Applicability of 18 U.S.C. § 208 to National Gambling Impact Study Commission

Applicability of 18 U.S.C. § 208 to National Gambling Impact
Study Commission
T he N ational G am bling Im pact Study C om m ission is not an “ independent” agency for purposes o f
a crim inal conflict o f interest statute, 18 U.S.C. § 208.

January 26, 1999

M em orandum O p in io n f o r t h e A c t in g G eneral C ou nsel

G eneral S e r v ic e s A d m in is t r a t io n

You have asked whether a criminal conflict of interest statute, 18 U.S.C. §208
(1994), applies to the National Gambling Impact Study Commission (“ Commis­
sion” ).1 The Commission was established by the National Gambling Impact Study
Commission Act (“ Act” ), Pub. L. No. 104—169, §3(a), 110 Stat. 1482 (1996)
(codified as amended at 18 U.S.C. § 1955 note (Supp. IV 1998)), in order to “ con­
duct a comprehensive legal and factual study of the social and economic impacts
of gambling in the United States.” Id. § 4(a)(1). The Commission consists o f nine
members, of whom six are appointed by Congress (three by the Speaker of the
House and three by the Majority Leader of the Senate), and three are appointed
by the President. Id. § 3(b)(l)(A)-(C). The appointing authorities are to consult
among themselves to ensure that the Commission’s membership reflects, “ to the
maximum extent possible, fair and equitable representation of various points of
view” with respect to the Commission’s inquiry. Id. § 3(b)(3). The congressional
leadership also has the predominant role in selecting the Chair of the Commission.
Id. § 3(b)(5)(A). The Commission’s responsibilities are investigatory and advisory:
not later than two years after its first meeting, it must submit to the President,
Congress, State governors and Native American tribal governments “ a com­
prehensive report of [its] findings and conclusions, together with any recommenda­
tions” it may decide to make. Id. §4(b). The Commission has powers to hold
hearings, issue subpoenas, secure information directly from Federal agencies,
employ personnel and contract with the Advisory Commission on Intergovern­
mental Relations and the National Research Council. Id. §§5, 6, 7. Sixty days
after submitting its final report, the Commission is to terminate. Id. § 10.
Section 208 was enacted in 1962 as part of a general revision of the conflict
of interest laws. Pub. L. No. 87-849, § l(a), 76 Stat. 1119, 1124 (1962). In gen­
eral, 18 U.S.C. § 208(a) provides that, subject to certain exceptions, “ whoever,
being an officer or employee of the executive branch of the United States Govern­
ment, or of any independent agency of the United States . . . participates person­
ally and substantially as a Government officer or employee, . . . [in a] particular
matter in which, to his knowledge, he . . . has a financial interest,” shall be
1 S ee L e tte r for D aw n Johnsen, A cting A ssistant A ttorney G eneral, O ffice o f L eg al C ounsel, fro m Em ily C . H ew itt,
G eneral C ounsel, G eneral S ervices A dm inistration (N ov. 7, 1997) ( “ G SA L etter” )

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 Opinions o f the Office o f Legal Counsel in Volume 23

subject to the criminal and civil penalties provided in §216 of title 18. We have
previously concluded that the Commission is not within the executive branch.2
Thus, the sole substantive question to be considered here is whether the Commis­
sion is an “ independent” agency for purposes of § 208.3
We conclude that it is not. Although the reach of §208’s reference to “ inde­
pendent” agencies is not clear, and the legislative history is unhelpful (see Part
I.A below), the Commission falls outside any likely construction of that section.
As we discuss in Part I.B below, the Commission does not resemble the agencies
whose “ independence” from Presidential control was upheld by the Supreme
Court in two major cases that preceded the enactment of §208 — Humphrey’s
Executor v. United Statesk, 295 U.S. 602 (1935), and Wiener v. United States,
357 U.S. 349 (1958). Nor, as we discuss in Part I.C below, do the Commissioners
enjoy any form of protection from removal under the Act — and tenure protection
is, for many purposes, a recognized test of “ independence.” Finally, as we discuss
in Part II below, there is no other affirmative evidence, whether in the text of
the Act or otherwise, that Congress intended the Commission to be regarded as
“ independent” for purposes of § 208.

I.

Section 208 applies to “ an officer or employee of the executive branch of the
United States Government, or of any independent agency of the United States.”
18 U.S.C. § 208(a). There are at least two possible explanations for Congress’s
decision to distinguish between the executive branch and “ independent” agencies
in this context.
First, Congress may have intended § 208 to reach all agencies of the Govern­
ment other than those within the legislative or judicial branch. “ [Independent”
agencies on this account would be those agencies that, under the Supreme Court’s
older jurisprudence, might have been considered to be “ hybrid” agencies, outside
the executive branch and performing “ quasi-legislative” or “ quasi-judicial” func­
tions.4 Under present Supreme Court doctrine, such “ independent” agencies are

