Executive Branch Participation in the Cyberspace Solarium Commission

(Slip Opinion)

Executive Branch Participation in the
Cyberspace Solarium Commission

In our tripartite constitutional structure, any commission performing federal functions
must reside within a single one of the three branches of government.
The Cyberspace Solarium Commission is properly viewed as a Legislative Branch entity,
because congressional appointees compose the majority of the Commission’s member-
ship, the Commission exercises the investigative authorities of a congressional com-
mittee, and the Commission’s ultimate mission is to advise Congress.
The Executive Branch officials serving on the Commission should act with one unified
voice, subject to executive supervision, in advising the Commission and should main-
tain the confidentiality of Executive Branch information when sharing their infor-
mation and expertise with the Commission.

October 9, 2020

MEMORANDUM OPINION FOR THE LEGAL ADVISOR
NATIONAL SECURITY COUNCIL

The John S. McCain National Defense Authorization Act for Fiscal
Year 2019, Pub. L. No. 115-232, 132 Stat. 1636 (2018) (“FY 2019
NDAA”), created the Cyberspace Solarium Commission (“Commission”)
to “develop a consensus on a strategic approach to defending the United
States . . . against cyber attacks.” Id. § 1652(a)(1), 132 Stat. at 2140–41.
The fourteen-member Commission consisted of representatives from both
the Legislative Branch and the Executive Branch: four senior Executive
Branch officers who served ex officio and ten appointees from Congress.
Id. § 1652(b)(1)(A), 132 Stat. at 2141. The Commission was required to
provide a report to Congress with recommendations related to the proper
“core objectives” for cyber defense and to “various strategic options to
defend the United States.” 1 Id. § 1652(f )(1)–(2), (k)(1), 132 Stat. at 2142,
2146. The Director of National Intelligence (“DNI”), Secretary of De-
fense, and Secretary of Homeland Security were then required to provide
their assessment of the report within 60 days of receiving it. Id. § 1652(l),
132 Stat. at 2146.

1 The Commission publicly released the report on March 11, 2020, but was not re-

quired by statute to formally submit the report to Congress until April 30. See Cyberspace
Solarium Commission, Final Report (Mar. 2020), https://www.solarium.gov/report.

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 44 Op. O.L.C. __ (Oct. 9, 2020)

The structure of the Commission raised a number of questions under
the constitutional separation of powers, which bore upon whether and how
the Executive Branch members of the Commission could participate in its
work. This memorandum memorializes this Office’s oral advice provided
to the Executive Branch members of the Commission, regarding the
organization of the Commission’s operations, votes by Executive Branch
officials about the Commission’s business, and the Executive Branch
contributions to the Commission’s final report.
Commissions with members appointed by both the Legislative and Ex-
ecutive Branches have been established on many prior occasions, but the
Executive Branch has long recognized that such “hybrid” commissions
present constitutional concerns. 2 Although these commissions may law-
fully exercise advisory functions, where they exercise the authority of the
government, they must do so within the confines of the Constitution’s
tripartite structure and reside in one branch. Here, congressional appoin-
tees composed the majority of the Commission’s membership, the Com-
mission exercised the investigative authorities of a congressional commit-
tee, and the Commission’s ultimate mission was to advise Congress. The
Commission thus was properly viewed as a Legislative Branch entity.

2 See, e.g., Statement on Signing the Bill Establishing a Commission on the Bicenten-
nial of the United States Constitution (Sept. 29, 1983), 2 Pub. Papers of Pres. Ronald
Reagan 1390 (1983) (“[B]ecause of the constitutional impediments contained in the
doctrine of the separation of powers, I understand” that the Chief Justice and the congres-
sional members of the bicentennial commission “will be able to participate only in
ceremonial or advisory functions of the Commission, and not in matters involving the
administration of the act.”); Constitutionality of Resolution Establishing United States
New York World’s Fair Commission, 39 Op. Att’y Gen. 61, 62 (1937) (Cummings, Att’y
Gen.) (objecting to a congressional commissioner that would plan and appoint commis-
sioners for the New York World’s Fair as “amount[ing] to an unconstitutional invasion
of the province of the Executive”); Participation of Members of Congress in the Ronald
Reagan Centennial Commission, 33 Op. O.L.C. 193, 195 (2009) (“Ronald Reagan
Commission”) (identifying constitutional concerns with commissions with members
from multiple branches engaging in responsibilities that “extend beyond providing advice
or recommendations . . . or participating in ceremonial activities”); Memorandum for the
Attorney General from Theodore B. Olson, Assistant Attorney General, Office of Legal
Counsel, Re: Congressional Incursions into Areas of Executive Responsibility at 3–4 (Oct.
31, 1984) (“Congressional Incursions”) (describing the Department’s repeated “strong[]”
opposition to congressional creation of commissions with legislative and executive branch
appointees as “inconsistent with the tripartite system of government established by the
Framers of our Constitution” (internal quotation marks omitted)).

