Constitutionality of Legislation Extending the Terms of Office of United States Parole Commissioners

Constitutionality of Legislation Extending the Terms of Office of
United States Parole Commissioners

B e c a u se U n ite d S ta te s P a ro le C o m m is sio n e rs m a y be re m o v e d b y the P resid e n t at w ill, le g islatio n
e x te n d in g th e te rm s o f o ffic e o f certain P a ro le C o m m is sio n e rs , d oes no t v io la te the A p p o in tm e n ts
C la u se .

July 15, 1994

M e m o r a n d u m O p in io n f o r t h e D e p u t y A t t o r n e y G e n e r a l

You have asked for our opinion as to whether Pub. L. No. 101-650, § 316, 104
Stat. 5089, 5115 (1990), which extends the terms o f United States Parole Com m is­
sioners to N ovem ber 1, 1997, violates the Appointments Clause of the Constitu­
tion. U.S. Const, art. II, § 2, cl. 2. W e conclude that it does not.

I.

The United States Parole Com m ission (“Parole Commission”) is an
“independent agency in the Department of Justice,” 18 U.S.C. §4202, and is
vested with authority to establish the organizational structure for receiving, hear­
ing, and deciding requests for parole; to grant or deny an application for parole; to
impose reasonable conditions on an order granting parole; to modify or revoke an
order paroling any prisoner; to request probation officers and any other appropriate
individuals or entities to assist or supervise parolees; and to issue rules and regula­
tions for effectuating these powers. Id. § 4203. In addition, the Chairman of the
Parole Com m ission has the authority to appoint and fix the compensation o f the
Parole C om m ission’s employees, including hearing officers, to assign duties
among officers and employees of the Parole Com mission, and to otherwise admin­
ister the Parole Com m ission. Id. § 4204. The Parole Commission comprises nine
Com m issioners appointed for six y ear terms. Id. § 4202. The statute also includes
a holdover provision under which C om m issioners continue to serve until a succes­
sor is appointed, “except that no C om m issioner may serve in excess of twelve
years.” Id.
The Sentencing Reform Act o f 1984 (“SR A ”), Pub. L. No. 98-473, 98 Stat.
1837, 1987 (1984), abolished parole for all federal offenders sentenced under its
provisions. To accom plish this, the SRA repealed the parole provisions, including
the provision establishing the Parole Com m ission, of title 18 of the United States
Code, effective N ovem ber 1, 1987. In order to accommodate those prisoners sen­
tenced under the sentencing system in place before enactment of the SRA — and
therefore still eligible for parole — the SRA specifically provided that the parole

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provisions would remain in effect for five years after the SRA ’s effective date. It
added that, § 4202 notwithstanding, “the term of office of a Commissioner who is
in office on the effective date is extended to the end of the five year period after the
effective date of this Act.” Pub. L. No. 98-473, § 235(b)(2), 98 Stat. at 2032. In
1990, Congress realized that there would be a need for the Parole Commission
beyond the five year extension period and amended § 235(b) to provide a ten year
period, Pub. L. No. 101-650, 104 Stat. at 5115, which apparently will carry the
Parole Commission through to November 1, 1997. See M emorandum for W alter
Dellinger, Assistant Attorney General, Office of Legal Counsel, from M ichael A.
Stover, General Counsel, United States Parole Commission (June 2, 1994).
In 1987, this office issued an opinion concluding that the five year extension in
SRA § 235(b)(2) was unconstitutional, apparently on the grounds that any legisla­
tion purporting to extend the term of an incumbent officeholder violates the A p­
pointments Clause. See R eappointm ent o f U nited States P arole C om m issioners,
11 Op. O.L.C. 135 (1987). The opinion concluded, however, that since the pre­
existing holdover provision at 18 U.S.C. § 4202 is valid, incumbents whose terms
expired could remain in place for up to a total o f twelve years, unless a successor
was sooner appointed. W e are informed that this twelve year period will elapse in
early 1995 for at least three Commissioners who were in office on the effective
date of the SRA. See M emorandum for W alter Dellinger, Assistant Attorney G en­
eral, Office of Legal Counsel, from Jamie S. Gorelick, Deputy Attorney General,
Re: R equest f o r Opinion on Term Lengths o f U nited States P arole C om m issioners
at 2 (June 1, 1994). Because we conclude that the term extension at SRA
§ 235(b)(2) is in fact valid, any Commissioners who were validly in office on the
effective date of the SRA may continue in office until November 1, 1997.'