2 S ee L e tte r for M s. K ay C o le Jam es, C hairperson, N ational G am blin g Im pact Study C om m ission, from R ichard
L. S h iffrin , D e p u ty A ssistant A ttorney G eneral, O ffice o f Legal C ou n sel (A ug. 13, 1997). In su p p o rt o f th at co n c lu ­
sio n , w e o b serv ed that th e m ajority of the C o m m issio n ers w ere congressio n ally appointed; that the congressional
le ad ersh ip co n tro lle d the ch o ice o f the C om m ission’s C hair; and th a t the C om m ission carried o u t only inform ation-
g ath erin g an d ad visory functions, w hich need n o t be perform ed b y the ex ecu tiv e branch. Id at 1 W e fu rther po in ted
o ut th a t “ [u ]n d er th e D ep artm en t’s precedents, w e regard such com m issio n s as o u tsid e the ex ecu tiv e branch. . . .
In d eed , even w h ere th e con g ressio n al leadership appoints less than a m ajority o f m em bers, a com m ission su ch as
[this] m ay b e o u tsid e th e e x e cu tiv e branch.” Id. (citing precedents). W e rem ain persuaded that the C om m ission
is o u tsid e th e e x e cu tiv e branch.
3 T h e C o m m issio n is un d o u b te d ly an “ ag e n cy ” w ithin the “ exp an siv e d efin itio n ” o f 18 U S.C . § 6 , w hich d efines
“ a g e n c y ” fo r p u rp o ses o f title 18 to include “ any . . c o m m issio n .” M em orandum O pinion f o r the C o m p tro ller
G en era l o f th e U n ite d S ta te s' C onflict o f Interest — 18 U .S C. § 2 0 7 — A pp lica b ility to the G en era l A cco u n tin g O ffice,
3 O p . O L .C 433, 4 3 4 (19 7 9 ) ( “ G A O O pinion” )
4 T h is h as o ften b een ch a ra cte rized as the v iew that there is “ a headless ‘fourth b ran ch ’ o f g o vernm ent co n sistin g
o f in d e p e n d e n t agencies having significant d u tie s in both th e legislative and executive b ran ch es b ut residing not
en tire ly w ith in e ith e r.” A m eron, In c v U S A r m y C orps o f E ngineers, 787 F 2 d 875, 886 (3d C ir. 1986). S e e also

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 Applicability o f 18 U.S.C. §208 to National Gambling Impact Study Commission

considered to be parts of the executive branch, although the President’s power-
to remove agency heads may be restricted in certain ways. See Morrison v. Olson,
487 U.S. 654, 689-91 (1988) (interpreting cases on tenure protection for officials
of independent agencies as hinging on whether protection impaired President’s
duty to execute the laws). Congress could have understood the term “ independent
agency” in 1962, however, to refer to agencies that we would now consider to
be part of the executive branch. On that understanding, § 208 would apply to the
executive branch, including agencies within the executive whose heads enjoy some
degree of protection from presidential removal, and that may have been viewed
in 1962 as outside the executive branch;5 but it would not apply to the legislative
or judicial branches.
Alternatively, in referring to “ independent” agencies, Congress may have been
recognizing the possibility that some agencies could be regarded as “ inde­
pendent” even while being firmly located within a particular branch. On this
reading, §208 would reach not only “ independent” agencies within the executive
branch but also any such agencies within the legislative or judicial branches.6
The pre-1962 case law had at least occasionally noted that in order to be “ inde­
pendent,” an agency might need to be protected from congressional, as well as
executive, control.7 Moreover, the cases had also suggested that an agency might
be, for at least some purposes, “ independent,” while yet belonging to a particular
branch.8 Consequently, in applying §208 to “ independent” agencies, Congress
id at 892 (B ecker, J , concurring in part); Federal T rade C o m m ‘n v R ubero id C o , 343 U S 470, 487 (1952) (Jack ­
son, J , dissenting).
5 Thus, w e have no doubt that agencies such as the Federal T ra d e C om m ission ( “ F T C ” ), w hich H u m p h rey 's
E xecu to r stated “ cannot in any proper sense be characterized as an aim o r an eye o f the ex e cu tiv e ,” 295 U S.
at 628, should now be regarded as part o f th e executive branch
6 W e note that the C ourt seem s usually to have understood “ independen t” agencies — for purp o ses o f separation
o f pow ers an a ly sis— n o t to encom pass agencies w ithin the legislative or jud icial branches T h u s, the C ourt has
said that “ independent” agencies are those w hose statutes “ typically specify eith er that . . . ag en cy m em bers are
rem ovable by the P resident for specified causes [such as the FTC] . . or else d o not specify a rem oval pro ced u re
[such as the Federal E lection C o m m ission].” B ow sher v. S yn a r, 478 U .S. 714, 725 n.4 (1986) By contrast, a statu te
“ that provides for d irect congressional involvem ent o v e r th e decision to rem o v e” the agency head creates an en tity
that is not generally an “ independent ag e n cy ” in the constitutional sense. S ee id. T h u s, at least in B ow sher, the
C ourt seem ed reluctant to view the C om ptroller G eneral as an “ independent ag e n cy ” for constitutional purposes
Such a view w ould not negate the possibility o f considering the C om ptroller G en eral to be “ in d ep en d en t” w ithin
the m eaning o f § 2 0 8 — a possibility that w e exam ine in Part I.C below . An agency m ight count as “ in d ep en d en t”
un d er a particular statutory schem e w ithout necessarily being “ independent” in the constitutional sen se
7 F or exam ple, W illiam s v. U nited States, 289 U S . 553 (1933), addressed the q u estion w hether a ju d g e o f the
C o u rt o f C laim s (a “ le g islativ e” o r “ A rticle I” court) enjoyed the tenure protection afforded to constitutional courts
by A rticle 111, Section 1 o f the C onstitution A lthough denying that C ourt o f C laim s ju d g e s enjoyed such constitutional
tenure, the S uprem e C o u rt observed that “ [t]he preservation o f [the C ou rt o f C la im s’] independence is a m atter
o f public concern T he sole function o f th e court being to decide betw een the g overnm ent and private su ito rs, a
condition, on the part o f the ju d g e s, o f en tire dependence upon the le gislative p lea su re fo r the ten u re o f th eir o ffices
. . . to say th e least, is not d esira b le.” Id. at 562 (em phasis added).
8 S ee Lathrop v. D onohue, 367 U S 820, 853 (1961) (H arlan, J , concurring in ju d g m en t) (B ureau o f the B udget
is “ in dependent” although w ithin the executive branch). S ee also D obson v C om m issioner, 3 2 0 U S 489, 497
(1943) (B oard o f T ax A ppeals w as statutorily designated as “ an independent ag en cy in the ex ecu tiv e branch o f
the G o v ernm ent” ); R a ilro a d R etirem ent Bd. v A lton R. C o , 295 U.S 330, 344 (1935) (R ailroad R etirem ent B oard
w as “ denom inated an independent agency in the executive branch o f the G o v ern m en t” ), G oldsm ith v. U nited S ta tes
C o n tinued

