and balances retard the expansion of the power of any individual branch of the nationad government and thusa the expansion of the national government's overadl power d Separation of powers also encourages more deliberative and reflective decisionmaking by requiring more procedural steps and involving more persons and entities with different and often conflicting interests thus guarding against arbitrary and inadequately considered government actions In the process separation of powers also promotes the achievement of decisionmaking through consensus e Although it generally makes government action more difficult separation of powers may in specific areas promote expertise and even efficiency in government through the specialization that results from dividing up the three basic governmental functions lawmaking law execution and adjudi- cation For example it may be that American government leaders have more expertise in public policy than their British counterparts American politicians are compelled to specialize in either legislation members of Congress or administration cabinet members while majority party British members of Parliament may simultaneously be cabinet members Reproduced from the I Dedassi sd Holdings 0 the Nabonal Archives f Separation of powers also promotes decisionmaking that takes into account other important concerns that underlie the Constitution As noted above it strengthens federalism Pluralism is furthered by the conflicts inherent in divided government Moreover our majoritarian democracy may work better if when Congress is significantly divided a President can exercise strong leadership to effect the will of the majority that elected him A countervailing check in this regard is the differing terms in office of Representatives Senators and Presidents the popular will prevails Over time but it must not be transitory Separation of powers thus allows government to be fairly responsive to the changing will of the electorate while maintaining institutional continuity 3 General Policy Considerations for the Executive a The Framers feared government power and specif- ically intended to limit it In the context of separating power among the three branches of the national government the Framers sought to provide the ability to resist encroachments by the other branches by creating the checks and balances The prevailing consensus in the 1980's is that in view of the fractionalization and decentralization of Congress a relatively strong presidency may be especially necessary now to ensure national leadership But since an unbridled President would be undesirable there is also a consensus that the checks and balances must stay fully operational b We need not automatically oppose the historical blending trend in government operations to the extent that it is implicit in the checks and balances So long as constitu- tional powers and functions themselves are not blended such cooperative interaction in g0vernmental decisionmaking is not undesirable We should also recognize that the less cooperative interaction there is the more judicial scrutiny of government operations there is likely to_be As the courts are called upon to resolve disputes between the branches caused by unnecessarily rigid separation positions the prerogatives of the executive branch may be_infringed upon more substantially by the judicial branch than by the legislative branch c Some executive branch participants in separation of powers conflicts may assume there is some inherent duty always to seek to expand executive power gg We reject such an assump tion Our duty should be to seek to preserve the ability of the 33 No doubt this is also true of various congressional -P- committee and subcommittee chairmen with regard to legislative power Reproduced rm mEUnclass Dj 'd smed Holdings 0 the National Archives executive branch to exercise the powers and functions granted it by the Constitution and to reaffirm the Constitution's limits on the Executive and on the national government as a whole d Conservatives traditionally have valued separation of powers because it operates to limit government Liberals have not always appeared to value it as highly perhaps for the same reason However some conservatives now are also finding sepa- ration of powers frustrating because it is sometimes an obstacle to the conservative political agenda thereby serving to preserve the liberal status quo They are thus inclined to make an exception to their usual respect for separation of powers and advocate a very strong President primarily for the practical reason that an activist conservative currently sits in the White House and they fear he may be the last We strongly believe that the Administration should take the longer-term view of separation of powers -- that is as the Framers intended and this report attempts to describe e Similarly it is appropriate that a conservative administration endorse the judicial role described in this report see appendix 30 Some conservatives might instinctively object to our suggestion that the courts should have a legitimate role in separation of powers diSputes involving a constitutional law issue and a true case or controversy We are not proposing any form of judicial activism however but rather that the courts should play their proper role The point is that while in general the courts have eagerly expanded their role beyond what the Framers intended they have at the same time tended to abandon one of their core judicial functions saying what the Constitution means even if this may upset one of the other branches gg rhe judicial abdication here is analogous to the national gOVernment's performance in generai as it has moved into many new areas of the nation's economic and sociai life it has become less effective on such Core functions as national defense and law enforcement f Keeping in mind the political aspect of separation of powers we should recognize that the current partisan split in the national government may color our understanding of separation of powers Recent decades have seen Congress in the hands of the Democratic Party the House almost always the Senate sometimes and the Executive controlled by the Republican Party usually The institutional conflicts that are inherent in the existence It is probably no coincidence that the federal courts have generally refrained from questioning the coequal branches of the national government while enthusiastically overseeing the states -- the other less powerful and less unified division of our governmental system Reproduced UWIWMM 0 1119 National of separate coequal branches have been exacerbated and distorted by more transitory and historically exceptional partisan divisions in the control of two branches g We should also recognize that separation of powers may recently have evolved in ways that could threaten to undercut its purposes In short the Executive has strengthened and the Congress weakened This congressional weakness may have in- creased the potential for frequent and irritating disputes between the two branches Thus the purposes of separation of powers might be better advanced if the institutional weaknesses of Congress were addressed It is possible that to the extent that political parties are strengthened and party leadership enforced in Congress and the trend in Congress toward individ- ualism and decentralization reversed Congress would become a more rational coherent institution to deal with This might reduce the volume of the types of dispute that are all too famil- iar those involving turf or parochial personal motivation rather than true policy disagreement It is ironic but never- theless probably true that a growing number of separation of power problems are a function of growing congressional weakness B Considerations for Conflict Situations Participants in conflict situations involving sepa- ration of powers should first consider certain basic constitu- tional questions and next a range of policy questions We now discuss both categories of questions and then review a number of specific areas where separation of powers issues often arise 1 General Constitutional Questions a Text of the Constitution Is the action constitutional The first reference in all separation of powers conflicts must be to the text of the Constitution to determine whether power to take the action has been granted to the branch that desires to take the action In this constitutional law context actions should not be analyzed as violating general separation of powers principles the analysis must be more concrete founded on specific provisions of the Constitution Specific questions to aid this determination include what are the limits of the particular power assigned by the Constitution to a specific branch what limitations upon the powers of one branch are implied in those granted to the other and whether authority in certain subject matters is granted both political branches b Scope of Authority What is the scope of each branch's general legislative executive or judicial power The specifically enumerated powers in Articles Reproduced Iran the Undassz ed Declass ied Holdings ol Ihe National Ardwes express the limits of the national government's power relative to the states and the people Within those limits however the scope of authority for each branch of the national government vis-a vis the other branches is less clear There is authority both in the text and in court precedent for interpreting execu- tive power more broadly than legislative power and both more broadly than judicial power While legislative power is limited to the powers specifically enumerated the more general open- ended structure of Article Ll has been interpreted to suggest that executive power may be construed more broadly The basic question is whether the President's Article II powers are limited to those specifically identified or whether instead the first sentence of Article II the executive power shall be vested in the President0 is itself a grant of the powers gener- ally understood by the Framers to be associated with the phrase executive power Note in this regard the differing formu lations of the first sentences of Articles only Article II is an open-ended grant of power Article I refers only to all legislative powers herein granted and the Article Section 1 reference to the judicial power is limited by Section 2 the judicial power shall extend to c Concurrent Authority How broad is the President's authority in subject areas where he and the Congress both have authority Some guidance may be found in the concurring opinion of Justice Jackson in Youngstown Sheet Tube Co v Sawyer 343 U S 579 635-37 1952 1 When the President acts pursuant to an express or implied authorization of Congress his authority is at its maximum for it in- cludes all that he possesses in his own right plus all that Congress can delegate 2 When the President acts in absence of either a Congressional grant or denial of authority he can only rely upon his own independent powers but there is a zone of twilight in which he and Congress may have concurrent authority or in which its distri- bution is uncertain 35 Myers v United States 272 U S 52 128 1926 The difference between the grant of legislative power under Article I to Congress which is limited to the powers therein enumerated and the more general grant of the executive power to the President under Article II is significant The executive power is given in general terms strengthened by specific terms where emphasis is appropriate and limited by direct expressions where limitation is needed ep roduoed rm me of the National Asthma 3 When the President takes measures incompa tible with the expressed or implied will of Congress his power is at lowest ebb for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter Points 1 and 2 seem accurate enough so long as they are not read to mean that congressional approval or acquiescence may authorize the Executive to exceed its constitutional power The validity of point 3 is not immediately apparent without further clarification At first glance the last clause of point 3 seems to suggest that the President's constitutional powerS'may be reduced by the amount of Congress' constitutional powers This result would be inconsistent with traditional views of the separation of powers however because it would establish a permanent congressional supremacy What point 39 must mean therefore is that when the Pre51dent pursuant to an express grant of constitutional power takes measures that conflict with the will or direction of Congress and Congress also has eXpress constitutional authority over the subject area the President's ability to take such measures may be limited by a more specific grant of constitutional power to Congress d Dele ation How well defined is a congressional delegation of Conflict between the branches often stems from the uncertainty created for executive branch agencies by overbroad vague and standardless delegations of regulatory or other administrative authority Congress should endeavor to be more precise and clear in its lawmaking in general and its dele- gations in particular Gonceptually it is important to recog nize as the Supreme Court did in Chadha 462 U S at 953 n 160 that the delegation is not of legislatiVe power that whatever authority is delegated to the executive branch is properly viewed as executive authority 2 General Policy Questions a Procedures Have the procedural requirements for handling potential separation of powers conflicts been followed A principal recommendation of this paper is that the process in this area should be formalized to a greater extent With consis tent adherence to rules such as the existing 14 day advance notice that Congress is to provide to executive branch witnesses fewer conflicts will occur and their resolution will be easier Our specific suggestions for formalizing the process are laid out in subsection 3 infra and summarized in Part In gener- al we recommend that both branches should set forth in writing the constitutional authority for their action or request and the nature of the legitimate interests it furthers and that greater coordination of executive branch positions is needed - Irom the 3mm I Declassi ed Holdings of the National Archives b Long Term Interests How are the permanent inter ests of the constituEEOn promEtEd And how are the permanent institutional interests of each branch promoted These different questions should be considered together and if they conflict preference should certainly be given to the former While we should always seek to protect the proper institutional interests of the presidency it does not necessarily follow that we should always seek to expand executive power or that we should always favor what would appear to be the pro executive position Our oath of office is to the Constitution not merely to its second Article Similarly Republican control of Congress would be no reason to relax our interpretation of the Constitution's require- ments on separation of powers 0 Waiver Is it appropriate to decline to exercise the constitutionally authorized power Clearly a branch's constitutional power cannot be waived or delegated But as a matter of discretion a political branch may decline to exercise fully its power in particular instances and the interest in reaching a pragmatic accommodation between the branches may occasionally call for such forbearance An important conceptual distinction therefore is that while a branch may sometimes waive the exercise of a power it can never waive the power itself or delegate either the exercise or the power Examples of where the Administration has been careful to preserve its consti- tutional power while waiving the power's exercise in a particu- lar circumstance include our acting consistently with the requirements of the Independent Counsel Act and the War Powers Resolution while reserving our right to challenge the constitu- tionality of those laws d Precedents What are the implications of prece- dents We should resist claiming that one branch's previous acquiescence in the other's view of a separation of powers issue has a binding effect because there are many times when the executive branch agrees or acquiesces for expedient reasons while disagreeing in principle Since we do not want to be charged with permanently abandoning positions when we waive them in particular cases we should be explicit in stating when we do not intend to establish a precedent 'With those caveatsa it must be acknowledged that precedents can be quite useful in molding a solution to a comparable conflict There are limited precedents in many areas since the recent spate of separation of powers controversies is in significant part a function of divided partisan control of the branches for a relatively sustained period of time e Methods of Response What are the tools each branch can employ to respond to the other branch In other words before choosing a course we must consider both our immediate options and those of the Congress and seek to an- ticipate future actions and reactions The principal methods available to the executive branch are enumerated in subsection 3 infra and Part I - theUndQ ml Reproduced from l ed Holdings 0 Ike National Archwes 22 f Methods of Resolution What are the means for resolving the co fl Et Except where a constitutional law issue and a justiciable case or controversy are present the courts are incapable of resolving conflicts between the political branches Conflicts must be resolved instead by negotiation and settlement as each branch seeks to identify and accommodate the other branch's proper interests or else through sheer political power Even where a justiciable constitutional law issue may arise litigation should be a last resort to be undertaken only after political remedies have been exhausted and the other branch embarks upon an unconstitutional actiOn and sufficient particu lar injury is caused to support standing Indeed since standing will rarely exist in either branch Osee Appendix B as a practi cal matter the political remedy will almost always be the final one unless an injured private party brings suit Judicial Role Will the judicial branch be asked to play a role As stated above unless a constitutional vio- lation and standing are present we must endeavor to reach a political accommodation without resort to the courts We should not present to the courts separation of powers disputes that do not satisfy the case or controversy requirement and we should strenuously contest on justiciability grounds any congressional resort to the courts in such disputes The courts are not qualified and generally are unwilling -- to adjudicate the conflicts that occur when there is overlap in the constitution ally-acceptable exercise by the political branches of their power h Accountability Is individual or collective decisionmaking mere appropfiate in the particular case Is there a specific need for a high level of accountability For example matters such as appropriations require collective decisionmaking by both Congress and the Executive because the general will of the people should control decisions on such overall priorities More specific matters such as criminal prosecutions have_been entrusted to the Executive where individual account- ability is more easily ensured These questions of account- ability and individual versus collective decisionmaking may be relevant to the status of independent agencies Because they lack accountability some have argued that independent agencies should either be brought under the control of the President or abolished i Public 0 inion and Partisanshi What regard should be given to public opinion and partisan political consid erations As with any political decision public opinion will be an important consideration public support for an administration is significantly affected by its relations with Congress While party politics should ordinarily not be a factor in separation of powers conflicts since in the first instance it is an institu- tional conflict we should recognize that partisan factors can exacerbate or minimize the conflict More generally the current partisan split within the Congress and longer-term between the Reproduced