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 Executive Branch Participation in the Cyberspace Solarium Commission

We recognized that the Commission, as a Legislative Branch entity,
could benefit from participation of its Executive Branch members, but we
advised that those members should carry out their advisory functions not
as free agents, but as executive officers subject to supervision by their
departments, and ultimately, the President. Because the Commission’s
Executive Branch members represent the interests of the Executive
Branch in performing their work, we advised that they should not provide
independent statements in assessing the Commission’s work and that the
commission members should not vote individually on the Commission’s
final report or any of its subpoenas. The Commission’s report and its
subpoenas were the official actions of a Legislative Branch entity. While
the Executive Branch members could, in principle, have adopted and
advanced common positions on those actions, the Commission’s proce-
dures and the need to release its report promptly made it impracticable for
them to do so. We therefore advised the Executive Branch officials not to
vote, consistent with their accountability to the Executive Branch.
We further construed statutory provisions providing for the Executive
Branch to provide staff and office space to the Commission to be discre-
tionary, rather than mandatory, because the separation of powers imposes
constraints upon Congress’s ability to enlist the Executive’s staff and
physical resources. Finally, we advised that the Commission’s Executive
Branch members and staff were obliged to preserve Executive Branch
confidentiality interests. We explained that they should evaluate requests
for information in light of the accommodation principles at play when
congressional committees request information and support from the
Executive Branch, and in light of any executive privilege concerns, par-
ticularly given the classified nature of some of the Commission’s work,
see FY 2019 NDAA § 1652(g)(3)(C), 132 Stat. at 2144. See, e.g., United
States v. Am. Tel. & Tel. Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (requir-
ing each branch to “seek optimal accommodation through a realistic
evaluation of [their respective] needs . . . in the particular fact situation”).
Such obligations, however, do not mean that the Executive Branch offic-
ers could not accommodate the Commission’s legitimate interests in that
regard, consistent with the assistance regularly provided by the Executive
Branch to Congress.

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 44 Op. O.L.C. __ (Oct. 9, 2020)

I.

The FY 2019 NDAA established the Cyberspace Solarium Commission
to gather evidence and prepare a report recommending a long-term strate-
gy for defense against cyber attacks. Id. § 1652(a)(1), (f )(1)–(7), (k)(1),
132 Stat. at 2141–43, 2146. The Commission was modeled on President
Dwight D. Eisenhower’s Cold War-era “Project Solarium,” which gath-
ered three task forces of experts from public and private life to study
strategies for guarding against a potential stockpiling of atomic weapons
by the Soviet Union. 3
Congress directed the Cyberspace Solarium Commission “[t]o define
the core objectives and priorities” of a national cyber-defense strategy,
“weigh the costs and benefits of various strategic options,” “evaluate the
effectiveness of the current national cyber policy,” and “consider possible
structures and authorities that need to be established, revised, or augment-
ed within the Federal Government” to successfully guard against cyber
attacks. FY 2019 NDAA § 1652(f ), 132 Stat. at 2142–43. By statute, the
Commission’s fourteen members included the Principal Deputy DNI, the
Deputy Secretary of Homeland Security, the Deputy Secretary of Defense,
the Director of the Federal Bureau of Investigation, and ten congressional
appointees who could be members of Congress. Id. § 1652(a)(1)–(2),
(b)(1), 132 Stat. at 2141. On some prior occasions, Congress at least
purported to specify whether a hybrid commission of this sort should be
considered legislative or executive. 4 But it did not do so here.