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could have had in view those agencies, whether belonging to the executive, legis­
lative or judicial branch, that enjoyed at least some freedom from the control
of higher authorities within that branch by virtue of protections against the
removal of the agencies’ heads. As discussed below, this account of Congress’s
intent has found support in this Office’s prior opinions.
We do not believe it is necessary in this memorandum to decide between these
alternative readings, because the Commission does not count as “ independent”
under either of the alternatives we describe. Furthermore, as we discuss below,
there is no evidence that Congress intended it to be considered “ independent.”

A.

We begin by reviewing the legislative history of § 208. We have found little
relevant history on the precise point at issue, and what little history there is sheds
almost no light on it.
“ Section 208 was modeled on the former section 434 of title 18, which
‘disqualified] an employee of the Government who has an interest in the profits
or contracts of a business entity from the transaction of business with such
entity.’ ” Applicability o f 18 U.S.C. §208 to the Federal Communications
Commission’s Representative on the Board o f Directors o f the Telecommuni­
cations Development Fund, 21 Op. O.L.C. 96, 98 (1997) (citation omitted). Sec­
tion 434 had made no express reference to independent agencies. That reference
originated in the general reform o f the major federal conflict of interest statutes
made by the Bribery, Graft and Conflicts of Interest Act of 1962, Pub. L. No.
87-849, 76 Stat. 1119. The legislation represented Congress’s response to the
perception of several serious inadequacies in those statutes (including §434),
among them the fact that they were ‘‘drafted in unnecessarily broad and imprecise
ways,” thus creating “ uncertainties as to proper conduct and, to a degree, incon­
sistent practices among the departments and agencies of the Government.” Con­
flict o f Interest Statutes: Intermittent Consultants or Advisers, 42 Op. Att’y Gen.
I l l , 112 (1962) (Kennedy, A.G.).
While the reference in §208 to “ independent” agencies as well as to the
“ executive branch” may have been designed to make the statutory coverage more
precise, we have found no explanation of what Congress specifically intended.
The House Report on the 1962 law describes § 207(a) (and §§208 and 209) as
applying to officers and employees of the ‘executive branch’ or an ‘independent
agency,’ without further elaboration. See, e.g., H.R. Rep. No. 748, 87th Cong.,
1st Sess. 11, 12, 13, 23, 24 (1961). The Senate Report describes §§207, 208
and 209 as applying to present and former government employees only in very
general terms. See S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in

Bd. o f T ax A p p e a ls, 2 7 0 U .S 117, 121 (1 9 2 6 ) (Board o f T ax A ppeals perform ed “ q u asi ju d ic ia l” functions and
w as w ithin e x e cu tiv e branch).

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1962 U.S.C.C.A.N. 3852. Applicability o f Post-Employment Restrictions on
Dealing with Government to Former Employees o f the Government Printing
Office, 9 Op. O.L.C. 55, 56 n.3 (1985) (“ GPO Opinion” ). A legal commentator
of the time (and participant in the framing of the legislation) observed that §§ 207-
209 were to apply to officers and employees of independent agencies as well
as of the executive branch, but offered no explanation for this innovation. See
Roswell B. Perkins, The New Federal Conflict-Of-Interest Law, 76 Harv. L. Rev.
1113, 1123 (1963).9

B.