from 1119 Undassa cd I Declassi ed Hoidings of the National _ Archives Congress and the Executive strongly colors our perceptions of separation of powers j Efficiency How is government efficiency best promoted The pragmatic accommodations that are essential to the operation of the checks and balances must include attention to issues such as which branch has more expertise to bring to bear on a matter subject to concurrent authority As a general matter the executive branch has greater substantive expertise but the political representational expertise of Congress should not be discounted k Comity How heavily should comity considerations weigh While the separation of powers and checks and balances serve important purposes and may often result in less efficient government the Framers did not contemplate a government based principally on confrontation and EELadversary relationship Thus comity between the political branches the interest in goodwill and cooperative interaction -- is vital and should be more than a slogan This goal can be furthered through early and frequent communication between the branches on issues of poten- tial conflict 1 Rractical Accommodations How should we balance the interests in effic ent and expeaitious government action against the greater deliberation festered by the separation of powers The immediate pressures of government decisionmaking will necessarily encourage efficient solutions to interbranch conflicts and such practical accommodations are desirable so long as they do not violate the Constitution or threaten the long-term interests of our system of government or of the presidency m Facts of the Case To what extent do the particu- lar circumstances affect the resolution of a conflict This question serves to underscore the political nature of the sepa- ration of powers disputes that do not involve constitutional violationsa and the pragmatic nature of their resolution Each matter can only be resolved under-the particular facts and circumstances of the moment and cannot always easily be resolved by a broad theory that ignores that present reality 0n the other hand the resolution must not violate the Constitution or threaten the long term interests of our system of government or the presidencyn 3 Specific Areas of Controversy To provide a more specific context for application of these general principles and questions we now make some obser- vations on several of the major areas of recurrent conflict between the political branches Our suggestions generally reflect current practice although some are new It is beyond the scope of this paper to address all significant areas of Reproduced from we named I Unclassi ed Holdings of the National Archives conflict and by omitting any we do not intend to suggest that they are not significant For example while the issue of the status of independent agencies is vitally important we have chosen not to address it because it is already under thorough consideration by the Department Moreover we have given modest treatment to foreign relations conflicts because they are gener- ally beyond the jurisdiction of the Justice Department or the Domestic Policy Council a Congressional Oversight Scope of Oversight Authority 1 Congress may conduct oversight investiga- tions to determine how the executive branch is enforcing the laws to determine whether existing laws are still necessary or need revision to determine whether to enact new laws and to expose corruption inefficiency and waste in the national government 38 The scope of the power of inquiry is as broad and far-reaching as the potential power to enact laws and appropriate funds under the Constitution 31 2 Congress' power of oversight however is not unlimited The power of inquiry must be exercised in aid of legitimate legislative functions and cannot be used to arrogate to Congress functions allocated by the Constitution to the executive branch or to micro-manage the Executive's responsi- bilities gg Nor can it negate the President's constitutional responsibility for managing and controlling affairs committed to the executive branch 32 It is therefore clear for example that oversight interfering with open criminal investigations or prosecutions or other pending litigation is beyond the scope of permissible oversight 3 Congressional committees and subcommittees conducting oversight investigations are restricted to the Watkins v United Siates 354 U S 178 187 1957 see 36 also McGrain v Daugherty 273 U S 135 173 77 19 7 Barenblatt v United States 360 U S 109 111 1959 38 Barenblatt v United States 360 U S at 112 Watkins v United States 354 U S at 187 Kilbourn v Thompson 103 U S 168 1881 32 See Myers v United States 272 U S at 135 see also United States v Nixon 418 U S 683 705 1974 each branch is supreme within its own assigned area of constitutional duties Re ro duoed from he Undassi ed I Declassi ed Holdings of the Nahonal Archives missions delegated to them That is their powers are limited to acquiring information to be used by the House or the Senate in addressing a matter that falls within their legislative spheres No witness can be compelled to make disclosures on matters outside that area 3g 4 The interest of Congress in obtaining infor- mation for general oversight purposes is weaker than its interest in obtaining information for specific legislative proposals And a generalized interest in obtaining information weighs less heavily in the balancing of the interests of the two branches than a specific articulated need for information Thus for example Attorney General Smith prOperly concluded in 1981 that Chairman Dingell's general interest in overSeeing Secretary Watt's administration of the reciprocity provisions of the Mineral Lands Leasing Act was outweighed by the Executive's foreign policy and deliberative'process interests which required that State Department diplomatic cables and cabinet council related documents remain confidential bSee Appendix A item 13 Procedural Requirements 5 To ensure that congressional oversight does not exceed constitutional limitations or encroach on executive branch functions the Department should formalize the process of congressional oversight inquiries and Department responses -perhaps through a memorandum of understanding with each house of Congress or with individual committeesu The Department already has adopted a number of procedures for responding to congres- sional inquiries but they are not comprehensive We believe that at a minimum congressional inquiries or requests for information should be in writing and should -- come only from congressional leadership or from chairmen or ranking members of committees and subcommittees and should not come from other individual members of Congress staff or ad hog panels such as working groups ''study groups and caucuses -- be addressed to the Department through the Office of Legislative Affairs rather than to client agencies or individuals if the information sought relates to an inves- tigation prosecution litigation or other law enforcement operation and in all other cases a copy of the request should be sent to the Department 29 Watkins v United States 354 U S at 206 Gojack v United States 384 U S 702 1966 Reproduced from the Unclass IDeclassl ed 0 National Archives - 25 articulate with reference to speCific consti- tutional proviSions the constitutional power the requester is exercising and the purpose or interest in furtherance of that power that is served by the request -- be drawn as narrowly as possible consistent with the identified purpose or interest allow sufficient time for the Executive to respond properly 14-day advance notice rule for executive branch testimony -- refrain from calling as witnesses the Attorney General and other high-level officials merely to increase media interest -- refrain from duplicating requests by other congressional committees on the same subject -- refrain from unnecessarily seeking information that is subject to a claim of privilege or legal prohibition against disclosure and -- refrain to the extent possible from seeking classified or other sensitive information or information con- cerning the details of an open investigation 6 The executive branch should have the concomi tant duty to respond and fully to the request or to provide in writing its reasons for declining to comply The response should indicate whether and how the defect can be cured or at least indicate a willingness to consider an accommodation In addition to non-compliance with the general requirements in paragraph 5 specific legitimate reasons for refusing to comply with a congressional request would include the request is unconstitutional because legitimate legislative function the request exceeds the mission delegated to the committee or subcommittee by the House or Senate the request so interferes with a function constitutionally granted the executive branch criminal prosecutions that it essentially negates the Executive's consti tutional responsibility in respect of that function -- the request is overbroad too vague or unduly burdensome the request seeks predecisional deliberative information and in the particular circumstance the Executive's interest in protecting the confidentiality of its deliberative process outweighs Congress' oversight interest Reproduced tom Ihe Unclassified Unclassified Holdings of the National Archives 27 -- the request seeks access to information in open investigative or prosecution files the disclosure of which would jeopardize prosecution for example by revealing litiga tion strategy disclosing the identity of informants or undercov- er agents prompting the flight of targets or witnesses or generating prejudicial pretrial publicity -- the request seeks privileged information or materials whose disclosure is prohibited by law grand jury material protected by -- the request is from an individual Member of Congress in his or her individual capacity as opposed to commit tee or congressional leadership capacity or from unauthorized congressional staff and the request calls for testimony by career employees Executive Privilege 7 Executive privilege is a qualified privilege protecting the confidentiality of presidential communications in the exercise of Article II powers It is derived from the nature of the enumerated powers of the executive branch 31 A claim of privilege is entitled to more deference when it is based on a specific need such as the need to protect military diplomatic or sensitive national security secrets than when it-depends on a broad undifferentiated assertion of the need for confidentiality of presidential communications 32 Thus a generalized asser tion of the privilege might have to yield to a demonstrated specific need for evidence to carry out the functions of another branch just as a generalized request for information by a legislative panel might have to yield to a specific claim of executive privilege 32 8 The President should avoid a constitutional confrontation by invoking executive privilege only as a last resort If executive priyilege is not invoked and no constitu tional issues are presented executive legislative disputes should be resolved by pragmatic problem solving by which each branch seeks to accommodate the other's appropriate interests 33 United States v Nixon 418 U S at 705 33 Ed at 706 33 See id at 713 Reproduced tram the ndassl I lied Holdings 0 the National The courts have agreed that such accommodation and balancing was contemplated by the Framers 33 9 Since the law of executive privilege is general and non-restrictive and specifically contemplates political accommodations 32 the executive branch has consid- erable leeway in pursuing its interest of protecting confidential information The timing form venue and conditions of disclo- sure not just whether to disclose can form the basis for an accommodation Miscellaneous 10 Congress should not enact legislation to provide a standing civil contempt remedy for enforcement of all congressional subpoenas to executive branch officials It should instead decide on a case-by-case basis whether to authorize a civil contempt of Congress remedy by considering specific jurisdictional legislation such as the statute passed to author- ize the Senate Watergate Committee to proceed against President Nixon A generic remedy would discourage executive-legislative accommodation tip the balance of power between Congress and the Executive toward the legislative branch and unnecessarily involve the judicial branch in these political disputes 11 To reduce the risk of leaks Congress or each house of Congress should adopt uniform rules on handling sensitive information 12 In most cases the Executive should retain the discretion to designate witnesses to substitute for witnesses specifically invited by Congress b Appropriations Budget 1 As the primary integrating and policymaking aspect of modern government the budget process is -- and will probably remain for some time -- a major battleground of sepa- ration of powers Efforts should be made to improve the process because Congress has tied itself into an ever-tightening knot crowding out all non-budget matters and not even doing a good job On budget issues 2 It is therefore inevitable as both branches seek to break the budget impasse that pragmatic and creative procedural approaches will be proposed The Executive should 25 See United States v 567 F 2d 121 127 130 D C Cir 1977 45 1g Reproddced from lhe Unclassi ed i Dedassi ed Holdings oi the National Archives encourage innovations subject to the limits of the Constitution We have seen an innovative legislative proposal however in the Gramm-Rudman-Hollings delegation of executive functions to the Comptroller General which raises constitutional questions As the Administration did in that case and with the legislative veto we must hold the line against legislative shortcuts that violate the procedural requirements of the Constitution As the district court wrote in striking down part of Gramm-Rudman- Hollings the separation of powers consists precisely of a series of technical prOV1SlonS that are more important to liberty than superficially appears and whose observance cannot be approved or rejected as the times seem to require gg 3 As an alternative to stop-gap shortcuts like Gramm-Rudman-Hollings the Administration should propose long- term budget process reforms that would force Congress to look at the budget in its entirety The Congressional Budget and Impoundment Control Act of 1974 attempted to do this but it has been ineffective so far The problem may be that the 1974 reforms were merely procedural there were no truly binding substantive requirements Therefore reforms like the balanced budget amendment should be explored It seems likely that only through substantive requirements of some sort can the spending and taxing functions of the government be effectively linked and the budget considered as an integrated whole 4 Moreover legislative shortcuts in the budget process should on occasion be opposed on policy grounds even where no constitutional violation is presented An increasingly serious example of this practice is Congress' use of appropriu ations riders as a means of forcing the President to accept a functionally vetoproof bill In the evolution of the legisla- tive process legislation limited to discrete subjects is being abandoned in favor of lawmaking by continuing resolutions and omnibus bills 31 In such an environment the practical effect of attaching controversial and extraneous provisions to essential government funding legislation is to limit the President's ability to exercise his veto power The implication for sepa- ration of powers is thatlthe balance of power between the Synar v United States Civil Action No 85 3945 slip op at 49 D D C Feb 7 1986 33 9f Ameron v 0 8 Army Corps of Engineers Civil Action No 85-5226 slip 0p at 21 3rd Cir March 27 1986 GAO part of headless 'fourth branch of independent agencies having significant duties in both the legislative and executive branch but residing not entirely within either 4 For example the most sweeping criminal law reform ever the Comprehensive Crime Control Act of 1984 was passed as part of a continuing resolution RWB'oed'fm Unclassi ed I Declassi ed Hoidings he National Archives political branches may shift away from the President by means of a legislative practice that may satisfy the letter of the Constitution but does not seem to comport with the Framers' intent -- confirmed in INS v Chadha that the President must play a meaningful role in all legislative actions 5 Thus the Administration should oppose coer- cive use of appropriations riders While such riders may serve as a congressional check on executive action thus limiting government in some circumstances riders undercut the Presi- dent's constitutional role in lawmaking For example the Department should weigh carefully the enforcement provision in Senator Grassley's bill S 11450 on congressional review of rulemaking That provision would amend congressional parlia- mentary rules to encourage passage of appropriations riders prohibiting of agency rules that have been disap- proved by Congress but not necessarily by the President- The provision is an attempt to bypaSs the President which was the principal defect in the legislative veto and it would coerce the President by requiring him to veto an appropriations bill rather than just a bill limited to the agency rule in question 6 We should also oppose the use of appropria- tions riders to interfere with the President 5 ability to execute or enforce the law Examples that directly affected the Depart ment are the restriction on the Antitrust Division's use of appropriated funds to a-rgue its position on resale pr ice main- tenance and the proposed denial of funds for Civ il Rights Division review of consent decrees after Firefighters Local Union No 178A v Stotts 32 Congress may of cou-rse enact new or diff fE t Paws but it may not arrogate to itself the power to interpret and implement existing law which is a central function allocated by the Constitution to the executive branch Thus at least as a matter o-f policy Congress ought not to be able to restr-ict through an authoriza-tion or appropriations bill the execut ive branchus spend ing on enforcement of lawsu while leav ing those laws substantively unchanged gg 6 Indeed the Executive should seek to exercise that role more fully for example by using presidential signing state ments more often and increasing its role in legislative affairs by submitting more bill reports and testimony and more actively participating in the creation of legislative history helping to write committee reports 32 104 2576 1984 gg A somewhat related interference -- this time from the judicial branch -- is the issuance of consent decrees that commit the Executive to expend funds that Congress has not Footnote Continued Reproduced tom the Unclassi ed I Declassi ed Holdings of the National Archives 31 7 Some believe that the increasingly-evident congressional inability to deal with the budget problems is strengthening the case for the line-item veto As President Reagan has often said if Congress cannot make the tough spending decisions it should give the President the tools -- the line- item veto -- and he will make those decisions The line-item veto would provide presidential accountability for federal spending and ensure that the national interest is taken into account-in a budget process that currently may overemphasize local and special interests because of the orientation of members of Congress unfortunately it would also further diminish legislative accountability We Should be careful of course to structure the line item veto in a way that comports with the procedural requirements of the Constitution The reform can probably be made constitutionally so long as each I'item that the President would be authorized tO'veto is technically in the form of separate legislation However some may make an opposing policy argument along the lines of our argument above concerning appropriations ridersa that such a procedure would violate the spirit of separation of powers c Advice and Consent 1 In the next two years President Reagan can expect to see renewed attempts