3 See 164 Cong. Rec. S3927 (daily ed. June 13, 2018) (statement of Sen. Sasse, who
had originally proposed an amendment to the FY2018 NDAA that would have created the
Cyberspace Solarium Commission, see 163 Cong. Rec. S5674 (daily ed. Sept. 13, 2017));
see also Memorandum of Discussion at the 144th Meeting of the National Security
Council, Wednesday, May 13, 1953, in Dep’t of State Pub. No. 9347, 15 Foreign Rela-
tions of the United States, 1952–1954 (Korea) 1012, 1016 (1984) (describing statement of
President Eisenhower explaining the objectives of Project Solarium). President Eisenhow-
er named the project after the White House solarium, where the idea was conceived. See
William B. Pickett, Introduction: The Solarium Exercise of June 1953, in George F.
Kennan and the Origins of Eisenhower’s New Look: An Oral History of Project Solarium
3 (William B. Pickett ed., 2004).
4 See, e.g., FY 2019 NDAA § 1051(a)(1)–(4), (b), 132 Stat. at 1962–63 (establishing

an advisory commission “in the executive branch” with legislative and executive appoin-
tees to produce reports and recommendations on the national security uses of artificial
intelligence and machine learning); Evidence-Based Policymaking Commission Act of

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 Executive Branch Participation in the Cyberspace Solarium Commission

To carry out its mission, the Commission was authorized to exercise
investigative functions. The Commission was able to hold hearings, take
testimony, receive evidence, and issue subpoenas requiring witness
testimony and document production. Id. § 1652(g)(1)(A), 132 Stat. at
2143; see also id. § 1652(g)(1)(B), 132 Stat. at 2143. The statutes gov-
erning contempt of Congress were made applicable to failures to comply
with the Commission’s subpoenas. Id. § 1652(g)(1)(C), 132 Stat. at
2143. Separately, executive agencies were instructed, “to the extent
authorized by law, [to] furnish such information, suggestions, estimates,
and statistics” as are required for the Commission to carry out its duties.
See id. § 1652(g)(3)(A)–(B), 132 Stat. at 2143–44; see also, e.g., id.
§ 1652(g)(1)(A), 132 Stat. at 2143 (authorizing the Commission, “for
the purpose of carrying out the provisions of this section,” to require by
subpoena testimony, books, records, correspondence, and documents as
the Commission or “designated subcommittee or designated member
considers necessary”). In addition, the statute specified that the Secre-
tary of Defense “shall” provide the Commission with nonreimbursable
administrative services, funds, staff, and facilities, id. § 1652(g)(4)(A),
132 Stat. at 2144, and that the DNI and the heads of other executive
agencies “may” give the Commission administrative services and staff,
id. § 1652(g)(4)(B), (C), 132 Stat. at 2144. See also id. § 1652(h)(1)(B),
132 Stat. at 2144 (authorizing the detailing of federal staff to the Com-
mission).
The Commission was required to memorialize its recommendations in a
“final report” to the congressional defense, intelligence, and homeland
security committees, as well as to the Secretary of Defense, the Secretary
of Homeland Security, and the DNI. Id. § 1652(k)(1), 132 Stat. at 2146.
Within 60 days of receiving the report, the Secretaries and the DNI were
each to “submit to the congressional intelligence committees and the

2016, Pub. L. No. 114-140, §§ 2, 3(a), 4, 130 Stat. 317, 317–18 (2016) (establishing an
advisory commission “in the executive branch” with legislative and executive appointees
to produce recommendations for amending federal agency data infrastructure, database
security, and statistical protocols); see also Matthew E. Glassman & Jacob R. Straus,
Cong. Research Serv., R40076, Congressional Commissions: Overview, Structure, and
Legislative Considerations 10 (2017) (“In some instances, the establishment clause will
identify the commission as ‘established in the legislative branch.’”).

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 44 Op. O.L.C. __ (Oct. 9, 2020)

congressional defense committees an assessment” of the report, including
“such comments” as each of the three officials “considers appropriate.”
Id. § 1652(l), 132 Stat. at 2146. The original deadline for the report was
September 1, 2019, see id. § 1652(k)(1), 132 Stat. at 2146, but Congress
extended the deadline to April 30, 2020. National Defense Authorization
Act for Fiscal Year 2020, Pub. L. No. 116-92, § 1639, 133 Stat. 1198,
1750 (2019). On March 11, 2020, the Commission made the report avail-
able to the public, in anticipation of its formal submission to Congress in
April. See Cyberspace Solarium Commission, Final Report (Mar. 2020),
https://www.solarium.gov (last visited Oct. 9, 2020). The Commission
was to terminate within 120 days of the report’s formal submission to the
congressional defense and intelligence committees. See FY 2019 NDAA
§ 1652(k)(2)(A), 132 Stat. at 2146. During that 120-day period, the Com-
mission was able to wind down its activities and provide testimony to
Congress on its report. Id. § 1652(k)(2)(B), 132 Stat. at 2146.