Given that the legislative history of § 208 is unilluminating, we have considered
an interpretative approach that draws on the Supreme Court’s pre-1962 jurispru­
dence. This approach is based on the rule of construction that “ [w]hen Congress
codifies a judicially defined concept, it is presumed . . . that Congress intended
to adopt the interpretation placed on that concept by the courts.” Davis v.
Michigan D ep’t o f Treasury, 489 U.S. 803, 813 (1989).
At the time of §208’s enactment in 1962, two major Supreme Court cases on
“ independent” agencies, Humphrey’s Executor and Wiener, had addressed the
constitutionality of statutory limitations on the power of the President to remove
agency heads or commissioners. Those cases could serve to explain how §208’s
reference to “ independent agencies” should be construed.
In Humphrey's Executor, the Court upheld a statute restricting the President’s
power to remove a Commissioner of the FTC on grounds of “ inefficiency, neglect
of duty, or malfeasance in office.” 295 U.S. at 619. The Court held that the
constitutionality of such removal restrictions turned on “ the character of the
office.” Id. at 631. The Court viewed the FTC as “ an administrative body created
by Congress to carry into effect legislative policies embodied in the statute in
accordance with the legislative standard therein prescribed, and to perform other
specified duties as a legislative or as a judicial aid.” Id. at 628. Such an agency
was not “ an arm or an eye of the executive” ; rather, its Commissioners were
expected to discharge their functions “ without executive leave and . . . free from
executive control.” Id. The powers of the FTC were not “ purely” executive,

9 W e note also that, in 1989, C ongress enacted 18 U S C § 202(e)(1) (1994), w hich provided a defin itio n o f
“ executive b ran ch ” ap p licab le to § 2 0 8 Ethics R eform A ct o f 1989, Pub. L N o 101-194, § 4 0 1 , 103 S tat. 1716,
1748. T he definition reaches any “ entity o r adm inistrative unit in th e executive b ran ch ,” but d o es not sp ecifically
m ention “ independent ag e n cy ,” w hich is not otherw ise defined. A rguably, som e en tities p reviously covered b y § 208
as “ independent a g e n c [ie s]” w ere, after the am endm ent, covered (in addition o r instead) by the reference to the
“ executive branch ” W e do not believe that the am endm ent requires giving the term “ independent ag e n c y ” in
§ 2 0 8 a broader m eaning than in our analysis, on the ground that otherw ise all “ independent ag en c[ies]” w ould
com e w ithin the refere n ce to the “ executive b ran ch ” and the term “ independent agency” w ould be red u n d an t
First, there is no evidence indicating that, by defining “ executive b ra n c h ,” C o n g ress intended to enlarge th e ex ten t
to w hich § 2 0 8 reaches entities outside the executive branch. Second, if the referen ce is redundant, that m ay m erely
reflect C o n g ress’s appreciation o f the changes in the S uprem e C o u rt’s ju risp ru d en ce m arked b y its 1987 d ecision
in M orrison T hird, as w e discuss in Part I.C below , som e entities o utsid e the ex ecu tiv e branch could be covered
as “ independent agencfies] ”

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but were “ quasi-legislative or quasi-judicial.” Id. Insofar as the FTC conducted
investigations and reported its findings to Congress, it was acting in a quasi-legis-
lative capacity; insofar as the statute required it to function as a master in chan­
cery, it was acting quasi-judicially. Id. 10
Wiener followed H umphrey’s Executor’s “ sharp line of cleavage between offi­
cials who were part of the executive establishment” and “ those who are members
of a body ‘to exercise its judgment without the leave or hindrance of any other
official or any department of the government,’ 295 U.S., at 625-626, as to whom
a power of removal exists only if Congress may fairly be said to have conferred
it.” 357 U.S. at 353. The Court applied that distinction to the President’s removal
of a member of the W ar Claims Commission.11 Although the statute creating that
body said nothing about removal, the Court inferred that “ Congress provided for
a tenure defined by the relatively short period of time during which the War
Claims Commission was to operate.” Id. at 352. Looking to “ the nature of the
function that Congress vested in the War Claims Commission” to decide whether
such an implied removal restriction was valid, id. at 353, the Court found that
that agency had been created as “ an adjudicating body with all the paraphernalia
by which legal claims are put to the test of proof, with finality of determination
‘not subject to review by any other official of the United States or by any court
by mandamus or otherwise.’ ” Id. at 354-55 (citation omitted). Because the intent
of Congress was to vest the W ar Claims Commissioners “ with adjudicatory
powers that were to be exercised free from executive control,” Morrison, 487
U.S. at 688, the implied statutory removal restrictions were constitutional.
The Supreme Court’s recent case law casts doubt on the viability of the doctrinal
categories used in Humphrey's Executor and Wiener. In particular, the Court now
recognizes the “ difficulty of defining such categories of ‘executive’ or ‘quasi­
legislative’ officials,” Morrison, 487 U.S. at 689 n.28.12 Moreover, this Office
has found the rationale of Wiener “ questionable.” 13 Nonetheless, the question
here is what Congress intended in 1962 when enacting §208, not whether the