by Senate Democrats to inject philosophical criteria into the examination of judicial nominees In preparation for future Supreme Court confirmation battles the President's opponents in the Senate will seek to block individual conservative candidates for the lower courts and make philoso- phical disagreement a legitimate ground of opposition 2 The Justice Department must be prepared to demonstrate emphatically the historical impropriety of politi cal philosophical opposition to judicial nominees This can be done in part by citing chapters of The Eederalist No 66 that indicate that the Framers contemplatEd rejection of presidental nominees and rejection of only those nominees lacking in merit The Department should draw attention to the long tradition of Senateideference to the President's lower court nominations a deference'based in part on the Senateus signifi- cant role in suggesting suitable candidates to the President 3 The Department should publicize the findings of leading court scholars such as Henry J Abraham and Sheldon Footnote Continued appropriated and that have not been budgeted for action in question or that commit the Executive to seek a particular appropriation or budget authorization On March 13 1986 you announced a Department policy against such consent decrees Reproduced iiom e ndass De'da's si dd Holdings of the Nalional Archives Goldman Ell Abraham has shown that ideological and philosophical compatibility between Presidents and their nominees has been a leading factor perhaps the leading factor in presidential nominations to the Supreme Court Goldman has shown that the judicial selection policies of this Administration in such areas as age experience and professional background and competence are comparable to those of our recent predecessors 4 The Department should insist on more coopera tion from Republican Senators When we defer to district court recommendations put forward by a Republican Senator it is reasonable to ask for his or her cooperation on other judicial nominations In addition when we go forward with a Senator's recommendation we should not have to bear the entire political burden of advancing the nomination the Senator should also be required to expend his or her own political capital d Refusal to Enforce or Defend Unconstitutional Statutes 1 The Department should enforce all federal statutes and defend them against court challenges to their constitutionality except when in the Department s view the statute may unconstitutionally encroach upon the executive branch or 2 is otherwise clearly unconstitutional The Depart- ment's traditional position -- see Attorney General Smith's April 6 l98l letter to Senators Thurmond and Biden has limited the second exception to when prior precedent overwhelm- ingly indicates that the statute is invalid We do not believe that limiting ourselves to prior judicial precedent is necessari ly the only principled approach If we are convinced that a statute is unconstitutional based on the text of the Constitu- tion then pursuant to the President's duty to uphold the Constitution we should not defend the statute whether prior judicial precedent exists or not Current application of this rule may be called for in federalism casesa for example the Department must closely examine federal statutes infringing on state sovereignty and determine whether to defend them 2 A presidential veto is considerably preferable to a Justice Department refusal to defend however The Depart ment should therefore hesitate to invoke these exceptions especially when the current administration has declined to veto the offending statute It might be alleged that such an adminis- tration was bypassing the lawmaking process prescribed by the Constitution and avoiding a veto override by allowing enactment 1 See Henry Abraham Justices and Presidents A Political History of Appointments to the Supreme Court 1985 Sheldon Goldman Reorganizing the Judiciary the First Term Appointments 68 Judicature 313 1985 Reproduced from the Unclassn ed I Dedessu ed Holdings 0 the Nabonal Ardzives 33 and then in effect invalidating the statute by declining enforce- ment and defense Our response of course must be that a failure to veto cannot constitute a waiver of the constitutional duty not to enforce unconstitutional laws 3 Although presidential vetoes are preferable to Justice Department refusals to defend vetoes can occasionally be impracticable because an unconstitutional provision is part of essential legislation -- for example the Competition in Con tracting Act which was part of the essential Deficit Reduction Act of 1984 -- or else is a non-germane rider on a larger legis- lative measure In such a case the President should indicate in his signing statement his constitutional objections and desire that the constitutionality be tested in court or corrected by Congress and the Department should notify Congress when the issue does arise in litigation gg Congress should be given the opportunity to take timely legislative action to correct the constitutional defect e Foreign Relations l The interaction between the President and Congress regarding foreign relatiOns is a vitally important subset of the separation of powers between the political branches -- because of the intrinsic importance of fereign relations and because both branches are granted broad powers the exercise of which often conflicts NOnetheiessg we make only passing refer- ence to the subject in this paper because the Domestic Policy Council probably does not have jurisdiction to adopt procedures in this area Moreover shoudd we wish to develop this subject adequately we would need to consult the State and Defense Departments the National Security Council and the Centrai Intelligence Agency where the principal expertise and experience lies We will thus limit ourseives here to a few broad and perhaps obvious observations 2 In the sphere of foreign relations a reading of the Constitution discloses no clear definition as to where presidential prerogative ends and legislative authority begins Certain specific delegations of power are spelled out for example the President is the commander-in chief of the armed forces and has the power to make treaties and appoint ambassa dors but the Senate must give its advice and consent on treaties and ambassadors and Congress has the power to declare war and provide the armed forces Nowhere in the Constitution however is there unambiguous guidance as to which branch of the govern- ment has the final authority to conduct external relations This course is especially justifiable where as in the case of Gramm-Rudman-Hollings Congress has designated an alternative to the questionable provision Reproduced Ihe Holdings ol Ihe National Archwaa 34 Given the President's broad executive authority however we favor interpretation of the Constitution that commits to the President the predominant power over the conduct of foreign relations This has historically been the case 3 Thus to justify individual foreign relations actions the Administration should cite the broadest constitu- tional power or authority available for example preferring the executive and commander in-chief powers over more limited grants In addition to substantiating the action most effective- ly that would allow flexibility on follow-up actions 4 Moreover the President not Congress or individual members of Congress should speak and act on behalf of the country in its foreign relations A prerequisite oft effective foreign policy is the presentation of a single and united position by the United States government on whatever issue is being addressed Given the broader foreign relations respon- sibilities granted the President by the Constitution and Con- gress' inability to speak with one accountable voice the Presid nt must be the spokesman 5 We should seek to preserve the position that a substantial part of the War Powers Resolution is unconstitu- tional The Resolution arguably upsets the Constitution's balance of war powers between the President and Congress and in effect attempts to amend the Constitution by purporting to define the Presidentns powers to commit military forces as limited to specifically enumerated circumstances In light of the breadth of the executive power and commander-in chief clauses of Article II and the more limited grants of legislative war powers under Article I we believe that the Constitution grants the President all war and other foreign relations powers inherent to a sovereign nation except those specifically granted Congress principally the power of the purse and the powers to raise troops and declare war 6 In any event in light of the Supreme Court's decision in INS v Chadha a strong argument can be made that at least the legislative veto portion of the War Powers Resolution together with a wide variety of other foreign relations oversight legislation is unconstitutional See United States v Curtiss Wright Export Corp 299 U S 304 319 1936 Federalist No 64 Jay and No 75 Hamilton Reproduced rrb'm u Wed Holdings 0 Ihe National Arctmes EXECUTIVE BRANCH METHODS FOR RESPONDING TO CONGRESS The usual executive branch posture in legislative branch conflicts has been reactive Typically in the overs1ght area for example a congressional committee requests information that an agency or the White House does not want to divulge a flurry of executive branch meetings and other activities follow accompanied by Justice Department advice if executive privilege is being considered legal posturing and then pragmatic negotiat- ing with Congress come next and ultimately some or even most of the information is produced to Congress The executive branch actors breath a sigh of relief that the publicity and the damage to the executive branch deliberative process were not worse and they go on to other business As we view this scenario inadequate attention is paid to longer-term constitutional and institutional interests or just as significantly to preventing or discouraging future con- flicts The executive branch's options indeed are most limited when under the pressure of an immediate conflict it must develop a position and then attempt to work things out with Congress But the responses need not be as reactive and myopic as they tend to be To the extent that general procedural understandings can be entered into with Congress discussed below the responses in individual cases can be improved The specific direct means for responding to congres- sional encroachments are discussed in Part II of this repOrt particularly in the section on congressional oversight More generally the first step in any individual conflict must be to demand that Congress clearly and precisely identify in writing the constitutional power it is exercising and the legitimate interests under that power that it is seeking to promote We do not expect that this procedure would necessarily reduce congres- sional requestsa but it might help discipline Congress by at least making members think about what their constitutional duties and responsibilities are We must undertake of course the concomitant obligation to engage in the same analysis when considering whether to contest a congressional action and if we determine to do so then to make a similar statement to Congress An additional general suggestion is that we should attempt to negotiate on individual conflicts with congressional leadership not just committee chairmen because the leadership may be more concerned with longer-term institutional interests than are the committee chairmen Despite the clear value of the range of possible direct responses to congressional encroachments discussed in Part II for the most part they are defensive measures designed to mitigate our damageu Ultimately however even if our immediate interests are not seriously harmed these direct reactions may be unlikely to avoid the negative public reaction that Congress can generate One way to go on the offensive to some degree in a separation of powers conflict would be to seek to connect or link the congressional action with_another issue between the Reproduced from the Unclassi ed I Dedassi ed Holdings 0 the National Archives two branches concerning which we have more leverage or are more willing to make concessions As with linkage in the foreign relations sphere of course this form of hardball threatens greatly to politicize or escalate a conflict There is no doubting however that linkage may on occasion be effective although it will generally require greater coordination of executive branch relations with Congress than currently exists We recommend proceeding cautiously on linkage Relations between the branches are complex and contentious enough as they are injecting additional extraneous factors into indi vidual conflicts carries a significant risk of worsening matters Moreover so long as relations are primarily with committee and subcommittee chairmen linkage to matters not directly involving them may be of little avail In sum while we should always consider at the time of a dispute whether other pending matters might usefully be brought into the discussion we should under- take such linkage only after careful consideration of the poten tial costs Beyond linkage we have identified the following types of indirect but active as opposed to reactive Executive response that may be appropriate in certain cases Bully Pulpit The President has a unique role as the only nationally elected political leader In important separa- tion of powers conflicts the President could be enlisted to deal directly with Congress through formal communications or inform- ally by calling or meeting with key members or to make public statements if you can't make them see the light make them feel the heat The latter may ultimately prove necessary if our partisan opponents further delay the confirmation of our judicial appointments Presidential Vetoes Because of obvious political risks Presidents are reluctant to use their veto power We believe that Presidents should be less reluctant to use the veto in the separation of powers context Vital constitutional principles and interestslare at stake when Congress passes bill that encroaches on the EXecutive or attempts an end run around constitutional procedures Aggressive use of the veto authority is appropriate in those circumstances Firmer Resolve As noted above the executive branch typically caves in sooner or later in conflicts with Congress Perhaps we should not be so ready to do so We could instead resist more strenuously in appropriate cases and make it clear to Congress how high the stakes can be in a constitutional confrontation Congress is also capable of backing down Publicity and Public Opinion Members of Congress are experienced at using the media and other techniques to gain public support for their actions The executive branch often 'Wm- Reptodumd from the mad I Dedassi ed Holdings of the Nabonal Archives does the same of course to enlist support for its policies We should also consider using such techniques from time to time in separation of powers conflicts Congressional Documents The Executive does not have an oversight role over comparable to that which Congress exercises over the Executive In the context of executing the laws however rt may be appropriate on occasion to request documents from Congress For example where necessary for enforcement purposes we might seek to obtain documents such as transcripts or staff notes from congressional committees Crosscutting Laws Many crosscutting laws -- national parity requirements such as civil rights rules that apply generically to many different federal and state govern mentai programs and activities do not apply to Congress or its members or institutions The Executive could highlight this inequitable situation and propose legislation to apply cross- cutting laws to Congress laws which might be administered by the executive branch Rolitical Support The President has both governmental and political capacities In his capacity as leader of a national political party he has the ability to give or withhold support for election campaigns of members of his party In considering whether to support a re-election campaign of a member of Gongressu the President can certainly take into account that member's record in office including the degree of his coopera- tion with the executive branch In the long run the most promising method for dealing with Congress on these matters is to improve the relationship through means other than resolution of individual conflicts We should seek commitments from congressional leadership and commit- tee chairmen to procedural reforms of the sort referred to in this report formalization of contacts such as requiring congressional inquiries to come from committee chairmen written articulation of congressional authority and interests and to the extent that a decentralized body like Congress can do so coordination of congressional actions through required involve- ment of representatives of the particular house 5 leadership and counsel's office Of course while we may stand firm on the first two points we are in no position to insist on the third In addition to seeking such standing agreements per- haps through memoranda of understanding we should persist in stating our views on how these matters should be handled in congressional testimony bill reports and other formal and informal communications with Congress These appeals should emphasize the appropriate separation of powers and functions under the Constitution but should also recognize the need for comity between the branches and for each branch's forbearance where the other's constitutional authority and legitimate inter- ests justify it fired I Mime Holdings oi the National Archives IV RECOMMENDATIONS The principles and guidelines proposed in this report are only of academic utility unless actions are taken to imple ment them to ensure that Administration policymakers refer to them as they consider separation of powers issues We therefore make two general recommendations one substantive one procedural Summary of Recommendations Substantively we recommend that the Justice Depart- ment's Strategy Planning Group develop from this report a state- ment of basic separation of powers principles for adoption by the Domestic Policy Council -- along the lines of the recent_ effort in the federalism area by the DPC's Working Group on Federalism Procedurally we recommend that the Strategy Planning Group also develOp for DPC adoption procedures for ensuring that these substantive principles are followed in separation of powers conflicts The procedures would call for greater formalization of the process for handling these conflicts greater articulation in conflict situations of each branch's constitutional authority and its legit imate interests and greater coordination of executive branch responses to congressional assertion of authority What we envision for these implementing procedures can be illu- strated with respect to congressional oversight which is the major source of disputes between the legislative and executive branches Our specific recommendations on handling oversight matters are detailed in Part II but they can be generally de3cribed here We have concluded that the Administration should formalize the oversight process by requiring that congressional requests be in writing and'oniy come from committee or subcom- mittee congressionai chairmen or leadership The requests should articulate with reference to specific constitutional provisions the constitutional power the requester is exercising and the purpose or interest in furtherance of the power that is served by the request executive responses should similarly state the reievant constitutional authority and legitimate interests The coordination of executive branch responses should be improved 'perhaps by establishing a coordination and review process Reproduced from m ii u ified' Dedassi ed Holdings 0 the National Archives 39 - Discussion of Recommendations One specific question we especially wish to explore with others in the Department is whether and how the Justice Department should play a greater coordination and representation role in separation of powers conflicts Currently the