II.

A.

The Constitution prohibits Congress from exercising the power to appoint offi­
cers o f the United States. U.S. Const, art. II, § 2, cl. 2; Buckley v. Valeo, 424 U.S.
1, 124-41 (1976). On the other hand, the Constitution endows Congress with
authority to create and structure offices. U.S. Const, art. I, § 8, cl. 18. This power
has been taken to encompass the authority to add germane duties to an office, see
Shoem aker v. U nited States, 147 U.S. 282 (1893), and to set and amend the term of
an office. See In re Investm ent Bankers Inc., 4 F.3d 1556 (10th Cir. 1993), cert,
denied, 510 U.S. 1114 (1994); In re Benny, 812 F.2d 1133 (9th Cir. 1987), cert.

1 The question we have been asked to address is the general one o f w hether the A ppointm ents C lause
stands as a bar to the operation o f $ 235(b)(2) A nsw ering this question does not depend upon the sp ecific
circum stances o f any particular C om m issioner M oreover, we have not been provided any such inform ation,
and thus do not draw any conclusions as to how o r w hether § 235(b)(2) applies to any specific C o m m is­
sioner

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den ied, 510 U.S. 1029 (1993); In re Koerner, 800 F.2d 1358 (5th Cir. 1986); Civil
S ervice R etirem en t A ct — P ostm asters — A u tom atic Separation fro m the Service,
35 Op. A tt’y Gen. 309, 314 (1927).
T hese provisions are placed in potential tension when Congress extends the
term o f an office and seeks to apply the extension to the incumbent officeholder.
W hether any tension actually results depends on how the extension functions. If
applying an extension to an incumbent officer would function as a congressional
appointm ent o f the incumbent to a new term, then it violates the Appointments
Clause. The classic exam ple of legislation that raises this tension is an extension of
the tenure o f an officer whom the President may remove only “for cause.”2
A t the other end o f the continuum is legislation that extends the term of an of­
fice, including its incumbent, the holder of which is removable at will. In this in­
stance, it has long been the position of the Office o f Legal Counsel and the
D epartm ent o f Justice that there is no violation of the Appointments Clause, for
here the President remains free to rem ove the officer and embark on the process of
appointing a successor — the only impediment being the constitutionally sanc­
tioned one o f Senate confirmation. In short, such legislation leaves the appointing
authority — and incidental removal power — on precisely the same footing as it
was prior to the enactm ent of the legislation. S ee Sentencing Commission Opinion
at 7-9 (“In sum , the extension of tenure of officers serving at will raises no A p­
pointm ents Clause problem ”); D isp la c ed P erson s Com m ission — Terms o f M em ­
bers, 41 Op. A tt’y Gen. 88, 89-90 (1951).3 This office has opined that Parole
C om m issioners are removable at will. See M em orandum for Rudolph W. Giuliani,
A ssociate Attorney General from Theodore B. Olson, Assistant Attorney General,
Office of Legal Counsel, Re: The P re sid e n t’s P ow er to Remove P a ro le C om m is­
sio n ers (Aug. 11, 1981) (“Parole C om m isioner Removal M emorandum”). If we
adhere to this view, the extension o f the Parole Com m issioners’ terms does not
violate the A ppointm ents Clause.