10S e e a lso M o rriso n , 487 U .S . at 687 (ex p lain in g H u m p h rey 's E xecutor) ; P ow er o f the P resident to Rem ove
M e m b ers o f th e T ennessee V alley Authority F rom O ffice, 39 O p A tt’y G en. 145, 146 (1938) (Jackson, A cting A .G.)
(H u m p h r e y ’s E x e c u to r rested on facts that th e F T C “ exercises quasi-leg islativ e and quasi-judicial fun ctio n s and
is n o t a p art o f th e ex e cu tiv e b ra n c h ” , Court a ls o stressed leg islativ e history “ m dicaung a p u rp o se o f th e C ongress
to se c u re th e m a x im u m ind e p en d en ce of the C o m m issio n from E x ecu tiv e interference and co n tro l” ).
11 T h e W a r C laim s C o m m issio n w as established by the W ar C laim s A ct o f 1948, Pub. L. N o 8 0 -8 9 6 , 62 Stat
1240 Its re sp o n sib ility w as to h ea r and adjudicate certain claim s arising o ut o f enem y co n d u ct d u n n g the Second
W o rld W ar.
]2S ee a lso R u b e ro id C o , 343 U .S at 487-88 (Jackson, J , dissenting)
l3 77ie C o n s titu tio n a l Sep a ra tio n o f Powers betw een the P resid en t a n d C ongress, 20 O p O .L .C 124, 168 n 115
(1 9 9 6 ) ( “ D ellin g er M em o ra n d u m ” ). Specifically, w e said that “ [t]he rationale o f W iener, w hich is essen tially that
C o n g ress m u st h av e im plied a for-cause rem oval restriction w hen th e Court believes that th e functions o f the agency
d em an d such te n u re p rotection, 357 U.S at 3 5 3 -5 6 , seem s questionable. T h ere w ould be nothing illogical in a
le g islativ e d ec isio n , fo r exam ple, to protect a g a in st review o r revision o f th e decisions o f th e agency, see id. 3 5 4 -
55, w h ile placin g th e ag e n c y ’s decisionm akers w ithin the control o f the P resident. . . T o the extent that W iener
assu m es th a t co n tro l is and o u g h t to be a b in a ry m a tte r— eith er plenary o r non-existent — its reasoning is difficult
to reco n c ile w ith m o re recen t separauon o f p o w ers decisions th a t reject su ch an either/or approach to presidential
co n tro l. Id. W e n o ted , how ever, that Wiener “ co n tin u es to be fo llo w e d ” in th e lo w er courts Id.

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Constitution admits the possibility of “ hybrid” agencies not belonging to any
of the three branches. We think it plausible to suppose that in 1962, Congress
would have understood a statutory reference to “ independent agencies” to mean
agencies such as the FTC or the War Claims Commission, i.e., agencies that were
not then considered to be part of the executive branch, or indeed of any of the
three branches.
Assuming that such was Congress’s intent, we find that the Commission would
not be an “ independent” agency under the standards of Humphrey’s Executor
or Wiener. First, unlike the FTC or the War Claims Commission, the Commission
exercises no functions that under Humphrey’s Executor and Wiener were consid­
ered to be adjudicatory in nature. Second, the Commission exists solely to conduct
a-study and to report its findings and recommendations to Congress, the President,
and State and tribal governments.14 Its responsibilities are “ essentially of an inves­
tigative and informative nature, falling in the same general category as those
powers which Congress might delegate to one o f its own committees." Buckley
v. Valeo, 424 U.S. 1, 137 (1976) (emphasis added). We think that the Commission
functions much as a congressional committee does when conducting an investiga­
tion or drafting a legislative proposal based on the information it has gathered;
indeed, it seems to us that, given its overall statutory structure, the Commission
is a part of the legislative branch.15 It is therefore unlike the “ headless fourth
branch” regulatory agency that Humphrey’s Executor took the FTC to be.
In summary: because Humphrey’s Executor and Wiener were assuredly “ within
the lively knowledge of Congress” when §208 was enacted. Wiener, 357 U.S.
at '353, we think that they provide a plausible test of what Congress intended
when referring in that section to “ independent agenc[ies].” If that test is applied,
then the Commission cannot be counted as “ independent.”

C.