Depart- ment becomes actively involved once matters start escalating as executive privilege is claimed and litigation and other unhappy consequences are contemplatedl but one and the divisions become involved at an earlier stage -- when we could play important advisory and poliCy roles only on an erratic when asked basis If greater uniformity and lasting effect is to come from our efforts in this area it will be because the Administration moves beyond its reactive posture toward an organized active one Earlier Justice_Department involvement seems critical for that We should consider whether that involvement should include enhanced responsibilities in coordination within the executive brancho and representation Obefore Congress such an expanded role would tax Department resources but I believe that it could be effectively handled It may be helpful to compare the approach we are recommending with the effort the Administration is now under- taking in the federalism area Through the DPC's Working Group on Federalism the AdministratiOn is attempting both substantive and procedural initiatives to advance the Presidentus federalism philosophy Substantively the President has already signed a statement of general federalism principles which the working group developed and the group may now prepare more specific principles to assist decisionmaking in various areas of Executive action Procedurally the working group is reviewing existing Administration policy development mechanisms to determine whether they are adequate to ensure that the federalism principles are followed Similarly we are proposing both substantive and procedural efforts on separation of powersu Our emphasis may be different however in the federalism context I believe the principles may be somewhat more important than the implementing procedures the important thing is that Administra- tion policymakers are governed by federalism principles that have been adopted as Administration policy while Administration procedures for ensuring compliance are important it may simply be a matter of adjusting existing procedures in the separation of powers context the procedural reform would seem to be more important principally because there are so few procedures currently in placeu In viewing the large and varied terrain of separation of powers conflicts we have been struck most by the ad hog informal and decentralized way these matters are gener- airy handled We are therefore advocating greater formalization articulation_and coordination for the process Reproduced tom the Undassi ed Declassf ed Holdings 0 Ihe National Althwes 4o The substantive principles we pay such attention to in Part II are certainly important but they are not rigid rules on approaching separation of powers Rather they constitute an analytic framework a way to think clearly about the subject As important as they are we believe that it is even more import- ant that procedures be established so that disputes with Congress are handled on a more principled and coordinated basis If the Administration approves the Department's pro- posals in this area the next logical steps would be to put into place the coordination system for individual conflicted and to begin discussions with the congressional leadership on general procedures and understandings In the latter regard we should first seek agreement with both parties leadership intg jh house but be prepared to acknowledge Gongress' decentralization and different committee power centers and thus deal directly with committee chairmen These efforts should be supplemented by statements of our positions in congressional testimony bill reports speeches articles and other communications- I have talked informally with members of the Strategy Planning Group about OLP's separation of powers project but I hope we will now have the opportunity to work more actively and concretely with them to develop this report's ideas and of course the ideas that they will bring to the effort The Depart- ment has a unique leadership opportunity in the separation of powers area and OLP is eager to contribute in any way you request Reproduced from the I Declassi ed Holdings of the National Archives APPENDIX A SUMMARY OF REAGAN ADMINISIRATION CONFLICTS WITH CONGRESS The purpose of this appendix is to provide a factual foundation and reference for the establishment in Part II of the paper of a framework of analysis for approaching separation of powers conflicts We here catalog the major events and issues of controversies with Congress that have significantly affected the Reagan Administration 1 Legislative Veto 2 Refusal to Enforce or Defend Unconstitutional Statutes 3 Pocket Veto Intersession Adjournments 4 Gramm-Rudman-Hollings 5 Line-Item Veto 6 Presidential Spending Deferrals 7 Congressional Interference with Appointment Power 8 Senate Confirmation 9 Recess Appointments 10 Status of Independent Agencies 11 Regulatory Review 12 Burford EPA Document Requests 13 Watt Interior Document Requests 14 Public Access to Presidential Records 15 Congressional Oversight Interference with Prosecutions 16 Legislation to Amend Rule 6 e Congressional Oversight Cornelius Discharge 18 Congressional Impediments to Executive Branch Management 19 War Powers Resolution 20 Strategic Arms Limitation Treaties SALT 21 American Cetacean Society 1 Legislative Veto Over the last six decades -- until 1983 -- Congress often sought to retain control over administrative and other authority that it delegated to the executive branch by including legislative veto provisions in the delegating legislation In the legislative veto's most common form executive branch de cisions could be reversed within a specified time period by a disapproval resolution of one or both houses of Congress or sometimes even a committee Advocates of legislative vetoes found them to be pragmatic efficient accommodations between the two branches by which Congress was willing to give broad discre- tion to the executive branch in exchange for retaining the opportunity to review and disapprove the executive's exercise of that discretion Opponents -- including one Justice Department after another -- argued that the legislative veto violated the separation of powers because it interfered with the executive's power to execute the laws and was a legislative shortcut that did not satisfy the provisions of the Constitution governing Reproduced from he Unclassi ed Declassmed Holdings 0 the National Archwes legislative actions They argued that rather than enact open ended delegations with legislative vetoes Congress should do the job right in the first place by passing precise delega- tions limited by clear standards In 1983 the Supreme Court held the legislative veto unconstitutional INS v Chadha 462 U S 919 1983 In a broad opinion concentrating on the procedural requirements of the Constitution Chief Justice Burger wrote for the Court that every legislative action requires bicameral congressional action and presentment to the President The Court defined legislative action broadly to include all actions with the purpose and effect of altering the legal rights duties and relations of persons including Executive Branch officials outside the Legislative Branch 462 U S at 952 Notwithstanding Chadha the debate over the legislative veto has continued The issue now is how Congress can accomplish the goals of the legislative veto using a constitutional means The most common proposal is for the executive branch to report and wait on proposed actions in order to allow Congress to pass a joint resolution of approval or disapproval which would be presented to the President Various congressional parliamentary innovations have been suggested that would make it easier for Congress to include its joint resolution in broader legislation that the President would not find feasible to veto For an example see the Regulatory Review summary in this section describing Senator Grassley's post-Chadha legislative veto proposal for congressional review of agency rulemaking The major remaining legislative veto issue in the courts is severability whether an individual legislative veto provision is severable from its statutory context or whether instead the entire statutory scheme must be struck down This issue will be addressed next term in the Supreme Court Alaska Airlines Inc v Brook 54 U S L W 3582 No 85-920 The severability issue arises in a variety of important contexts including the War Powers Resolution and home rule for the District of Columbia 2 Refusal to Enforce or Defend Unconstitutional Statutes The general rule is that the Department has a duty to defend in court an act of Congress against a challenge to its constitutionality There are two well-recognized exceptions In an April 6 1981 letter to Senators Thurmond and Biden Attorney General Smith stated that the Department refuses to defend an act of Congress only in the rare case when the statute either infringes on the constitutional power of the Executive or when prior precedent overwhelmingly indicates that the statute is invalid The authority for this policy was summarized in Attorney General Smith's February 22 1985 letter to Chairman Rodino That letter relied on the fact that in addition to the duty of the President to uphold the Constitution in the context Reproduced from the Unclassi ed 1' Declassi ed Holdings at the National Names of the enforcement of acts of Congress the President also has a constitutional duty to protect the executive branch from en- croachment by the other branches The PreSLdent's oath to preserve protect and defend the Constitution thus necessarily implies an obligation to resist congressional actions that would impermissibly weaken the executive branch as well as actions violative of other constitutional mandates While this Administration has never invoked the clear- 1y unconstitutional exception it has invoked the encroaches on the Executive exception three times It has challenged the constitutionality of provisions of the Bankruptcy Amendments and Federal Judgeship Act of 1984 that sought to continue in office all existing bankruptcy judges which amounted to congres- sional appointment of officers of the United States which is an executive function under the Constitution 2 provisions of the Competition in Contracting Act of 1984 CICA that granted the Comptroller General the authority to lift the stay automatically imposed under CICA when a bid protest is filed thus a legisla- tive branch officer binding executive agencies in the bid protest process and 3 provisions of the Gramm-Rudman-Hollings deficit reduction legislation that vest in the Comptroller General significant executive functions for administering the budget a legislative officer ordering the executive branch to reduce appropriated spending levels A presidential veto was deter- mined not to be feasible in these cases thus necessitating the refusal to defend the 1984 Bankruptcy Act was legislation to continue the bankruptcy court system after the Bankruptcy Reform Act of 1978 expired in June 1984 CICA was enacted as part of the Deficit Reduction Act of 1984 and the general thrust of Gramm Rudman Hollings was deemed critical to breaking the budget deadlock 3 Pocket Veto Intersession Adjournments The Pocket Veto Clause of the Constitution Article I 7 cl 2 provides that a bill not signed by the President within ten days of presentment does not become law if Congress by their Adjournment prevents its Return The Senate members of the House of Representatives and the Speaker and Bipartisan Leadership Group of the House sued the Executive in January 1984 seeking a declaration that the President's pocket veto in Novem- ber 1983 of H R 4042 a bill extending certain conditions on military aid to El Salvador until September 30 1984 was invalid and that the bill had become law The novel issue presented was whether the Pocket Veto Clause applies when Congress is in adjournment between sessions 0n the same day November 18 1983 that Congress passed H R 4042 it also ended the first session of the 98th Congress and adjourned until January 1984 the President did not sign the bill or return it to Congress with a veto message but rather issued a statement on November 30 1983 that he was withholding his approval and that under the Pocket Veto Clause the bill had not become law In August 29 1984 reversing the district court's dismissal of the complaint Repmduced'from the Unclassi ed I Declassi ed Holdings of the National Archives the court of appeals ordered judgment for the plaintiffs but it did not issue its opinions until April 1985 Barnes v Kline 759 F 2d 21 D C Cir 1985 In the interim however H R 4042 had expired on September 30 1984 On March 3 1986 the Supreme Court agreed to hear the executive branch's appeal of the court of appeals' decision Burke v Barnes 54 U S L W 3582 No 85-781 The Department is arguing'that the court of appeals incorrectly held that the houses of Congress and their members have standing to complain that the PreSLdent is not treating a bill as law and that the Pocket Veto Clause does not apply to intersession adjournments of Congress We are also making the threshold argument that the court erred by refusing to vacate its judgment as moot following the expiration of H R 4042 and that the opinions it issued after that expiration are just advisory Arguments in the Supreme Court are not expected until Fall 1986 4 Gramm-Rudman-Hollings On December 12 1985 President Reagan signed into law landmark legislation to reduce the federal government deficit in an orderly fashion in route to a balanced budget by 1991 the Balanced Budget and Emergency Deficit Control Act of 1985 commonly known as the Gramm-Rudman Hollings Act When he signed the legislation however the President noted that certain of its provisions unconstitutionally encroached on his prerogatives by conferring executive powers upon the Comptroller General a legislative branch officer not under his control Specifically the automatic deficit reduction provisions that would come into play if Congress is unable to meet the deficit targets estab- lished by the Act are unconstitutional because they authorize the Comptroller General who is under the control of the legislative branch to specify budget reductions that the President must effect through a sequestration order to government agencies The President expressed his hope that the constitutional problems would be resolved Congressman Mike Synar and 11 other Representatives who had voted against the Act then filed suit in federal court challenging the constitutionality of the Act's automatic deficit reduction process Synar v United States Civil Action No 85-3945 D D C They alleged violations of the delegation doctrine and separation of powers principles 1 the delegation to administrative officers and the President of authority to issue the sequestration order is an unconstitutional delegation of legislative power and 2 the power given to the Comptroller General a legislative branch officer is executive power that can only be assigned to an executive branch official After notifying Congress that it would not defend the constitutionality of the automatic deficit reduction process the Justice Depart- ment filed papers in court arguing that the congressional plain tiffs lacked standing and on the merits disagreeing with plaintiffs on point 1 and agreeing on point 2 Reproduced mm the Unclassi ed I Declassi ed Holdings 0 the Nabonal Archives On February 7 1986 the district court found that the congressional plaintiffs had standing and declared unconstitu- tional the automatic deficit reduction process The court's standing holding was not surprising because the court had to follow the law of the D C Circuit which recognizes standing in individual Members of Congress based on their personal interest in the exercise of their governmental powers See Moore v U S House of Representatives 733 F 2d 946 952 D C Cir 1984 cert denied 105 S Ct 779 1985 On the merits the court agreed with both Justice Department positions finding that delegation of the power to make determinations on which budget cuts would automatically be based was not an unconsti- tutional delegation of legislative power but 2 the Act uncon stitutionally conferred executive powers on the Comptroller General who is not independent from the legislative branch since he may be removed by Congress not just by impeachment -- which is the only way that executive branch officers officers of the United States may be removed but also for specified causes including inefficiency and neglect of duty The court stayed its order pending the Supreme Court's decision on appeal which is expected by July 1986 In a related development on March 27 1986 the Third Circuit came to a different conclusion on the status of the Comptroller General holding that he is an independent official with duties involving both the legislative and executive branches who may constitutionally exercise the powers conferred upon him by the Competition in Contracting Actl Ameron Inc v U S Army Corps of Engineers Civil Action Nos 85-5226 85-5377 slip op at 4 3rd Cir March 27 1986 5 Line-Item Veto Repeated proof of congressional inability to resolve the budget crisis is strengthening for some the case for the line-item veto which would authorize Presidents to veto specific appropriation items and thus free Presidents from the take it or leave it dilemma they face when presented with appropriations bills or continuing resolutions The line-item veto power has been sought by Presidents ever since impoundment the executive practice of impounding appropriated money simply by not spend- ing it -- was outlawed by the Budget Control and Impoundment Act of 1974 President Reagan has long been an advocate of the line-item veto and the Administration has endorsed Senator Mattingly's bill S 43 to give the President such authority Opposition to the line-item veto is based on consti- tutional and institutional considerations Opponents claim that the Constitution commits the appropriation and spending power to Congress and that a line-item veto bill like S 43 would uncon- stitutionally and unwisely shift this responsibility to the President but supporters argue that the current congressional practice of routinely incorporating appropriations bills into unvetoable continuing resolutions has weakened the presidential Reproduced from the Unclassxl ned I Declassi ed Holdings 0 the National Archwes role in budgetary lawmaking beyond the Framers' intent Oppo- nents also charge in a reflection of the impoundment debates of the early 1970's that giving the President unrestricted line item veto authority would have the effect of giving the president a permanent unrestricted power to reorder congressionally deter- mined priorities While strengthening the presidential role in the budget making process they argue further that legislative accountability would be sharply diminished Many advocates of the line item veto who are concerned about the constitutional objections support a constitutional amendment to provide for the power see S J Res 162 6 Presidential Spending Deferrals In the Administration s budget proposal for FY 1987 the expenditure of about $15 billion of funds already appropri- ated for FY 1986 was proposed to be deferred until FY 1987 The President's authority to defer spending from one fiscal year to the next was granted by the Budget Control and Impoundment Act of 1974 which included a legislative veto provision to ensure congressional control of deferrals On February 19 1986 four Democratic congressmen and certain city interests filed a lawsuit challenging a deferral of $5 billion for housing and urban development grants City of New Haven v United States Civil Action No 86-0455 The lawsuit alleges that such control was essential to the deferral scheme contemplated by Congress -- and thus not severable after Chadha ruled unconstitu- tional the legislative veto -- and therefore the deferral au- thorization should be struck down In a related development the Supreme Court agreed on March 3 1986 to hear a case that may clarify the rules on severability Alaska Airlines Inc v Brock 54 U S L W 3582 No 85 920 On March 4 1986 the General Accounting Office notified Congress