2 W h ile such a statute “is constitutionally q u e stio n ab le ,” it w ould not represent a p e r se violation o f the
A pp o in tm en ts C lau se S ee M em orandum for th e A ttorney G eneral from W alter D ellinger, A ssistant A ttor­
ney G en eral, O ffice o f Legal Counsel, Re: W h eth er M e m b e rs o f the Sentencing C om m ission W ho Were
A p p o in te d P rio r to the E na ctm en t o f a H o ld o v er S ta tu te M a x E xercise H oldover R ights P ursuant to the
Sta tu te at 9 (A p r 5, 1994) (“ Sentencing C om m ission M em o ran d u m ” ); s e e also Benny, 812 F 2d at 1141
3 O u r 1987 o p in io n asserts that an extension o f the term o f an officer violates the A ppointm ents Clause.
It d oes not d iscu ss any d istin ctio n between o ffice s held at w ill and those that include rem oval protection.
S ince the o n ly tw o O ffice o f Legal Counsel o p in io n s cited in the 1987 opinion both held that Parole C om ­
m ission ers are rem o v ab le at w ill by the President, see R e a p p o in tm ent o f U nited S tates P arole C om m ission­
ers, 11 O p. O .L .C . 135, 136 n I (1987), the b e s t reading o f the opinion is that it m eant that every legislative
ex ten sio n o f the term o f an incum bent officer violates the A p pointm ents C lause. T his assertion w as, at the
tim e it w as m ade, co n trary to this D epartm ent’s long-standing position, see, e.g., 41 O p. A tt'y G en. at 89-90,
35 O p A tt’y G en at 314, and has not been fo llo w e d since th at tim e, s e e Sentencing C om m ission O pinion
M oreover, an d m o st im portantly, the 1987 o p in io n is irredeem ably unpersuasive It m akes no effort to ex­
plain ho w leg islatio n ex ten d in g the term o f an o fficer w ho serv es at w ill im pinges on the pow er o f appoint­
m ent, an d w e can co n ceiv e o f no credible arg u m en t lhat an in frin g em ent rising to the level o f a constitutional
v io latio n m ay resu lt from such legislation. C o n seq u en tly , w e w ithdraw the holding in the 1987 opinion that
any leg islatio n ex ten d in g the term o f an o fficer w ho is rem o v ab le at will violates the A ppointm ents C lause.

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B.

The statute establishing the Parole Commission provides that it is an independ­
ent agency within the Department of Justice and that the Commissioners are to
serve six-year terms. 18 U.S.C. § 4 2 0 2 . The statute, however, is silent as to
whether the President may remove the Commissioners at will or only “for cause.”
As indicated, we have opined that Parole Commissioners are removable by the
President at will. Our conclusion had two bases — first, that there was no indica­
tion that Congress intended to limit the President’s removal authority and, second,
that any attempt to limit the President’s removal authority would be unconstitu­
tional since the Commissioners are “purely executive” officers. See Parole C om ­
missioner Removal M emorandum. The second basis o f our conclusion followed
then-applicable Supreme Court precedent on the constitutionality o f restrictions on
the President’s authority to remove officers.
The Supreme Court first addressed the question of such removal restrictions in
M yers v. U nited States, 272 U.S. 52 (1926),1which involved a statute that required
the President to obtain the Senate’s advice and consent before removing a Post­
master of the first, second, or third class. The M yers Court held that Congress may
not limit the President’s authority to remove any officer who is appointed by the
President by and with the advice and consent o f the Senate. Id. at 159. Several
years later, the Court narrowed this holding significantly, ruling that the C onstitu­
tion only prohibits removal restrictions with respect to “purely executive” officers.
See H um phrey's E xecutor v. U nited States, 295 U.S. 602, 627-28 (1935). The
Court held that, as to offices that are essentially quasi-legislative or quasi-judicial
in nature, Congress may limit the President’s removal authority. Some years later,
the Court addressed the related question of whether, in the absence o f an express
statutory provision, a removal restriction could be inferred. The Court ruled that
such restrictions could be inferred with respect to quasi-legislative or quasi-judicial
offices “whose tasks require absolute freedom from Executive interference.” W ie­
n er v. U nited States, 357 U.S. 349, 353 (1958). Following this framework, we
opined that Parole Commissioners — whose term is fixed by a statute that is silent
on the topic of removal — are purely executive officers; therefore, inferring a limit
on the President’s authority to remove them would violate the Constitution. As
such, we concluded that Parole Commissioners must be removable at will.
In the interim, the Supreme Court has abandoned this mode o f analysis. Spe­
cifically, M orrison v. Olson, 487 U.S. 654 (1988), determined that Congress could
place an express “for cause” limitation on the President’s removal authority even
with respect to “purely executive” officers. See id. at 689-93. The Court refused
simply to apply the category-driven approach that H u m ph rey’s E xecutor had been
taken to institute. Instead, the Court recast its prior references to the category o f an
office’s functions as merely a shorthand for the animating concern in such cases —
whether a given removal restriction violates separation of powers principles. Spe­