The paucity of relevant legislative history relating to § 208 leaves open a second
possibility: that an agency could be considered independent under the statute if,
and only if, its head (or, in cases where the agency has a collective head, the
members of that body) enjoys at least some degree of protection against removal
from superior officials, whatever the branch to which the agency belongs. In other
words, the Congress that enacted § 208 may have perceived some agencies as
“ independent” even if they were located in a particular branch (rather than in
a putative “ headless fourth branch” ), provided that they resembled the paradig­

14 “ T his com m ission does not have the pow er to regulate, only to m ake recom m endations It is a study co m m issio n ,
not a regulatory body ” 142 Cong. Rec. 17,421 (1996) (statem ent o f Sen G lenn).
15 A s discussed above, w e have previously concluded that the C om m ission is not w ithin th e executive branch.
See su p ra note 2 W hat branch a com m ission m ay fall in depends on a n um ber o f factors W e do not m ean to
suggest here that w henever a com m ission’s m ission is to conduct a study and to rep o rt its findings and reco m m en d a­
tions to C ongress that it is necessarily legislative rath er than executive

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matic independent agencies with respect to tenure protection. Accordingly, agen­
cies in the legislative or judicial branches, as well as in the executive, could be
counted as “ independent” under §208. In fashioning this interpretation, we again
consult the Supreme Court’s pre-enactment case law. We also find support for
it in several of this Office’s precedents.
As construed by the Supreme Court only a year before § 208 was enacted, its
precursor statute, 18 U.S.C. §434 (Supp. II 1946), was said to be designed “ to
insure honesty in the Government’s business dealings by preventing federal agents
who have interests adverse to those of the Government from advancing their own
interests at the expense of the public welfare.” United States v. Mississippi Valley
Generating Co., 364 U.S. 520, 548 (1961). The individual with whose conflicted
activities the Court was most concerned in Mississippi Valley was a part-time
consultant to the Bureau of the Budget (the precursor of the Office of Management
& Budget). At the time, the Bureau of the Budget was apparently considered to
be in some sense “ independent.” See Lathrop v. Donohue, 367 U.S. at 853
(Harlan, J., concurring in judgment); National F ed’n o f Federal Employees v.
Cheney, 883 F.2d 1038, 1045 (D.C. Cir. 1989) (Bureau of Budget was “ quasi­
independent” entity within Treasury Department), cert, denied, 496 U.S. 936
(1990). Nonetheless, the Bureau of the Budget could not have been “ inde­
pendent” in the sense indicated by Humphrey’s Executor and Wiener, if only
because the Treasury Department, where the Bureau had been lodged, was plainly
within the executive branch.16 It is at least conceivable, therefore, that Congress
intended § 208 to apply to certain agencies that were acknowledged to belong
to a particular branch, provided that they had a sufficient resemblance to the con­
stitutional paradigms of “ independence.” In particular, since protection against
removal has figured in the cases as the key element in defining agency “ independ­
ence,” an agency in the legislative or judicial branch could be “ independent”
within the meaning of § 208 if its head enjoyed some form of tenure protection.
Cf. Williams, 289 U.S. at 562.
Several of this Office’s opinions have reflected this possibility, finding that par­
ticular agencies were to be considered “ independent” for purposes of §208,
despite the fact that they were situated within the legislative or judicial branches.
To be sure, § 208 does not ordinarily apply to officers or employees of the legisla­
tive and judicial branches.17 Nevertheless, although an agency is within the legis­
lative or judicial branch, we have thought that it might still be considered ‘‘inde­
pendent” for purposes of § 208. Our opinions in this line are relevant to the status
o f the Commission under § 208, insofar as it might be argued that the Commission

16 S ee P o w e r o f the P resid en t to Remove M e m b ers o f the T ennessee Valley A u th o rity F rom O ffice, 39 O p A tt’y
G en at 146 (u n d er H u m p h r e y ’s Executor, o n ly an agency “ not a p art o f the ex ecu tiv e b ran ch ” could be considered
in d e p en d en t fo r sep aratio n o f pow ers analysis).
17 S ee G P O O p in io n , 9 O p. O .L C at 5 6 (discussing leg islativ e history); G A O O pinion, 3 O p. O .L C . at 435
(§ 2 0 8 an d co m panion statutes “ do not by th e ir term s and w ere not intended to apply to officers and em ployees
o f th e le g islativ e and ju d ic ia l branches” ).

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 Applicability o f 18 U.S.C. § 208 to National Gambling Impact Study Commission

is an “ independent” agency in the legislative branch. As further discussed below,
however, that suggestion ultimately lacks merit.
Three OLC opinions are relevant. First, in the GAO Opinion, we found that
the GAO was, under §208, an “ independent” body not within the executive
branch and arguably within the legislative branch. See GPO Opinion, 9 Op. O.L.C.
at 57-58 (citing GAO Opinion, 3 Op. O.L.C. 433). The Comptroller General is
removable “ not only by impeachment but also by joint resolution of Congress,”
Bowsher v. Synar, 478 U.S. at 728, and consequently he or she is an officer of
the legislative branch who “ may not be entrusted with executive powers.” Id.
at 732. Nonetheless, it remains the case that the governing statute provides that
Congress may remove that officer only for a cause such as inefficiency, neglect
of duty, or malfeasance. Id. at 728—29. In the GAO Opinion, we analyzed the
effect of the tenure protection enjoyed by the Comptroller General, together with
other statutory provisions of title 31, on the status of that officer under §208.
Without denying that the Comptroller General and the GAO are “ subservient to
Congress,” 478 U.S. at 730,18 we found that the statute gave the Comptroller
General some measure of “ independence” from Congress, so that GAO officers
and employees were properly considered subject to § 208. We said:

The establishment of a fixed tenure of office, subject to removal
for cause, has generally been regarded as intended to promote an
element of independence of action. C f, Humphrey’s Executor v.
United States, 295 U.S. 602, 624—26 (1935). Thus, while the Comp­
troller General and GAO are independent of the executive branch,
they apparently are expected to be somewhat independent of the
legislative branch as well. I therefore am led to conclude that what­
ever their status for other purposes, the Comptroller General and
officers and employees of the GAO are officers and employees of
an “ independent agency of the United States” for purposes of 18
U.S.C. § 207 — §§ 208 and 209 as well.

GAO Opinion, 3 Op. O.L.C. at 436.19
Second, in the GPO Opinion, we concluded that the GPO is not “ independent”
for purposes of § 208. We reached that conclusion despite the fact that the Public
Printer is presidentially appointed. Our analysis tracked the judicial view that the
GPO is an entity within the legislative branch, whose primary function is to pro­
vide support for Congress. See GPO Opinion, 9 Op. O.L.C. at 57.20 The question

[* S ee a lso id. at 746 n .l 1 (S tevens, J., concurring in ju dgm ent) (C om ptroller Genera) and G A O “ h av e a fundam en­
tally different relationship w ith C ongress than do independent agencies like th e Federal T rad e C o m m issio n ” )
19In addition, w e note that form er 31 U S C §41 (a) (1921) (now 31 U .S.C . § 7 0 2 (a) (1994)),-specifically d eclared
the G A O to be “ independent” o f th e executive. See G A O O pinion, 3 O p. O .L .C . at 436
20 W e have subsequently review ed the status o f the G P O at som e len g th , and h ave again found that it is an
agency w ithin th e legislative branch See Involvem ent o f the G overnm ent P rinting O ffice in E xecutive B ranch Printing
C ontinued

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 Opinions o f the Office o f Legal Counsel in Volume 23

o f the Public Printer’s tenure of office was not considered in this opinion, although
our conclusion would have been fortified if it had been. The GPO’s statute, 44
U.S.C. §§301-317, vests appointment power of the Public Printer in the President
(subject to Senate advice and consent), but is silent as to the Public Printer’s
removal. By inference, therefore, the Public Printer can be removed at will by
the appointing authority (i.e., the President), and does not enjoy tenure protection.
See Dellinger Memorandum, 20 Op. O.L.C. at 172-73 (because the Librarian of
Congress — like the GPO, a congressional agency — “ is not protected by an
explicit for-cause removal limitation, . . . we therefore infer that the President
has at least the formal power to remove the Librarian at will” ). Our conclusion
as to the GPO can thus be read to provide some (indirect) support for the view
that an agency in the legislative (or judicial) branch is ‘ ‘independent’’ for purposes
of § 208 if, but only if, its head enjoys a degree of tenure protection.
A third opinion addressing the United States Sentencing Commission falls
within this line. See Memorandum for Jamie Gorelick, Deputy Attorney General,
from Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of
Legal Counsel, Re: Sentencing Commission/Conflict Rules at 14 (July 21, 1994)
(“ Sentencing Commission Opinion” ). There we found the Sentencing Commis­
sion, which had been established by statute as “ an independent commission in
the judicial branch of the United States,” 28 U.S.C. § 991(a) (1994), to be an
“ independent” agency under §208; see also Mistretta v. United States, 488 U.S.
361, 384—85, 390, 393 (1989) (Sentencing Commission held an independent
agency within judicial branch). Like the GAO and unlike the GPO, the Sentencing
Commissioners enjoy some degree of tenure protection: the statute “ grants the
President authority to remove members of the Commission, although ‘only for
neglect o f duty or malfeasance in office or for other good cause shown.’ 28 U.S.C.
§ 991(a).” Mistretta, 488 U.S. at 409. Here, too, an agency that was located out­
side the executive branch was found to be “ independent” under §208, and here
again the agency head enjoyed tenure protection.
In the present case, this test o f “ independence” is not met. Nothing in the
Act creating the Commission states or implies that Commissioners are to enjoy
any form of tenure protection. On this reading of the statute (which, like the
reading outlined in Part I, seems to us a plausible construction), the Commission
is not subject to § 208.
O f the three OLC precedents considered in this Part, the GPO Opinion, holding
§ 208 inapplicable, closely fits the circumstances of the Commission. Moreover,
the conclusion that the Commission is not ‘ ‘independent’’ for purposes of § 208
under the test considered here harmonizes with our precedents in another respect:
it accords with our past view that the section does not cover those who are ‘‘prop­
erly regarded as officers or employees o f the Congress or one of its Houses or

a n d D u p lic a tin g , 20 O p. O .L .C . 214 (1996) M o re recently still, w e reaffirm ed the an alysis o f the la tte r m em orandum .
S e e G o vern m en t P rinting O ffice Involvem ent in Executive B ranch P rin tin g , 2 0 O p. O L C . 282 (1996).