that it intends to sue the Energy Department to chal lenge the proposed deferral of $157 million for the Strategic Petroleum Reserve This amount apparently represents what the Administration proposed to defer last year which Congress expressly disapproved in DOE's 1985 supplemental appropriation GAO claims that such an attempted redeferral is not within the authority granted by the 1974 impoundment legislation and that the Administration is using the deferral procedure not as the cash management device Congress intended but rather as a means to eliminate programs some programs might need to shut down if they don't receive funding in a timely manner in effect a line-item veto The Administration is opposing legislation H R 4205 that would limit the deferral power by requiring preposed defer rals to be approved by legislation Repmduoed from the Unclassi ed lDeclass ed of the National Archives 7 Congressional Interference with Presidential Appointment Power The Appointments Clause of the Constitution Art II 2 c1 2 provides in pertinent part that the President shall appoint with the advice and consent of the Senate all officers of the United States whose appointments are not otherwise provid- ed for and that the Congress may by law vest the appointment of such inferior officers as it thinks proper in the President alone in the courts of law or in the heads of departments a Bankruptcy Amendments and Federal Judgeship Act of 1984 Two sections of this Act constitute the most serious interference with the presidential appointment power in recent years Replacing the bankruptcy system established by the Bankruptcy Reform Act of 1978 which expired in June 1984 the Act creates a new bankruptcy system and vests the power to appoint bankruptcy judges under that system in the courts of appeals As an interim provision however section 121 e of the Act extended the term of any bankruptcy judge who was serving when the existing bankruptcy court provisions eXpired on June 27 1984 to the day of enactment of the Act July 10 1984 Section 106 extends these retroactive appointments so that they will expire on the date four years after the date such bankruptcy judge was last appointed to such office or on October 1 1986 whichever is later In refusing to defend sections 106 and 121 e of the Act the Department took the position that Congress was unconsti tutionally attempting to appoint officers of the United States in contravention of the Appointments Clause See Buckley v Valeo 424 U S 1 127 1976 The bankruptcy judges' offices and terms had expired on June 27 and the July 10 retroactive reappointment was an improper congressional appointment Although we recog- nized that sections 106 and 121 e constituted a more immediate infringement of the appointment power of the judiciary the Department contended that the potential usurpation of presiden tial appointment power by Congress was also so substantial that failure to defend the Act was justifiable A district court has held the appointment provisions in the Act to be constitutional In Re Benn 11 Collier Bankr Cas 2d 798 N D Cal 1984 That decision is currently on appeal before the Ninth Circuit b United States Commission on Civil Rights Act of 1983 This Act interferes with presidential appointment power in two ways First some of the Civil Rights Commission members are to be appointed by Congress To the extent that these commissioners exercise significant authority pursuant to the laws of the United States or perform a significant governmental Repmduced from lhe Undassi ed I Declassi ed Holdings 0 the National Archwes duty pursuant to the laws of the United States they are officers of the United States and must be appointed pursuant to the Appointments Clause See Buckley_v Valeo 424 U S at 126 141 Second the Act interferes with the President's removal powers by providing that commissioners may only be removed for neglect of duty or malfeasance in office c Reconfirmation of Cabinet Members and Other High Officials The proposed Senate Reconfirmation Act of 1984 S 2604 would have subjected cabinet members and other high executive branch officers to reappointment and reconfirmation in the event of a second presidential term The Department opposed the bill on the grounds that it would violate the longstanding constitutional tradition that cabinet officers serve until removed by the President 8 Senate Confirmation Recent confirmation battles involving presidential appointments to the judicial and executive branches have con- formed to longuterm historical patterns although the frequency of such battles has increased significantly Controversial candidates are privately opposed on philosophical grounds but publicly criticized for other more politically acceptable reasons such as lack of ethics or lack of candor before Senate committees a Judicial Nominees In the first term of the Reagan Administration two controversial judicial nominees were Sherman Unger and J Harvie Wilkinson Mr Unger a candidate for the Federal Circuit was actively opposed by the American Bar Association which rated him not qualified Ethical questions were raised concerning the nominee's alleged ex parte meetings with a judge concerning a contested matter in the judge's court and certain supposed tax difficulties He died of cancer in December 1983 before his nomination battle was resolved Mr Wilkinson a law professor at the University of Virginia and former Justice Department official and Supreme Court law clerk was nominated for the Fourth Circuit in November 1983 He was immediately attacked by liberal interest groups for his opposition to forced busing racial quotas and other affirmative action policies His nomination ran into serious trouble in the Senate however over his lack of trial experience and his allegedly improper lobbying activities with the ABA After repeated delays and testimony relative to the lobbying effort Mr Wilkinson was confirmed on August 13 1984 In the second term Senate Democrats have increasingly employed obstructionist tactics Although there is general agreement that President Reagan has a right to appoint judges who Reproduced from me Undassx ed lDeclassI ed Holdings ol Ihe Nati'onal Aromas share his political philosophy although even that is increas- ingly being called into question some Democrats have complained that his nominees are too young insufficiently qualified and more rigidly ideological than the nominees of past Presidents Democratic dissatisfaction coalesced in the movement to block the nomination of Judge Alex Kozinski to the Ninth Circuit Allega- tions against Judge Kozinski included lack of judicial tempera- ment due to his activities as Special Counsel to the Merit Systems Protection Board flaunting the will of Congress by turning the Merit Systems Protection Board from a whistle- blower's agency into one that supposedly stifled dissent among government employees red-baiting activities because he purportedly claimed that a group opposed to his nomination had Marxist affiliations and misleading the Senate Judiciary Commit- tee Despite Senator Thurmond's characterization of the charges against Judge Kozinski as the puniest most nitpicking charges of any hearing I have ever held he was only confirmed by a vote of 54 to 43 In the fall of 1985 Senate Democrats also put a hold on all judicial nominees until Republicans agreed to extend by two weeks the time between nomination and committee confirmation vote during which to examine the backgrounds of judicial candi- dates Under the agreement controversial nominees may be placed on a slower track to Senate confirmation Apparently any Senator has the power to designate a nominee controversial 'I The first major judicial nomination controversy of 1986 involved Sidney A Fitzwater a 32-yearwold state judge from Texas nominated for the federal district court in the Southern District of Texas Fitzwater was accused of racial insensitivity in connection with his posting of signs cautioning against voting fraud There were also complaints that he lacked sufficient maturity He was confirmed in March by a relatively close vote of 52 to 42 following a narrowly-clotured filibuster Jefferson B Sessions U S Attorney for the Southern District of Alabama was nominated for the federal bench in that district in October 1985 No action was taken on his nomination in 1985 but the President resubmitted his name to the Senate in January 1986 Attention initially focused on his vigorous prosecution of three long-time civil rights leaders on voting fraud charges The three were acquitted by a jury When it became apparent that Sessions had acted properly in bringing the charges Senate Democrats sought other evidence of racial insensitivity It was alleged that Sessions had referred to the NAACP and the ACLU as um-American groups In the midst of a criminal case against a Ku Klux Klansman the candidate jokingly stated that he used to like the Klan until he found out that its members smoked pot Also Sessions allegedly agreed with a judge's assessment of a white civil rights attorney as a dis- grace to his race The Judiciary Committee has not yet taken any action on his nomination Reproduced from the Unclassi ed IDedass ed of lhe Nabonal Ardmes 10 b Executive Branch Nominees Attorney General Meese - Hearings on the nomination of Edwin Meese as Attorney General began in March 1984 Though several Democratic Senators on the Senate Judiciary Committee attacked Mr Meese's record on civil rights and civil liberties attention soon focused on ethical questions surrounding his personal financial dealings An independent counsel was appoint ed pursuant to the Ethics in Government Act to investigate these charges and the Senate confirmation hearings were postponed The counsel Jacob A Stein issued a report in September 1984 clearing Mr Meese of any wrongdoing The Office of Government Ethics also cleared him of any ethical wrongdoings His nomination was resubmitted to the Senate in January 1985 and he was confirmed on February 23 Even after the report of the independent counsel was issued Mr Meese was attacked by some Democratic Senators most notably Senators Metzenbaum and Biden Ultimately even the Washington Post supported Mr Meese's appointment noting that he had done no wrong and that the President has a right to appoint executive officers who share his philosophy William Bradford Reynolds Assistant Attorney General for the Civil Rights Division began confirmation hearings for the post of Associate Attorney General in June 1985 As lead figure in the Reagan Administration's opposition to quotas and forced busing Mr Reynolds had become a controversial figure by the time of his nomination Indeed some of his opponents including civil rights leaders openly called for rejection of his nomination on philosophical grounds Some Senators then claimed non-ideological grounds for opposition The primary public reason for the rejection of Mr Reynolds was a very strained allegation of misleading the Senate Judiciary Committee After the Judiciary Committee voted against sending the Reynolds nomination to the floor several of his opponents rejoiced that he had been rejected on philosophical grounds Yet it is doubt ful the nomination would have been rejected had Mr Reynolds' opponents not gone to such to manufacture non ideological instances of alleged wrongdoing Ernest W Lefever was nominated to be Assistant Secre- tary of State for Human Rights He withdrew his name from consideration in June 1981 hours after the Senate Foreign Relations Committee voted to recommend that the Senate reject the nomination Most of the opposition to Lefever was philosophical based on his criticism of President Carter's human rights approach to foreign affairs But Senate Democrats also focused on an alleged connection between a $825 000 grant from the Nestle Corporation to Lefever's Ethics and Public Policy Center and the Center's subsequent support of Nestle during the infant formula controversy Edward A Curran The Senate Labor and Human Resources Committee rejected Edward A Curran's nomination as chairman of Reproduced from he Unclassi ed Dedassi ed Holdings of the Nabonal Archives 11 - the National Endowment for the Humanities in November 1985 Curran was ostensibly rejected due to lack of academic creden- tials but hostility to the candidate dated'back to his tenure in the Department of Education where he was an outspoken conserva- tive opponent of certain federal education programs Donald J Devine withdrew his nomination for a second four year term as director of the Office of Personnel Management when it became apparent that he could not be confirmed Devine was unpopular with Senate liberals because of the controversial nature of his proposed reforms affecting federal employees The Senate focused however on an accusation by acting 0PM Director Loretta Cornelius that Devine had improperly sought to retain his former authority while serving as Cornelius' deputy and had asked Cornelius to claim falsely that she knew and approved of this arrangement Other problem nominations have included those of Leslie Lenkowsky rejected as deputy director of USIA due to alleged blacklisting of people from the agency's overseas speaking program Kenneth Adelman appointed director of ACDA despite allegations that he opposed arms control Lawrence Silberman appointed to D C Circuit after resigning from private club and being cleared of involvement in improper banking activities 9 Recess Appointments In 1981 and 1982 the President made 11 recess appoint- ments to the board of the Legal Services Corporation Six of these appointments were to offices that had become vacant while the Senate was in session Under the Constitution the President has the power to fill up Vacancies that may happen during the Recess of the Senate In appointing six board members to offices that had become vacant while the Senate was in session President Reagan was relying on longstanding executive branch interpretations of the recess appointments clause The executive branch has historically maintained that the President may make appointments to fill any vacancies that exist during a Senate recess the alternative View long held by the Senate would only allow the President to fill vacancies that occur during a Senate recess Recent court opinions support the executive branch position See United States v Woodley 751 F 2d 1008 9th Cir 1985 en banc United States v Alloco 305 F 2d 704 2d Cir 1962 Though the President was technically appointing the recess board members to vacancies the old board members were still in office under the holdover provisions of the Legal Services Corporation Act They unsuccessfully sought an injunc- tion against the seating of the new members they did not chal- lenge the President's constitutional power to make the recess appointments but merely contended that the appointments violated the Act McCalpin v Dana Civ No 82-542 D D C Oct 5 1982 Reproduced from lhe Unclassi ed I Dedassilied Holdings of the National Ard'eives 12 In the fall of 1985 a dispute developed over the Reagan Administration's use of recess appointments For a period of approximately two months Senator Robert held up all Administration appointments due to the President's alleged breach of an agreement with Senator not to make any recess appoint- ments According to the Administration the agreement had only involved a pledge not to make controversial recess appointments The Administration ultimately decided not to challenge Senator Byrd's interpretation of the agreement 10 Status of Independent Agencies In January 1985 the Federal Trade Commission issued a complaint against various title insurance companies alleging that they had fixed prices and restrained competition in violation of 5 of the FTC Act The companies responded later in the year with a federal court action challenging the FTC's authority to prosecute a 5 complaint against them Ticor Title Insurance Co v FTC Civil Action No 85 3089 D D C They argued that Article II of the Constitution vests the power to execute the laws exclusively in the President and in members of the execu- tive branch who are under his supervisory control and subject to his removal Because the President may not freely remove FTC commissioners from office plaintiffs argued the FTC Act's grant of law enforcement power to them is inconsistent with Article II's exclusive grant of such power to the executive branch The Department moved to transfer the action to the court of appeals on the ground that it has exclusive jurisdiction to review FTC enforcement proceedings under 5 and it alternatively moved to dismiss the action on the ground that plaintiffs' constitutional challenge would not be ripe for review until the FTC issues a cease and-desist order The district court declined to transfer the case but granted the motion to dismiss for lack of ripeness Plaintiffs have appealed As currently constituted the so called independent agencies owe no duty to the President or his policies As a result there is potential for conflict between the Executive and the independent agencies In Humphrey's Executor v United States 295 U S 602 1935 the Supreme Court held that Congress can establish independent quasi-legislative or quasi-judicial agencies and can forbid removal of their officers by the Presi- dent except for cause Since Ticor represents a direct challenge to the continuing validity of Humphrey's Executor it could affect the constitutionality of all independent agencies The Gramm- Rudman litigation Synar v United States also touches upon related but distinct issues There the district court agreed with the Department that the law-execution role of the Comptroller General in the automatic deficit reduction process violates principles of separation of powers because the Comptrol- ler General is a legislative officer subject to removal by reduced from the Unclassi ed Dedassi ed Holdings of the Nalional Archives -13 Congress and not the President The court raised questions about the constitutionality of independent agencies stating that it has always been difficult to reconcile Humphrey's Executor's 'headless fourth branch' with a constitutional text and tradition establishing three branches of government Slip op at 41 11 Regulatory Review A major perennial conflict between the legislative and executive branches is over control of agency regulatory activi- ties principally rulemaking The problem initially stems from the congressional decision to delegate rulemaking authority to agenc1es this decision reflects Congress' inability to make the specific but generally applicable policy determinations that federal regulatory laws require Congress thus assigns that duty directly to federal agencies but retains the hope that it can control rulemaking through oversight and without undue inter- ference from the President The resulting tension is inevitable as the President and Congress each seek to exercise control or at least influence a Presidential Oversight OMB Regulatory Review President Reagan has stressed the importance of poli tical accountability for agency rulemaking and the critical role that he -- the only political leader with a national constituency -- must play in providing that accountability On February 17 1981 the President issued Executive Order 12291 establishing a regulatory review process under which executive branch agencies but not independent agencies submit to OMB for pre- publication review all proposed and final rules and for major rules include in that filing a cost benefit regulatory impact analysis Then to ensure earlier and more comprehensive presidential oversight on January 4 1985 the President issued Executive Order 12498 establishing a regulatory planning pro- cess That order requires agencies to submit annually to OMB a regulatory overview statement and descriptions of contemplated significant regulatory actions at both the rulemaking and prerulemaking stages of consideration On the basis of the submissions the Administration annually publishes the Regulato- ry Program of the United States Implementation of both executive orders has been controversial drawing considerable criticism from Congress especially chairmen of House oversight committees The basic criticism of E O 