II.

A truly hybrid commission with Executive and Legislative Branch ap-
pointees creates separation of powers concerns because it lacks accounta-
bility to any single branch of government. As the Supreme Court has
recognized, “[t]he Constitution sought to divide the delegated powers of
the new federal government into three defined categories, legislative,
executive and judicial, to assure, as nearly as possible, that each Branch
of government would confine itself to its assigned responsibility.” INS v.
Chadha, 462 U.S. 919, 951 (1983); see also, e.g., Martin v. Hunter’s
Lessee, 14 U.S. (1 Wheat.) 304, 329 (1816) (“The object of the constitu-
tion was to establish three great departments of government; the legis-
lative, the executive, and the judicial departments.”); Hayburn’s Case,
2 U.S. (2 Dall.) 408, 410 n.* (1792) (reporting the decision of the Circuit
Court for the District of New York, including Chief Justice Jay and Jus-
tice Cushing, which had observed “[t]hat by the Constitution of the United
States, the government thereof is divided into three distinct and independ-
ent branches, and that it is the duty of each to abstain from, and to oppose,
encroachments on either” (emphasis added)). In our tripartite constitu-
tional structure, any commission performing federal functions must reside
within a single one of the three branches of government.

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 Executive Branch Participation in the Cyberspace Solarium Commission

A.

This Office has long expressed constitutional concerns about hybrid
commissions, which occupy a “no-man’s land between . . . two branches,”
with commission members who risk being unaccountable to either of the
political branches. Memorandum for John R. Bolton, Assistant Attorney
General, Office of Legislative and Intergovernmental Affairs, from Doug-
las W. Kmiec, Deputy Assistant Attorney General, Office of Legal Coun-
sel, Re: H.R. 3345, 99th Cong. 1st Sess., at 2 (Apr. 9, 1986); see also
Congressional Incursions at 3–4 (describing such commissions as “incon-
sistent with the tripartite system of government established by the Fram-
ers of our Constitution” and detailing the Department’s repeated
“strong[]” opposition to congressional creation of hybrid commissions
(internal quotation marks omitted)). 5
The problems with hybrid commissions are two-fold. First, an entity
with members representing two branches is not fully accountable to any
governmental authority. The constitutional separation of powers is de-
signed to diffuse power among different federal actors to better protect
liberty. See, e.g., Bowsher v. Synar, 478 U.S. 714, 721 (1986) (recogniz-
ing that the “purpose of separating and dividing the powers of govern-
ment” was to “‘diffus[e] power the better to secure liberty’” (alteration in
original) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
635 (1952) (Jackson, J., concurring))). But “[t]he diffusion of power
carries with it a diffusion of accountability.” Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 497 (2010). To ensure that the
government remains responsive to the people, the constitutional separa-
tion of powers “requires that each branch maintain its separate identity,
and that functions and responsibilities be clearly assigned among the
separate branches, so that each can be held accountable for its actions.”
Memorandum for William Bradford Reynolds, Assistant Attorney Gen-
eral, Civil Rights Division, from Ralph W. Tarr, Acting Assistant Attor-

5 See, e.g., Statement on Signing a Bill Establishing a National Commission on Agri-

cultural Trade and Export Policy (Aug. 30, 1984), 2 Pub. Papers of Pres. Ronald Reagan
1211, 1211–12 (1984) (urging that the commission “be composed either entirely of
members selected by the legislative branch, if it is to serve primarily legislative functions,
or entirely of members appointed by the President, if it is to serve the executive branch”);
Statement on Signing the Patent Law Amendments Act of 1984 (Nov. 9, 1984), 2 Pub.
Papers of Ronald Reagan 1816, 1817 (1984) (same).