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cifically, under the C ourt’s current form ulation, “the real question is whether the
removal restrictions are o f such a nature that they impede the President’s ability to
perform his constitutional duty, and the functions o f the officials in question must
be analyzed in that light.” M orrison, 487 U.S. at 691.
In devising this formulation, the Court recharacterized the references to func­
tional categories in its earlier opinions as simply a means o f examining whether the
office and its functions were of such a nature as to require that they be vested in an
officer who is subject to a high degree of presidential control; that is, one who may
be rem oved at will. Id. at 687-91. It is important to note that, under the M orrison
form ulation, the nature o f an office and its functions remain essential factors in
determ ining w hether a removal restriction violates separation of powers; however,
the category with which those functions might be labeled does not end the inquiry.
The statute establishing the Parole Commission is silent regarding removal, see
18 U.S.C. § 4 2 0 2 , and therefore w e must determ ine whether it is appropriate to
infer such a restriction. M orrison, however, spoke directly only to the constitu­
tionality o f an explicit removal restriction. It therefore only expressly rejected the
label-driven approach in that context. Nevertheless, the W iener Court stated that
its holding followed logically from H u m ph rey’s E xecutor. See 357 U.S. at 356.
We view M orrison, then, as doing aw ay with the label-driven analysis in the con­
text o f inferred removal restrictions as well.
In M orrison , the Court looked to what the earlier decisions were trying to ac­
complish by inquiring into the nature of the office and functions at issue to resolve
whether, and when, Congress may expressly limit the President’s removal author­
ity. Taking a sim ilar approach in the context of implied removal restrictions, we
are persuaded that W iener turned on the C ourt’s determination that the Com m is­
sion could not have effectively carried out its functions unless the Commission was
‘“ entirely free from the control or coercive influence, direct or indirect,’ o f either
the Executive or the Congress.” W iener, 357 U.S. at 355-56 (quoting H u m ph rey’s
E xecutor, 295 U.S. at 629).
Therefore, our inquiry regarding inferred removal restrictions will focus on
whether it is necessary in order for the entity in question to be able to perform its
statutory mission that it be “free from the control or coercive influence, direct or
indirect, o f either the Executive or C ongress.” Only where this level o f independ­
ence is necessary will we infer that Congress intended the President’s removal
authority to be lim ited.4 Here again, the type o f function being performed is a
relevant consideration, but it is not dispositive.5

4 W e h ave no d o u b i that, ev en after M o rriso n , courts w ill continue to infer rem oval restrictions with
respect to o ffices c h arg ed p rim arily with the a d ju d icatio n o f d isputes b etw een private individuals. H ow ever,
it is less c le a r w h at o th e r circum stances, if a n y , w ould ju stify inferring a lim itation on the P resid en t's re­
m oval au th o rity
5 If it is d ete rm in e d that an im plied rem oval lim itation is necessary, we m ust then exam ine w hether such a
lim itatio n w o u ld v io late the d o c tn n e of sep aratio n o f pow ers by “ im p e d in g ] the P resident’s ability to p e r­
form his co n stitu tio n al d u ty .” M orrison, 487 U .S . at 691.