12291 has been that OMB by delaying or with holding approval of agency regulatory proposals has interfered with agency head exercise of discretion granted by Congress Representative Dingell demanded last year that four major regu- latory agencies supply him with copies of their E O 12498 filings within three days of submission to the Admini stration's practical accommodation was to authorize agencies to release their drafts to Congress after the Administration's Reproduced 1mm Ihe Undassi ed Declassi ed Holdings 0 the lional Archives -14- annual Regulatory Program was published OMB's regulatory review role has been so controversial that Representative Brooks has threatened to zero out in the appropriations process OMB's Office of Information and Regulatory Affairs and Representative Dingell has been reported to have sought to require agencies to inform him of all OMB written and oral comments and actions and more recently to be considering proposing legislation to end OMB's review role OMB has felt particularly threatened during reauthor- ization hearings for the Paperwork Reduction Act which contains OIRA's authorization Indeed in a 1984 hearing OMB gave Administration support for the Levin Amendment which seeks to open up the regulatory review process by requiring that all written communications between OMB and the agencies be made public This testimony was given over very strong Justice Department opposition based on the threat to the confidentiality of the executive branch deliberative process OMB Director Miller repeated OMB's support in testimony on January 28 1986 although this time he noted that others in the Administration question the proposal's constitutionality and appropriateness The Levin Amendment is now part of a broader bill recently introduced by Senators Levin Durenberger and Rudman S 2023 that bill would also require that publically available records be kept of oral communications between OMB and the agencies and would impose a strict time limit on OMB review The major court challenge to the regulatory review process Public Citizen Health Research Group v Rowland Civil Action No 84-1252 is currently on appeal in the D C Circuit In that case five House chairmen filed an amicus brief specifi- cally charging that OMB had unlawfully displaced the Secretary of Labor's decisionmaking power and more generally asserting that the President lacks constitutional and statutory authority to supervise in the way provided in E O 12291 the discretion granted by Congress to agency heads In addition the Department is considering appealing the January 28 1986 district court decision in Environmental Defense Fund v EPA Civil Action No 85-1747 holding that OMB has no authority to delay promul gation of hazardous waste storage tank regulations by withholding approval past statutory or judicial deadlines order at 2 The court opined that such OMB action or inaction would encroach upon the independence and expertise of and could be viewed as a continuation of unsuccessful executive lobbying on Capitol Hill on the underlying statute Slip op at 9 The decision jeopardizes OMB's coordinating role and would allow agencies to limit or avoid OMB review by submitting proposed regulations shortly before a statutory deadline Another potential issue is whether to require the independent agencies to participate in the regulatory review process The Administration 5 view so far has been that while the President has the constitutional authority to do that -- under the unitary executive view of his control over executive Reproduced ram 18 Unclassi ed I Dedass ed Holdings 0 the National 15 functions it would be politically too controverSial at this time because of the strenuous congressional criticism and counter-action it would cause b Congressional Oversight Post-Chadha Congressional Review of Rulemaking Until 1983 Congress primarily sought to satisfy its desire to retain control over regulatory power it had delegated to agencies by enacting legislative veto provisions Under these provisions agency regulations could not become effective until they had rested before Congress for a period of time during which one or both houses or sometimes even a committee would have the opportunity to veto them In 1983 however the Supreme Court ruled the legislative veto unconstitutional holding that such legislative actions require bicameral congres- sional action and presentment to the President INS v Chadha 462 U S 919 1983 In the wake of ChadhaIr Congress has been considering whether to enact a government wide regulatory veto which would attempt to do what the legislative veto did but in a constitu- tional manner The most prominent proposal is that of Senator Grassley S 1145 which the Department opposed in July 9 1985 testimony Acknowledging that the joint resolution of disap- proval mechanism proposed by S 1145 is constitutional we nonetheless opposed 1145 on policy grounds arguing that the Framers did not intend Congress to revisit legislative decisions by exercising a veto authority over executive actions implement- ing those decisions Rather the mechanism contemplated by the Framers was the legislative process itself legislative deci- sions are to be revised modified or repealed by new legislation We also argued that congressional review under S 1145 just like the legislative veto would encourage Congress to pass vague and overly-broad delegations of authority -- since Congress would have a second look when agency regulations are promulgated S 1145 would thus exacerbate the basic difficulty confronting rulemaking agencies the governing statutory criteria often provide only limited guidance for their exercise of discretion The Department especially opposed S 1145's enforcement provision which would amend congressional parliamentary rules to provide that as soon as Congress passes a joint resolution disapproving a rule and before presentment to the President an appropriations bill for the agency will be subject to a point of order if it does not forbid the agency to spend money to enforce the rule The effect of the provision would be to encourage passage of appropriations riders prohibiting enforcement of agency rules that have been disapproved by Congress but not necessarily by the President We argued that the provision is an attempt to bypass the President which was the principal defect in the legislative veto and that it would coerce the President by requiring him to veto an appropriations bill rather than just a bill limited to the agency rule in question The bill's Reproduced from the Undessu ed I Dedass ed of Ihe National Archives -l6- sponsors were quite candid in revealing their intention to restore the legislative veto as a weapon of the legislative branch against the executive branch They view the enforcement prov151on as converting the bill's congressional review mechanism -- which otherwise could be viewed merely as report and wait into a two-house legislative veto S 1145 has passed Senator Grassley's subcommittee but has not yet cleared the full Judiciary Committee However a conference committee is considering legislation passed by both houses that would extend a similar congressional review system to the rulemaking of two independent agencies the Federal Trade Commission and the Consumer Product Safety Commission 12 Burford EPA Document Reguests In March 1982 the Investigations and Oversight Subcom- mittee the Levitas subcommittee of the House Committee on Public Works and Transportation began an investigation of EPA's administration of the Superfund for the cleanup of hazardous waste sites On September 15 1982 the subcommittee asked to see EPA's Region II files on Superfund On September 17 the Over- sight and Investigations Subcommittee the Dingell subcommittee of the House Committee on Energy and Commerce sought Superfund documents for certain sites outside Region II EPA endeavored to cooperate with both subcommittees but made it clear that certain sensitive documents in the enforcement files on open cases could not be provided As informal negotiations faltered both commit tees served subpoenas the Dingell subcommittee on October 21 and the Levitas subcommittee on November 16 On October 25 Assistant Attorney General Olson recommended to the President that he assert executive privilege on the grounds that the documents contained legal and tactical discussions concerning prospective law enforcement actions and thus were predecisional deliberative process material On November 30 Attorney General Smith sent letters to Representatives Dingell and Levitas explaining why EPA would not comply with the subpoenas for sensitive documents in the open law enforcement files but stating that executive privilege would not be asserted to protect evidence of criminal or unethical conduct The same day President Reagan advised Burford that he was claim- ing executive privilege on those sensitive documents and in- structed her to refuse to produce the documents but to testify on the matters as fully as she could consistent with the separation of powers Burford appeared before the Levitas subcommittee on December 2 but did not produce the documents During negoti- ations over the following week Levitas offered a compromise under which subcommittee staff would review the files and desig- nate documents to be copied but if Justice or EPA identified any documents as sensitive they would not be copied and could only be reviewed at EPA subject to the subcommittee's right to issue further subpoenas for them The Attorney General declined the offer and countered with a proposal unacceptable to Levitas Reproduced from the Unclassi ed Unclassi ed Holdings 0 the National Archives -17- that EPA would prescreen the documents but any decision to withhold documents would be subject to high-level Administration approval The negotiations thus failed and on December 10 the full Public Works Committee recommended that the House hold Burford in contempt it did so on December 16 referring the matter to the U S Attorney for the District of Columbia for prosecution under the contempt of Congress statute The Justice Department responded by immediately filing a civil action to enjoin further efforts to enforce the subpoena which it claimed was unconstitutional and the U S Attorney advised the Speaker on December 27 that he could not present the matter to the grand jury while the civil action was pending on August 5 1983 it was presented to the grand jury which voted not to indict The District Court dismissed the suit on February 3 1983 holding -that the constitutional issue could be resolved in any proceeding to enforce the subpoena In the meantime negotiations over the Levitas subpoena had continued and on February 18 a settlement was reached under which the subcommittee received edited copies of all relevant documents a briefing on their contents and the opportunity to review unedited documents in closed session The Dingell subcommittee investigation was continuing on a parallel track focusing on possible criminal and ethical misconduct by EPA officials The political and media controversy over wrongdoing at EPA had greatly intensified by this time Rita Lavelle the Superfund Administrator resigned on February 7 On February 18 the Administration agreed to furnish redacted copies of the sensitive documents Finally on March 9 Burford resigned and the Administration agreed to release the unredacted documents to the Dingell subcommittee subject to certain con fidentiality protections These documents were ultimately provided to the Levitas and other interested subcommittees The Burford matter will not easily die In December 1985 completing an investigation it had started in 1983 at the request of the six House committees that had been investigating EPA the House Judiciary Committee issued a report strongly criticizing the Justice Department's role in the matter and urging that the Attorney General appoint an independent counsel under the Ethics in Government Act The committee's general charges are that 1 the Department not EPA made the decision to withhold documents from Congress and persuaded the President to assert executive privilege 2 the documents withheld under the privilege claim were not properly reviewed and selected 3 the Department improperly directed the U S Attorney not to present the House contempt certification to a grand jury for prosecution 4 the Department inadequately advised and repre- sented the President EPA and Burford 5 and there were con- flicts of interest inherent in the Department's role On April 23 1986 an Independent Counsel was appointed to investigate the allegations concerning former Assistant Attorney General for Remoduoed mm the Unclassi ed IDeclassi ed Holdings 0 Ihe National Archwes 13 Legal Counsel Theodore Olson but not the allegations concerning the other individuals named by the committee 13 Watt Interior Document Request In the summer of 1981 the Oversight and Investigations Subcommittee the Dingell subcommittee of the House Committee on Energy and Commerce asked the Interior Department for documents relevant to Canada's status under the reciprocity provisions of the Mineral Lands Leasing Act The subcommittee was reviewing Secretary Watt's ongoing consideration of whether sanctions should be imposed on Canada which turned on whether Canada was giving American mineral lease investors the same opportunities that Canadian investors in such leases were receiving in this country In testimony before the subcommittee on August 6 Secretary Watt claimed confidentiality for some of the documents On September 24 the Interior Department produced about 200 documents but said that executive privilege might be invoked for responsive documents that were not being disclosed After some fruitless negotiations during which Interior offered other ways short of copying for the subcommittee to learn of the documents' contents the subcommittee subpoenaed the remaining documents on October 2 In response to the subpoena Interior produced 31 more documents on October 9 On October 13 however relying on an opinion of the same date from Attorney General Smith President Reagan advised Secretary Watt that he was claiming executive privilege on the remaining 31 documents State Department diplo- matic cables and cabinet council related papers Watt advised the subcommittee of this on October 14 The two bases for the executive privilege claim cited in the President's memorandum to Secretary Watt were that these documents deal with sensitive foreign policy negotiations now in process or constitute mate rials prepared for the Cabinet as part of the executive branch deliberative process through which recommendations are made to the President The Attorney General's opinion noted that 1 since a congressional oversight interest is more generalized than a specific legislative interest it is entitled to less weight in the balancing of the two branches' constitutional interests that is required by the courts and 2 the congres- sional oversight interest will support a demand for predeci- sional deliberative only in the most unusual circumstances page 4 He concluded that in this case the executive branch's deliberative process and foreign policy interests outweighed the subcommittee's oversight interest During the next few months the subcommittee unsuccess fully sought the Attorney General's testimony concerning his opinion And continuing negotiations failed to resolve the document dispute On February 2 1982 Secretary Watt announced a reciprocity decision favorable to Canada Since the deliberative process was now over on February 4 Interior turned over 19 of the 31 withheld documents Still not satisfied on February 25 Reproduced from the um rm I Dedassi ed Holdings at the National mums -19 the full Energy and Commerce Committee voted to recommend that the House cite Watt for contempt Before the House voted however a settlement was reached by which subcommittee members but no staff were given four hours to read and take notes on but not copy the remaining 12 documents 14 Public Access to Presidential Records Statutes providing for public access to presidential records raise separation of powers concerns because they inter- fere with the executive branch's control of its records and invade the executive privilege The Pre51dent1al Recordings and Materials Preservation Act of 1974 44 U S C 2111 called for the National Archives to preserve tape recordings and other presidential materials of the Nixon presidency and to provide for public access to them pursuant to procedures to be established in regulations issued by the Archives Prior to 1986 the Archives attempted to issue regulations on five different occasions the Senate rejected the first two by legislative veto the third was withdrawn for reconsideration in light of Nixon v Administrator of General Services 433 U S 425 1977 which upheld the constitutionality of the Act the fourth was withdrawn as part of a settlement with President Nixon and the fifth was successfully challenged in court by former Nixon Administration officials On February 26 1986 the Archives once again issued revised regula tions Of most significance from a separation of powers stand- point is the provision that the Archivist has final administra- tive discretion regarding public access OLC has opined that implicit in these regulations is the Archivist's duty to follow directions on disclosure given by the incumbent President including but not limited to an assertion of executive privilege OLC's opinion further concluded that an incumbent President should respect a claim of executive privilege asserted by a former President unless the incumbent concludes that respecting such a claim would impair his ability to discharge his constitu- tional responsibilities Subsequent legislation raising similar questions is the Presidential Records Act pf 1978 44 U S C 2201 It establishes as the general rule that the records of President Carter and all future Presidents will be public There are many exceptions most notably the limitation that during a restricted access period of no more than 12 years the Archivist has the discretion not subject to judicial review to decide whether to grant public access to presidential records Since the Archivist is subject to the incumbent President's supervision and control an incum- bent President's authority to control public access to the records of a former President seems substantially the same at least for the restricted access period as under the law specifically governing the Nixon records pmduoed mm the Undassi ed I Declassi ed Holdings 0 he NationalArchwes 2 0 15 Congressional 0versight -Interference with Prosecutions a General Dynamics In the early 1980's the Department conducted a grand jury investigation into false claims made by General Dynamics in connection with the construction and delivery dates of submarines purchased by the Navy beginning in the early 1970's The Depart- ment reopened its investigation in the summer of 1984 The Department identified Takis Veliotis President of Electric Boat the General Dynamics division that manufactures submarines as a potential defendant He fled the country and remains a fugi- tive During the fall of 1984 Senator Proxmire Vice- Chairman of the Joint Economics Committee instituted oversight proceedings to look into the Department's handling of several defense procurement investigations including the General Dynam ics investigation Because the Joint Economics Committee had no subpoena power Senator Proxmire enlisted Senator Grassley Chairman of the Senate Judiciary Committee Subcommittee on Administrative Practice and Procedure and Representative Dingell Chairman of the House Energy and Commerce Committee Subcommittee on Oversight and Investigations They sought informally and then by subpoena the Department's investigation files in these cases Even though the Department was in the midst of a grand jury investigation of General Dynamics the committees insisted that the Department turn over its original files claiming that they constituted closed case files The Department responded that all its files were open investigative files and that disclosure could jeopardize its case The committees also disrupted sensitive Department