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 44 Op. O.L.C. __ (Oct. 9, 2020)

ney General, Office of Legal Counsel, Re: S. 519, 99th Cong. 1st Sess.,
the “Federal Employee Anti-Sex Discrimination in Compensation Act of
1985” at 2 (July 2, 1985).
“The creation of a Commission that is not clearly legislative, judicial,
or executive, tends to erode” this foundational restraint. Common Legisla-
tive Encroachments on Executive Branch Authority, 13 Op. O.L.C. 248,
251 (1989) (“Common Legislative Encroachments”) (internal quotation
marks omitted). When a blended executive-legislative body ultimately
reports to neither political branch, the public is left unable to determine
where the blame for “a pernicious measure . . . ought really to fall.” See
Free Enter. Fund, 561 U.S. at 498 (internal quotation marks omitted)
(quoting The Federalist No. 70, at 476 (Alexander Hamilton) (J. Cooke
ed. 1961)). And “[w]hen citizens cannot readily identify the source of
legislation or regulation that affects their lives, Government officials can
wield power without owning up to the consequences.” Dep’t of Transp. v.
Ass’n of Am. R.Rs., 575 U.S. 43, 57 (2015) (Alito, J., concurring). Be-
cause a branchless entity would undermine the accountability that the
separation of powers demands, the Constitution requires that every entity
exercising the authority of the federal government be accountable to a
single branch.
Second, once the nature of a hybrid commission is determined, that
constitutional location determines the roles that its executive and legisla-
tive members may play. To the extent that a commission exercises execu-
tive powers, for instance, agents of the Legislative Branch may not partic-
ipate, even in an advisory capacity. See, e.g., Metro. Wash. Airports Auth.
v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276
(1991) (“If the power is executive, the Constitution does not permit an
agent of Congress to exercise it.”); Buckley v. Valeo, 424 U.S. 1, 139
(1976) (per curiam) (holding that congressional appointees may “perform
duties only in aid of those functions that Congress may carry out by itself,
or in an area sufficiently removed from the administration and enforce-
ment of the public law”); FEC v. NRA Political Victory Fund, 6 F.3d 821,
827 (D.C. Cir. 1993) (observing that even in a purely advisory role, the
presence of ex officio congressional agents on an Executive Branch
commission violated the separation of powers); see also The Constitu-
tional Separation of Powers Between the President and Congress, 20 Op.
O.L.C. 124, 160 n.95 (1996) (“Separation of Powers”) (“[D]esignating a
member of Congress to serve on a commission with any executive func-

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 Executive Branch Participation in the Cyberspace Solarium Commission

tions, even in what was expressly labeled a ceremonial or advisory role,
may render the delegation of significant governmental authority to the
commission unconstitutional as a violation of the anti-aggrandizement
principle.” (citing NRA Political Victory Fund, 6 F.3d at 827)); Common
Legislative Encroachments, 13 Op. O.L.C. at 251–52.
At the same time, if a commission is an arm of the Legislative Branch,
then Executive Branch members may participate in an advisory role but,
in that capacity, they do not cease to be subject to the supervision of the
President. See Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct.
2183, 2197 (2020) (“The entire ‘executive Power’ belongs to the Presi-
dent alone,” and “lesser [executive] officers must remain accountable to
the President, whose authority they wield.”); see also, e.g., Constitution-
ality of the Direct Reporting Requirement in Section 802(e)(1) of the
Implementing Recommendations of the 9/11 Commission Act of 2007, 32
Op. O.L.C. 27, 31 (2008) (“Direct Reporting Requirement”) (“[S]tatutes
that interfere with the President’s ability to supervise, directly or through
subordinate officials, the Executive Branch’s communications with Con-
gress raise serious constitutional concerns.”). As discussed below, the
structure of the Cyberspace Solarium Commission presented a number of
concerns about the roles Executive Branch members may play in the
Commission, in light of its constitutional location.
Thus, the threshold question in evaluating the structure of a hybrid
commission is determining the branch in which the entity resides. This
approach finds consistent support in our precedents. In Status of the
Commission on Railroad Retirement Reform for Purposes of the Applica-
bility of Ethics Laws, 13 Op. O.L.C. 285 (1989) (“Railroad Retirement
Reform Commission”), we considered the Railroad Retirement Reform
Commission, whose members were appointed variously by the President,
congressional leaders, and the Comptroller General (an agent of Con-
gress). Id. at 286. The commission was charged with submitting a report
to Congress and to the President with legislative recommendations about
the railroad retirement system. Id. In view of the statute’s dual-reporting
requirement, the Commission was “vested with ‘[o]bligations to two
branches,’” but the “presence of such dual obligations” did not prevent its
“characterization . . . as part of one branch.” Id. at 287 n.5 (quoting Bow-
sher, 478 U.S. at 746 (Stevens, J., concurring in the judgment)). The
commission’s obligation to report to Congress “without any prior review”
by the Executive Branch would raise “serious constitutional questions,” if