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Under this standard, we have no trouble adhering to our 1981 opinion that the
President may remove Parole Commissioners at will. Because the power to re­
move is incident to the power to appoint, we begin with the presumption that the
President has authority to remove Parole Commissioners at will. See, e.g., R e­
m oval o f M em bers o f the A dvisory Council on H istoric P reservation , 6 Op. O.L.C.
180, 188 (1982); 1 Annals of Cong. 496 (Joseph Gales ed., 1789) (statement of
James Madison) (“the power of removal result[s] by a natural implication from the
power of appointing”). Our 1981 opinion analyzed the Parole C om m ission’s func­
tions and concluded that the Commission is purely executive in nature. This is an
important indication, though not determinative, that it is not necessary to the
Comm ission’s function that it have the level of independence that “for cause” re­
moval protection entails. Our earlier opinion also searched the legislative history
and examined the statutory language and concluded that “[n ]e ith e r. . . disclose[d]
a Congressional intent to limit the President’s implied power to remove the C om ­
missioners.” Parole Commissioner Removal M emorandum at 2.6 We see no rea­
son to revisit any of these conclusions.
W e find com pelling the history of the discharge of the parole function.
“[P]arole originated as a form of clemency; to mitigate unusually harsh sentences,
or to reward prison inmates for their exemplary behavior while incarcerated.” S.
Rep. No. 94-369, at 15 (1975), reprin ted in 1976 U.S.C.C.A.N. 335, 336. C lem ­
ency, like the correctional functions it at least partially supports, has long been and
typically remains a power exercised by or under the direction of a politically ac­
countable executive official. Cf. U.S. Const, art. II, § 2, cl. 1 (vesting the pardon
power in the President).
Until the relatively recent establishment of the Parole Commission, the function
of administering the federal parole system was discharged by the Board o f Parole.
This board was a component of the Department of Justice, and its members were
clearly removable at will. See Act of Sept. 30, 1950, ch. 1115, 64 Stat. 1085, 1085
(“There is hereby created in the Department of Justice a Board of Parole . . . .”);
Act of June 25, 1948, ch. 645, 62 Stat. 683, 854 (containing no provision of a fixed
or abbreviated term). The legislative history contains no indication that the threat
of removal at will or other political pressures played any role in the operations o f
the Board o f Parole or motivated the establishm ent of the Parole Commission. See
S. Rep. No. 94-369, at 15, reprin ted in 1976 U.S.C.C.A.N. at 336. In the face o f
this long-standing practice o f entrusting the adm inistration of the federal parole
system to officers who are removable at will, we cannot say that a limitation on the
President’s authority to remove Parole Commissioners is necessary to allow the
Commission effectively to carry out its statutorily prescribed functions.

6 The opinion ex p ressly considered and persuasively rejected argum ents that either the provision creating
the C om m ission as an independent agency in the D epartm ent o f Justice or establishing fixed term s fo r the
C om m issioners could sup p o rt an inference o f a restriction on the P resid en t's rem oval authority Id at 1-4.

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III. Conclusion

Legislation extending the term o f an officer who serves at will does not violate
the A ppointm ents Clause. As stated, we adhere to our opinion that the President
may rem ove Parole Commissioners at will. Consequently, Pub. L. No. 101-650,
§ 316, 104 Stat. at 5115, which extends the terms o f office of certain United States
Parole C om m issioners, does not violate the Appointments Clause, and we recede
from our earlier opinion (Reappointm ent o f U nited S tates P arole C om m issioners ,
11 Op. O.L.C. 135 (1987)) to the extent that it contradicts this conclusion.

W ALTER DELLINGER
A ssistan t A ttorney G eneral
Office o f L egal Counsel

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