negotiations with Veliotis who had potentially incriminating tapes of meetings at General Dynamics During these negoti- ations committee staffers contacted Veliotis and discouraged his cooperation with the Department by suggesting that we were not serious about going forward with the investigation and by holding out the hope that Congress would extend him some sort of immuni- ty Congressional interference has caused serious damage to the General Dynamics investigation By the time the Department obtained the tapes from Veliotis it had lost all opportunity for surprise against General Dynamics Congress also limited some of the investigative options available to the Department Ultimate- ly the tactics of the committees may expose the Department to charges that its prosecution of General Dynamics was triggered by the congressional investigation The congressional investigation also may publicly disclose sensitive national security informa tion Finally responding to congressional requests had cost the Department between six and eight months in personnel time Reproduced lrom Ihe Unclassi ed I Declassi ed Holdings the National Archives -21- b Newport News During the 1970's and 1980's Newport News Drydock Shipbuilding Company allegedly submitted false claims to the Navy in connection with the construction of submarines Following an investigation the Department declined prosecution in 1983 Senator Grassley's and Senator Proxmire's committees conducted oversight hearings into the manner in which the Department conducted its investigation In response to congressional requests the Navy turned over sensitive prosecution memoranda and other documents that the Assistant U S Attorney had supplied the Navy These memoranda were immediately leaked to the press c GTE Investigation Beginning in 1983 the Department conducted an investi gation into allegations that a GTE consultant had stolen and sold to GTE classified information that might have been helpful to the company in the procurement process The investigation culminated in an indictment in September 1985 In October 1985 only one month before the case was scheduled for trial Senator Grassley began defense procurement oversight hearings Senator Grassley sought to call as a surprise witness a former Department case agent to discuss the manner in which our investigation was conducted and the content of our case The timing and nature of the oversight proceedings were potentially extremely damaging to the Department's case In the view of some Senator Grassley came close to jeopardizing the government's case by nearly blowing the Department's cover on the investigation and by divulging our investigative techniques Senator Grassley' 5 office is believed by some in the Administration to have also mishandled classified information in the course of the investi gation Moreover during the Attorney General' 5 confirmation hearing Senator Grassley asked when GTE was going to be indict- ed As a result GTE filed a motion to dismiss the case against it on grounds of congressional pressure to indict d Pratt Whitney The United States Attorney's Office for the Southern District of Florida conducted an investigation of Pratt Whitney a division of United Technologies for improperly charging the government for non- compensable expenses An FBI agent who had talked with congressional people about the investigation was subpoenaed by Representative Dingell to appear as a witness before his committee The Department had to instruct the FBI agent not to testify on Rule 6 a and other grounds The Dingell hearings have had a chilling effect on prosecutorial decision- making although prosecution will probably be declined the Assistant United States Attorney in charge of the investigation does not want to make a prosecution decision for fear that he will be called to testify before Dingell's committee Repmduced from the Unclassi ed I Deciassi ed Holdings of the National Archives 22 e E F Hutton As a result of a Department investigation of E F Hutton concerning its cash management practices Hutton entered pleas of guilty to mail and wire fraud charges The Department volunteered to conduct briefings on its prosecution decisions for the House and Senate Banking Committees the House and Senate Judiciary Committees the Bank Regulatory Commission and the SEC among others On June 4 1985 the House Judiciary Committee Subcommittee on Crime notified the Department that it was re- viewing the Hutton matter as part of its reView of corporate crime Rather than proceeding informally however the sub- committee began oversight hearings 1n what some have described as a highly polarized adversarial manner Moreover the committee released its conclusions well before the completion of the hearings The subcommittee chaired by Representative William Hughes requested the Department to provide numerous documents concerning the Hutton investigation The Department refused to produce certain categories of documents on the ground that Rule 6 e precluded their disclosure The subcommittee then sub- poenaed the documents and the Department filed a motion in the grand jury court to determine whether disclosure of the sub poenaed documents would disclose matters occurring before the grand jury The grand jury court however declined to intervene in the dispute There has been disagreement within the Department over the propriety of the Department's approach to resolving the 6 e dispute with Congress It has been suggested that the Depart- ment's motion construed the scope of Rule 6 e too broadly that it ceded too much authority to the courts to decide the propriety of disclosing materials arguably subject to Rule that it wrongly identified the case or controversy providing Article jurisdiction as one between the Department and the subcommittee rather than as between the United States and E F Hutton in the original criminal proceeding that its statement that the dispute was solely between the subcommittee and the Department inade- quately addressed the interests of E F Hutton and that its contention that the Department's duty is to represent the grand jury ignored the conflict between the Department's duty to refrain from disclosing Rule 6 e material and its duty to respond to congressional requests for information in its pos session The manner in which the Hughes subcommittee conducted its oversight hearings potentially could have had a chilling effect on the decisions of individual Department prosecutors to take certain kinds of cases Moreover although there may have been criminal abuses in the way Hutton produced documents in response to grand jury subpoenas the way in which the Hughes Subcommittee has investigated the case and interviewed witnesses may make it impossible for the Department to prosecute the Reproduced from the Unclassi ed I Declassr ed Holdings 0 the a onal Archwes 23 responsible individuals for those abuses In any event the Department has decided not to pursue a criminal investigation until after Congress concludes its investigation f G D Searle The Food and Drug Administration FDA asked the Department to investigate certain food additive petitions including one for aspartame NutraSweet filed by G D Searle In 1978 the United States Attorney for the Northern District of Illinois declined prosecution Senator Metzenbaum has charged that the U S Attorney had improper motives in declining prose- cution and that undue delay in considering whether to prosecute also led to the declination It appears likely that the Searle case will be included in upcoming Senate Judiciary Committee hearings on pharmaceutical industry practices g Syntex The Department investigated allegations that Syntex violated the Food Drug and Cosmetic Act by failing to have adequate levels of salt in its infant formula In 1984 the Department declined prosecution Senator Metzenbaum wrote to Civil Division Assistant Attorney General Richard Willard asking him to reconsider prosecution because of newly discovered evi dence Willard has referred the case to the U S Attorney for the Northern District of Illinois Syntex may be one of the cases considered in the upcoming pharmaceutical industry hear- ings h Eli Lilly Smith-Kline The FDA conducted an independent investigation of Eli Lilly for failing to report that products it was marketing had resulted in deaths and other injuries The FDA asked the Depart- ment to bring a grand jury investigation because the FDA had insufficient subpoena power The FDA prepared an internal report summarizing its investigation and detailing litigation strategy During the Department's grand jury investigation the House Committee on Energy and Commerce Subcommittee on Health and the Environment chaired by Representative Waxman requested or subpoenaed the internal FDA report Unbeknownst to the Depart ment the FDA complied Sometime thereafter a lobbyist from Eli Lilly talked to a committee staffer who turned the report over to the lobbyist Although the subcommittee asked Eli Lilly to return all copies of the report clearly significant damage to the Department's case against Eli Lilly had already been done The subcommittee explicitly asked the Department to prosecute Eli Lilly Eli Lilly ultimately pleaded guilty to misdemeanor charges and one individual pleaded nolo contendere But the congressional request for prosecution did not affect the way the case was handled Reproduced from the Undassi ed I Declassi ed Holdings of the Nabonal Archives 24 In a similar case Smith-Kline pleaded guilty to misdemeanor charges for failing to report to the FDA that prod- ucts it was marketing had resulted in deaths and other injuries Three individuals pleaded nolo contendere Both the Eli Lilly and Smith Kline matters will be considered during the pharma- ceutical hearings The individual co-defendant in the Eli Lilly case has informed the Department that he plans to petition the grand jury court to prevent intended disclosures by the Depart- ment as violative of Rule i Ferdinand Marcos Recently Representative Solarz's Subcommittee on Asian and Pacific Affairs of the House Committee on Foreign Affairs subpoenaed documents from the U S Customs Service relating to the holdings of former Philippine President Ferdinand Marcos Representative Solarz decided to release the information to the press but because the Department had opened an investigation of Marcos' financial dealings in the United States Solarz invited the Department to review the documents before he disclosed them to determine whether disclosure would harm the investigation The Department refused to participate in any such review arguing that because its investigation was so new it would be impossible to determine which documents were relevant or could jeopardize the investigation if disclosed Representative Solarz released the documents the next day 16 Legislation to Amend Rule 6 a The Supreme Court's decisions in United States v Sells Engineering Inc 463 U S 418 1983 and United States v Baggot 463 U S 476 1983 substantially limited the extent to which federal prosecutors may disclose matters occurring before the grand jury to civil attorneys within the Department of Justice and to attorneys in other government agencies As part of a comprehensive anti fraud package the Administration pro- posed amendments to Rule 6 a of the Federal Rules of Criminal Procedure to overcome these impediments S 1676 The Adminis- tration's proposal would J1 permit disclosure of grand jury materials without a court order to Department of Justice attor- neys for civil purposes a practice that was followed before Sells 2 expand the types of proceedings for which other executive branch departments and agencies could gain court- authorized disclosure to include not only judicial proceedings but also other matters within their jurisdiction such as adjudi- cative and administrative proceedings and 3 reduce the par- ticularized need standard for court-authorized disclosure to government agencies to a lesser standard of substantial need in certain circumstances if the Justice Department requests dis- closure Senator Grassley introduced 8 1562 which tracks the Department's bill except in two important respects 8 1562 recently reported to the full Judiciary Committee would permit a Repmduoed from the Undassi ed I Dedassi ed Holdings of the Nauonal Archives congressional committee court-ordered access to grand jury materials if the committee has substantial need to see them and it would delete the requirement that would permit administrative agencies to obtain court-ordered access to grand jury materials only at the request of an attorney for the government Both the Justice Department and the criminal defense bar have objected to Senator Grassley's congressional access proposal The Department believes that amendments to Rule 6 a are necessary to assist the executive branch in its duty to enforce the law through civil or administrative remedies by permitting access to information developed in a grand jury investigation Congressional access to 6 a materials on the other hand would not aid the executive in fair and efficient enforcement of the laws but in fact would interfere with the executive's duty to enforce the law Moreover the Department has an obligation flowing from the due process clause to ensure that fairness in its prosecutorial decisionmaking is not com- promised by exceSSive congre551onal pressures It would be in- consistent with both separation of powers princ1ples and the due process clause for Congress to become a partner in an investi- gation through its access to 6 a materials Finally congres- sional access to grand jury materials threatens the traditional secrecy of grand jury proceedings Secrecy allows the grand jury to conduct its investigations and deliberations without unneces- sary interference it avoids unwarranted publicity that might chill witnesses prosecutors and grand jurors in the exercise of their duties and it protects the rights of subjects of the grand jury's investigation who are ultimately exonerated 17 Congressional Oversight Cornelius Discharge Former Office of Personnel Management Acting Director Loretta Cornelius was fired on February 5 1986 Subsequent congressional oversight hearings have sought to inquire into the circumstances surrounding that presidential action The Justice Department has advised that Congress has no authority to inquire into a presidential removal of an executive branch official appointed by the President Relying on that advice current 0PM Director Constance Horner declined on March 20 to answer congres sional questions by the Subcommittee on Employment and Housing of the House Committee on Government Operations on alleged White House pressure to oust Cornelius She said that discussing such matters would breach the President's absolute right to terminate presidential appointeeSJ 18 Congressional Impediments to Executive Branch Management Over the years Congress has placed all types of re strictions in appropriations and other bills that limit the flexibility of the PreSident and his agency heads to manage the government Perhaps the most egregious example during the Reagan Administration was the enactment of provisions in the Competition in Contracting Act of 1984 CICA granting the Comptroller Reproduced from the Undassi ed I Dedassi ed Holdings ol' the National Amhivm 2 6 General the authority to lift the stay automatically imposed under CICA when a bid protest is filed Other existing restric tions include congressional reporting requirements limitations on agency discretion on procurement matters and restrictions on management structure and the reprogramming of funds The Department responded to the CICA provisions by refusing to defend their constitutionality they are unconsti- tutional in our view because they authorize a legislative branch officer to bind executive agencies in the bid protest process In addition the Administration's management improvement legisla- tive package in 1985 responded to many of the other encroach- ments Reforms were proposed in the areas of productivity improvement reorganization authority fraud prevention payment integrity procurement reduction in regulatory and paperwork burdens and property management The thrust of the proposals was to remove as many limitations on management flexibility as possible in order to facilitate more efficient government manage- ment 19 War Powers Resolution On November 7 1973 Congress enacted the War Powers Resolution over President Nixon's veto Congress passed the Resolution to ensure that the nation would never again become involved in a military conflict such as the Vietnam War without explicit congressional approval The Resolution expresses Congress' understanding that the President's constitutional power as commander-in-chief to commit military forces for sustained periods of time is limited to instances where Congress has declared war or conferred specific authority on the President through legislation or where the United States or its armed forces have been attacked The Resolution further provides that absent a declaration of war the President must report to Con- gress within 48 hours of introducing U S forces into hostili ties or imminent hostilities of introducing forces equipped for combat into the territory airspace or waters of a foreign nation or of substantially enlarging the number of combat- equipped forces already located in a foreignxnation Within 60 days after the reporting provision is triggered the President must terminate the use of military forces unless Congress grants specific authorization for the operation The President may extend the 60-day period another 30 days if necessary to ensure the safety of troops in bringing about their prompt removal The Administration has acted consistently with the War Powers Reso- lution but as with predecessor Administrations has not conceded its constitutionality a Central America In March 1981 President Reagan sent military advisers to aid the Salvadoran military in its fight against leftist guerilla forces He did not formally report this action to Congress pursuant to the Resolution but informally assured Reproduced from me Unclassi ed I Declassi ed o the National Amiwes Congress that the size of the contingent would be limited The following year 29 members of Congress filed a federal court action seeking a declaratory judgment that the U S forces in El Salvador were in a hostile situation and therefore subject to the time limit of the Resolution and an injunction directing immedi- ate withdrawal of troops The court dismissed the suit before trial on justiciability grounds the court felt that the factual issues involved in the case were more properly resolved by the political branches and that in any event the case was not ripe because there had not yet been open and formal consideration of the question of continued involvement by both full houses In dictum the court expressed doubt that it could ever order a withdrawal of troops Crockett v Reagan 558 F Supp 893 901 D D C 1982 aff'd 720 F 2d 1355 D C Cir 1983 cert denied 104 S Ct 3533 1984 In March 1984 as Congress debated increased military aid to El Salvador it was disclosed that the number of U S military personnel in El Salvador had nearly doubled that U S spy planes based in Honduras were providing intelligence to Salvadoran troops during battles with the rebels and that U S troops had been fired upon at least three times Senators Kennedy and Sasser moved in the Senate to prohibit further use of troops in Central America without specific congreSSional ap proval This effort was defeated as were efforts to delay or reduce military aid Throughout much of this period the Reagan Administration also provided various forms of covert aid for rebels fighting the Sandinista regime in Nicaragua Although the Resolution was never formally invoked to limit involvement in Central America some believe that it may nevertheless have had a restricting effect upon the Administration's activities Limits on the size orders and even the combat pay of the detachment of advisers may have been affected by a desire to avoid triggering the Resolution b Lebanon In September 1982 following the Israeli incursion into Beirut and continuing sectarian violence