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 44 Op. O.L.C. __ (Oct. 9, 2020)

the commission fell within the Executive Branch. See id. at 287–88. We
thus construed the statute’s dual-reporting requirement “as contemplating
that the Commission’s report would be prepared principally for Congress’
benefit” and concluded that the commission should be deemed to fall
outside the Executive Branch for purposes of laws governing conflicts of
interest and financial disclosure. See id. at 289–90.
We reached a similar conclusion with respect to the National Gambling
Impact Study Commission, an advisory commission with six members
appointed by Congress and three by the President. Applicability of 18
U.S.C. § 208 to National Gambling Impact Study Commission, 23 Op.
O.L.C. 29, 29 (1999) (“National Gambling Impact Study Commission”).
We emphasized that the commission performed only “information-
gathering and advisory functions, which need not be performed by the
executive branch.” Id. at 30 n.2. And we concluded that, because a ma-
jority of the commissioners were congressionally appointed and the com-
mission operated like a congressional committee, it was “part of the
legislative branch.” See id. at 30 n.2, 35.
In yet another opinion, we considered the location of the Native Hawai-
ians Study Commission in order to determine whether the Hatch Act
applied to its chairman. See Applicability of the Hatch Act to the Chair-
man of the Native Hawaiians Study Commission, 6 Op. O.L.C. 292, 294
(1982) (“Native Hawaiians Study Commission”). The commission there
consisted solely of presidential appointees, but it had been initially funded
by Senate appropriations and had been “established to advise Congress
rather than the President.” Id. We recognized that “a commission may
have dual responsibilities—as in this case, advisory to Congress, fact-
finding and reporting to the President—without necessarily losing its
character as an executive entity.” Id. While finding that the structure
presented a “difficult question,” we concluded “that the circumstances
viewed as a whole point[ed] to the Commission as an entity within the
Executive Branch.” Id. at 295.
Finally, on several occasions, this Office has considered the status of
commemorative commissions, which have “representatives of multiple
branches participating in ceremonial events,” but which also must exer-
cise executive authority in the course of administering the events in ques-
tion. Ronald Reagan Commission, 33 Op. O.L.C. at 195. Those commis-
sions have included members from the Legislative and Judicial Branches,

10
 Executive Branch Participation in the Cyberspace Solarium Commission

and in light of “ample historical precedent,” we have accepted that “[i]t is
not unconstitutional for such commissions to perform advisory functions.”
Id. at *2 & n.1. But to the extent that these commissions perform execu-
tive functions—like “exercising operational control over a statutorily
prescribed national commemoration”—then the participation of non-
executive agents must end. Id. at *3.
Thus, in 1984, we advised that the Commission on the Bicentennial of
the Constitution, whose members included the Chief Justice and congres-
sional leaders, should establish an “executive committee composed of all
non-advisory members of the Commission . . . legally responsible for
discharging the purely executive functions of the Commission” to ac-
commodate separation of powers concerns. Appointments to the Commis-
sion on the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 207 (1984)
(“Bicentennial Commission”). In 2010, we took the same course in advis-
ing that the Reagan Centennial Commission—a majority of which com-
prised members of Congress—could carry out the executive functions of
planning and developing commemorative activities to honor President
Reagan only by establishing a separate executive committee consisting
solely of the Executive Branch members of the commission. See Memo-
randum for Robert F. Bauer, Counsel to the President, from Martin S.
Lederman, Deputy Assistant Attorney General, Office of Legal Counsel,
Re: Administration of the Ronald Reagan Centennial Commission at 3–4
(May 7, 2010) (“Lederman Memo”). Following the approach of Bicenten-
nial Commission, 8 Op. O.L.C. at 207, we construed the statute itself as
“limit[ing] the exercise of the purely executive functions of the Commis-
sion to the five presidentially appointed commissioners” who would
constitute the executive committee. Lederman Memo at 3 (internal quota-
tion marks and citation omitted). With this executive committee in place,
we advised that the full commission, with its majority of congressional
appointees, was “limited to giving advice.” Ronald Reagan Commission,
33 Op. O.L.C. at 200. In so doing, we essentially divided the Reagan
Centennial Commission into two entities—one executive (consisting
solely of Executive Branch representatives) and one advisory (consisting
of both Executive Branch and Legislative Branch representatives). We
therefore resolved the separation of powers concerns presented by such a
ceremonial commission by cabining the functions of the full commission
in a manner consistent with its implicit location in the Legislative Branch.
See also Administration of the John F. Kennedy Centennial Commission,