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 Applicability o f 18 U.S.C. §208 to National Gambling Impact Study Commission

agencies and who are responsible in some immediate sense to the Congress,”
such as “ those officers and employees appointed by the Congress or one House
thereof to perform functions in aid of the legislative process.” GAO Opinion,
3 Op. O.L.C. at 435-36.

II.

We find no other reason to believe that Congress intended to subject the
Commission to §208. On the contrary, our conclusion that the Commission is
not “ independent” for purposes of §208 is well supported by the language and
legislative history of the Act.
First, nothing in the language of the Act itself designates the Commission as
“ independent.” As noted above, this distinguishes the Commission from other
bodies that we have found to be subject to § 208, such as the GAO and the Sen­
tencing Commission.
Second, the language of the Act assumes that the nine Commissioners will rep­
resent a variety of distinct and incompatible points of view with respect to gam­
bling, and that some Commissioners will be associated with the gambling industry.
Thus, section 3(b)(2) of the Act states that “ [t]he [Commission] members may
be from the public or private sector, and may include . . . members of . . .
industry.” In addition, section 3(b)(3) states that the appointing authorities are
to consult together “ to achieve, to the maximum extent possible, fair and equitable
representation of various points of view” on the Commission. That the Commis­
sion membership was intended to include representatives of different points of
view — some of whom could be expected to have financial interests in the
Commission’s recommendations — does not in itself mean that §208 is inappli­
cable, see Office of Government Ethics Informal Opinion 82 x 22 (1989 ed.).
Nonetheless, the statutory criteria for Commission membership clearly indicates
that Congress was not attempting to insulate the Commission from outside influ­
ences in order to ensure its “ independence.”
The legislative history confirms that understanding. The House Judiciary
Committee’s Report on the legislation, H.R. 497, stated:

the Committee expects that the [appointing] authorities may con­
sider for appointment representatives of various interested groups
including, gambling proponents and opponents, state gambling
regulators, federal and state prosecutors, Indian gambling operators,
professionals who treat compulsive gamblers, casino operators,
activists who have opposed gambling referenda, state lottery offi­
cials, and representatives of non-gambling businesses in areas
around gambling operations.

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 Opinions o f the Office o f Legal Counsel in Volume 23

H.R. Rep. No. 104—440, pt. 1, at 8 (1995), reprinted in 1996 U.S.C.C.A.N. 1192,
1197.
In the House debate, Representative Hyde, Chairman of the House Judiciary
Committee that reported out the bill, sought to answer charges that the Commis­
sion might be skewed against the gambling industry. He said:

I believe that this Commission can do the most good if its study
is as neutral, objective, and comprehensive as possible — consid­
ering the views of all sides o f this issue. In that spirit, I proposed
a committee amendment in the nature of a substitute to H.R. 497,
which the Judiciary Committee adopted on a voice vote.

My substitute included the vast majority of the provisions con­
tained in H.R. 497 as originally introduced, but it added language
so as to assure that all points of view would be represented on
the Commission. Specifically, the bill now requires that the
appointing authorities consult together to ensure that the overall
makeup of the Commission fairly and equitably represents] various
points of view.

142 Cong. Rec. 3642-43 (1996).21
Thus, instead of seeking to promote public confidence in the Commission’s
study by requiring that the Commission be “ independent” of outside influence,
Congress preferred an approach in which at least some Commissioners could have
open and avowed interests, biases and commitments that would check and balance
those o f other Commissioners. From this (partly) “ adversarial” system, it was
hoped that a balanced and objective study would be more likely to result. Plainly,
a Commission so conceived would be very likely to include members whose per­
sonal stakes in the outcome of the Commission’s work would be disqualifying
under § 208, if that statute were to apply. Given Congress’s careful decisions about
the nature o f the Commission, the statute gives no indication that §208 was
intended to apply to this advisory body.

21 S im ilarly, in th e S en ate deb a te. Senator C o ats, a supporter, stated:
O p p o n en ts o f this c o m m issio n have raised m any charges against it. T h e y have claim ed th at the co m m is­
sio n is a tool o f the relig io u s right. They h av e claim ed th a t the com m issio n w ill b eco m e a w itch hunt
ag a in st th e g am b lin g industry.

M r. P resid en t, these claim s are unfounded. T h e app o in tm en t o f com m issio n ers w ill b e equally divided
b etw een th e ex e cu tiv e bran ch and the tw o H o u ses o f C ongress, en su rin g that no factio n m ay dom inate
th e w ork o f th e com m ission.
142 C o n g . R ec. 17,425, 17,426 (1996).

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 Applicability o f 18 U.S.C. § 208 to National Gambling Impact Study Commission

Conclusion

For all of the above reasons, we conclude that the Commission should not be
considered an “ independent” agency within the meaning of §208, whichever
meaning of that term is adopted, and hence is not subject to that statute.

BETH NOLAN
Deputy Assistant Attorney General
Office o f Legal Counsel

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