theIPresident sent U S Marines into Lebanon as part of a multinational peacekeeping force MNF President Reagan told Congress that U S armed forces were not expected to become involved in hostilities but that they reserved the right of self-defense He said he was uncertain how long the troops would remain in Lebanon but that it would be only for a limited period Congress did not chal- lenge the deployment Indeed in June 1983 Congress enacted the Lebanon Emergency Assistance Act tacitly validating the presence of the troops but requiring congressional authorization for any substantial expansion in the ir number or role Attacks on the Marines stationed at the Beirut airport intensified Two Marines were killed on August 29 1983 during an exchange of fire with Lebanese rebels and two more were killed on September 6 Increasingly members of Congress viewed Reprod from the Unclassr ed 1' Declass 'ied Holdings of 1116 National Archives -23 Lebanon action as hostilities and introduced bills to require compliance with the Resolution Congress and the White House negotiated an agreement that authorized the Marines to remain in Lebanon an additional 18 months The agreement limited their mission to restoring full control by the Government of Lebanon over its own territory and it incorporated the original limita- tions mentioned above on the MNF Less than a month after that agreement was signed into law a suicide bomber drove a truck loaded with several tons of explosives into the Marine barracks killing more than 240 men Congressional and public support for the mission declined fur- ther Eventually the President ordered the Marines redeployed to U S Navy ships standing offshore In announcing the action the President said he had authorized U S naval gunfire and air support against any units firing into greater Beirut from parts of Lebanon controlled by Syria as well as against any units directly attacking American or other MNF personnel and facili- ties Some members of Congress considered this order and the heavy shelling that followed to be a violation of the terms of the 18-month authorization but Congress took no official action Within days the shelling was reduced and then halted Less than two months later the President reassigned the ships and Marines and formally notified Congress of the end of U S participation in the MNF c Grenada On October 25 1983 two days after the bombing of the Marine barracks in Beirut a U S -led force landed on the Carib- bean island nation of Grenada In announcing the action Presi- dent Reagan said he was acting to protect American lives princi- pally some 800 students at the St George's School of Medicine and to help in the restoration of democratic institutions in Grenada In a televised address two days later the President said that the troop action had come just in time to prevent Grenada from becoming a Soviet Cuban colony to export terror and undermine democracy I The President informed congressional leaders of his plans the night before the landing but some of those leaders interpreted it as more of a notification than a consultation After the landing he formally notified Congress of the action consistent with the Resolution but without invoking its 60-day time limit Within days the House passed a resolution d eter- min ing that the requirements of the time-limit provision of the War Powers Resolution became operative on October 25 1983 when United States Armed Forces were introduced into Grenada The Senate adopted identical language as an amendment to a bill raising the national debt ceiling The debt ceiling bill was initially defeated however and the compromise version ulti- mately enacted did not include the Grenada amendment The House bill never came to the Senate floor for a vote Congress took no further action on the issue perhaps because the landing was Reproduced from the Undass Deciassz ed a the National Archives 2 9 proving politically popular and perhaps because Administration officials while conceding no obligation under the Resolution said they expected troops to be withdrawn in less than 60 days It was nevertheless the first time either house of Congress had formally voted to invoke any part of the Resolution d Libya On March 24 1986 three U S warships from the Sixth Fleet 27 smaller escort vessels and approximately 250 aircraft crossed the so-called Line of Death into the Gulf of Sidra during activities that were described as routine training maneuvers Approximately two hours later Libya attacked with surface-to-air m1551les United States forces responded with a flurry of action an air attack on the mainland incapacitated Libyan radar stations and various Libyan patrol boats were heavily damaged by antiship cruise missiles On March 27 the Pentagon announced that it was suspending the maneuvers and would leave the gulf There is little dispute that as commander-in-chief of the armed forces the President is constitutionally authorized to commit the military in the event of direct attack upon U S citizens possessions or property While the Gulf of Sidra actions were generally supported by Congress and the public as a reaffirmation of American willingness to respond with military force when directly attacked the April 21 attack upon Tripoli and Benghazi prompted renewed criticism that at least in spirit the War Powers Resolution is being ignored That attack by fighter-bombers upon strategic military targets was conducted in response to a determination that Libya had ordered the bombing of a West Berlin disco frequented by American servicemen Approximately three hours before the April 21 attack House and Senate leaders were summoned to the White House for a briefing on the mission As with the action in Grenada certain congressional leaders indicated that this amounted to a mere notification of impending military activity not the consult- ation required by the War Powers Resolution However support for the mission remained'strong 20 Strategic Arms Limitation Treaties SALT Neither the 1972 U S -Soviet executive agreement limiting nuclear weapons SALT I nor the SALT II treaty signed in 1979 has legal force SALT I expired in 1977 and President Carter put aside his campaign for Senate ratification of SALT II after the Soviet invasion of Afghanistan in December 1979 President Reagan has consistently criticized SALT I as inequita- ble and SALT II as seriously flawed Nevertheless President Reagan has taken the position that the United States would not undercut the expired SALT I agreement or the unratified SALT II treaty as long as the Soviet Union exercised equal restraint Despite the belief by some that the Soviet Union has not fully Reproduced from the Unclassi ed 1 Declassi ed Holdings of the National Archives 3 0 complied with several SALT II provisions the Administration has to this point continued informally to observe SALT II The Senate from time to time has sought to pressure the President to continue his policy of informal adherence to SALT limits For example shortly before the President announced his decision in June 1985 to dismantle the Poseidon missile launching submarine in accordance with SALT II limits the Senate voted 90-5 for a sense of the Congress resolution that the United States should continue to refrain from undercutting the provisions of SALT though with the express allowance that the United States should take proportionate responses to Soviet violations The vote came on the fiscal 1986 defense author- ization bill S 1160 Another occasion for congressional pressure may soon arise the President must decide by May 20 whether to dismantle two more Poseidon submarines because the new Trident submarine begins sea trials on that day Similarly in 1984 the Senate adopted as an amendment to the 1985 defense authorization bill the text of a non binding House joint resolution H J Res 3 calling for the President to seek Senate approval of two nuclear test ban treaties signed in the mid 19705 but never ratified H J Res 3 was again sche duled for House action in October 1985 but it was pulled back by House Speaker O'Neill so as not to undermine President Reagan's summit talks with Soviet leader Gorbachev The House however again passed the resolution on February 26 1986 Senators Pell and Danforth introduced a similar non binding measure S J Res 252 last December calling on the President to seek Soviet agreement to a mutual moratorium on nuclear tests Because they were never approved by the Senate compli- ance with SALT II limits and unratified test ban treaties is a matter of executive policy not law Congressional insistence on presidential adherence to these nonbinding agreements especially as a condition for defense appropriations therefore can be viewed as an attempt to interfere with the President's exercise of his treaty-making and other foreign relations powers 21 American Cetacean Society I Baldrige v American Cetacean Society No 85 954 which was argued before the Shpreme Court on April 30 1986 concerns two statutes that collectively require the Secretary of Commerce to certify if the nationals of a foreign country are conducting whaling operations in a manner that diminishes the effectiveness of the International Convention for the Regulation of Whaling The Supreme Court will consider whether these statutes grant the Secretary the discretion to consider the circumstances surrounding Japan's noncompliance with the treaty's whaling quotas including Japan's commitment in an executive agreement with the United States to come into compliance with the treaty by 1988 by terminating its commercial activities by that time -- or whether he must instead automatically certify Japan 5 Reproduced he Unclassi ed I Dedassi ed ol the Nahonal Archwes - 31 noncompliance The case primarily involves statutory interpre tation of a grant of authority to the Executive in a sphere foreign relations in which the Executive has the preeminent role The Speaker and the bipartisan leadership of the House have filed an amicus brief arguing that allowing the Executive to disregard the mandates of the statutes would violate separation of powers APPENDIX Constitutional Provisions Relevant to Separation of Powers Subject Legislative Branch l Executive Branch l General All legislative Powers herein granted The executive Power shall be vested shall be vested in a Congress of the in a President of the United States United States which shall consist of of America art II l a Senate and House of Representatives art 1 1 Term of Office The House of Representatives shall be The President shall hold his Office composed of Members chosen every second during the Term of four Year by the People of the several art II l g art I 2 - The Senate of the United States shall be composed of two Senators from each State chosen by the Legislature thereof 2 for six art I 3 Dual Office No Senator or Representative shall The Vice President of the holding during the Time for which he was United States shall be President elected be appointed to any civil of the Senate but shall have no Office under the Authority of the Vote unless they be equally divided United States which shall have art I 3 l Provisions that assign powers to both the legislative and executive branches are placed in the column for the branch that in our view has the primary responsibility 3 Under the twenty second amendment No person shall be elected to the office of the President more than 3 Under section 1 of the seventeenth amendment the Senators from each State shall be elected by the people mum leuoneN an JO newsman I newsman an m mommy Subject Legislative Branch Executive Branch been created or the Emoluments whereof shall have been encreased during such time and no Person holding any Office under the United States shall be a Member of either House during his Continuance in Office art I 6 Convening The Congress shall assemble at least The President may on extra- Congress once in every Year and such Meeting ordinary Occasions convene both shall be on the first Monday in Houses or either of them and in December 5 unless they shall by Case of Disagreement between them Law appoint a different Day with Respect to the Time of Adjourn- art I 4 ment he may adjourn them to such Time as he shall think art II 3 Legislation All Bills for raising Revenue shall The President shall from time to originate in the House of Representa- time give to the Congress Information tives but the Senate may propose or of the State of the Union and re- concur with Amendments as on other commend to their Consideration such Bills Measures as he shall judge necessary and art II 3 Every Bill which shall have passed the House of Representatives and the Senate shall before it become a Law be presented to the President of the United States If he approve he shall sign it but if not he shall return it with his Objections to that House in which it shall have originated who shall enter the Objections at large on their Journal and proceed to reconsider it If after such Reconsideration two thirds of that House 2 Changed by section 2 of the twentieth amendment to the 3rd day of January sauumv leuoneN an 1 s umoI-s Damssepaa am um panopmdau Subject Execution of Laws Legislative Branch shall agree to pass the Bill it shall be sent together with the Objections to the other House by which it shall like- wise be reconsidered and if approved by two thirds of that House it shall become a Law But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively If any Bill shall not be returned by the President within ten Days Sundays excepted after it shall have been presented to him the Same shall be a Law in like Manner as if he had signed it unless the Congress by their Adjournment prevent its Return in which Case it shall not be a Law Every Order Resolution or Vote to which the Concurrence of the Senate and House of Representatives may be necessary except on a question of Adjournment shall be presented to the President of the United States and before the Same shall take Effect shall be approved by him or being disapproved by him shall be repassed by two thirds of the Senate and House of Representatives according to the Rules and Limitations prescribed in the Case of a Bill art I 7 Executive Branch The President may require the Opinion in writing of the principal Officer in each of the executive De partments upon any subject re- lating to the Duties of their respec- tive art II 2 The President shall take Care that the Laws be faithfully art II 3 sauumv IauonBN am 10 56111111014 newsman newsman an m momma Subject Appropriations Appointments Legislative Branch No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time art I 9 Executive Branch The President shall nominate and by andrwith the Advice and Consent of the Senate shall appoint Ambassadors other public Ministers and Consuls Judges of the Supreme Court and all other Officers of the United States whose Appointments are not herein otherwise provided for and which shall be established by Law but the Congress may by Law vest the Appointment of such inferior Officers as they think preper in the President alone in the Courts of Law or in the Heads of Departments art II 2 The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting which shall expire at the End of their next Session art II 2 The President shall Commission all the Officers of the United States art II 3 seem Ieuonen am 10 s tnmoH newsman pomssepun am mm momma -5- Subject Legislative Branch Executive Branch Foreign The Congress shall have the power The President shall have Power by Relations to regulate Commerce with foreign and with the Advice and Consent of War Powers art I 8 Congressushall have the To provide for the common To define and punish Piracies and Felonies committed on the high Seas and Offences against the Law of Nations To declare War grant Letters of Marque and Reprisal and make Rules concerning Captures on Land and Water To raise and support Armies but no ApprOpriation of Money to that Use shall be for a longer Term than two Years To provide and maintain a Navy To make Rules for the Government and Regulation of the land and naval Forces To provide for calling forth the Militia to execute the Laws of the Union suppress Insurrections and repel Invasions Senate to make Treaties provided two-thirds of the Senators present art II 2 The shall appoint Ambassadors other public Ministers and art II The President shall receive Ambassadors and other public art II 3 samumv man an no s inmoH WW I 999599101111 an um paonmmau The President shall be Commander in Chief of the Army and Navy of the United-States and the Militia of the several States when called into the actual Service of the United art II 2 Subject Impeachments Legislative Immunity Legislative Branch To provide for organizing arming and disciplining the Militia and for governing such Part of them as may be employed in the Service of the United States reserving to the States re- spectively the Appointment of the Officers and the Authority of training the Militia according to the discipline prescribed by art I 8 The House of shall have the sole Power of Impeachment art I 2 The Senate-shall have the sole Power to try all Impeachments When sitting for that Purpose they shall be on Oath or Affirmation When the President of the United States is tried the Chief Justice shall preside And no Person shall be convicted without the Concurrence of two thirds of the Members present art I 3 The President Vice President and all civil Officers of the United States shall be removed from Office on Impeach ment for and Conviction of Treason Bribery or other high Crimes and Mis- deanors art II 4 The Senators and shall in all Cases except Treason Felony and Breach of the Peace be privileged from Arrest during their Attendance at the Session of their respective Houses and Executive Branch The President shall have Power to Grant Reprieves and Pardons for Offences against the United States except in Cases of Impeachment art II 2 mum IBUOHEN am 0 s uxptos pamssepaa mussepun am tum pampmdau Subject Constitutional Amendments Oath of Office Legislative Branch in going to and returning from the same and for any Speech or Debate in either House they shall not he questioned in any other Place The Congress whenever two-thirds of both Houses shall deem it necessary shall pro- pose Amendments to this Constitution or on the application of the Legislatures of two-thirds of the several States shall call a Convention for proposing Amendments which in either Case shall be valid to all Intents and Purposes as part of this Constitution when ratified by the Legislatures of three-fourths of the several States or by Conventions in three fourths thereof as the one or the other Mode of Ratification may be proposed by the Congress Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article and that no State without its Consent shall be deprived of its equal Suffrage in the Senate art V The Senators and Representatives before mentioned and the Members of the several State Legislatures and all executive and judicial Officers both of the United States and of the several States shall be bound by Oath or Affirmation to support this art VI cl 3 Executive Branch Before he enter on the Execution of his Office the President shall take the following Oath or Affirma do solemnly swear or affirm that I will faithfully execute the Office of President of the United States and will to the best of my Ability preserve protect and defend the Constitution of the United States art II 1 sansumv leuoneN am 10 shaman mama mammn an um peonpmdau Subject Legislative Branch Executive Branch Presidential In Case of the Removal of the Disability President from Office or of his g Death Resignation or Inability to discharge the Powers and Duties of the said Office the same shall de- volve on the Vice President and the Congress may by Law provide for the Case of Removal Death Resignation or Inability both of the President and Vice President declaring what Officer shall then act as President and such Officer shall act accordingly until the Disability be removed or a President shall be elected g art II 1 Modified as to Presidential disability and Vice Presidential succession by the twenty-fifth amendment mum IeuoneN 9m 10 s uypton 995532ch I am um pamnmdau