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 44 Op. O.L.C. __ (Oct. 9, 2020)

41 Op. O.L.C. __, at *1 (Jan. 10, 2017) (recommending that the John F.
Kennedy Centennial Commission adopt the same “structure used to carry
out the functions of the Ronald Reagan Centennial Commission”).
Previous practice therefore buttresses our conclusion: Every seemingly
hybrid commission still must be situated in one and only one branch of
our tripartite constitutional structure. 6

B.

We turn then to the Cyberspace Solarium Commission. Generally,
“[t]he status within the government of an office created by statute is a
matter of statutory interpretation.” Railroad Retirement Reform Commis-
sion, 13 Op. O.L.C. at 285. But constitutional constraints prevent Con-
gress from assigning purely executive duties to a legislative entity. See
Buckley, 424 U.S. at 138–39. Because the FY 2019 NDAA did not specify
where the Commission would reside, we consider the statutory context,
the method of appointment of its members, and the powers that it exercis-
es. Here, the relevant statutory indicia suggested that the Commission was
located within the Legislative Branch.

6 See also Statement on Signing the National Defense Authorization Act for Fiscal
Year 2020, 2019 Daily Comp. Pres. Doc. No. 880, at 3 (Dec. 20, 2019) (observing with
respect to a number of provisions that “establish[ed], reauthorize[d] or add[ed] to the
authorities of hybrid commissions or boards,” including the Cyberspace Solarium
Commission, that commissions with Legislative Branch and Executive Branch appoin-
tees “separate from the executive branch” are simply “legislative branch entities”);
Statement on Signing the John S. McCain National Defense Authorization Act for Fiscal
Year 2019, 2018 Daily Comp. Pres. Doc. No. 533, at 2 (Aug. 13, 2018) (“FY 2019
NDAA Signing Statement”) (“While I welcome the creation of this commission, these
legislative branch appointees preclude it, under the separation of powers, from being
located in the executive branch. My Administration accordingly will treat the commis-
sion as an independent entity, separate from the executive branch.”); Statement on
Signing the National Defense Authorization Act for Fiscal Year 2017, 2016 Daily Comp.
Pres. Doc. No. 863, at 3 (Dec. 23, 2016) (“Because the commission contains legislative
branch appointees, it cannot be located in the executive branch consistent with the
separation of powers.”); Statement on Signing the Alyce Spotted Bear and Walter
Soboleff Commission on Native Children Act, 2016 Daily Comp. Pres. Doc. No. 695, at 1
(Oct. 14, 2016) (“While I welcome the creation of this Commission, it cannot be located
in the executive branch consistent with the separation of powers because it includes
legislative branch appointees[.]”).

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 Executive Branch Participation in the Cyberspace Solarium Commission

Multiple factors supported this determination. First, the Commission’s
membership structure suggested that it was located in the Legislative
Branch, because “the majority of the Commissioners were congressionally
appointed,” National Gambling Impact Study Commission, 23 Op. O.L.C.
at 30 n.2; see also FY 2019 NDAA § 1652(b), 132 Stat. at 2141. The
presence of members of Congress on the Commission counseled strongly
against treating it as an Executive Branch entity. See NRA Political Victo-
ry Fund, 6 F.3d at 827 (holding that two congressional agents could not
serve, even as non-voting members, on the eight-member Federal Election
Commission). Members of Congress may neither serve as officers of the
United States, see U.S. Const. art. I, § 6, cl. 2, nor appoint such officers,
see id. art. II, § 2, cl. 2. But even for commissions whose members lack
the authority of officers of the United States—either because the Legisla-
tive Branch appointees perform only advisory roles or the commission
itself lacks significant authority under the laws of the United States—
locating a commission in the Executive Branch if Congress appoints a
majority of the members would raise concerns of congressional aggran-
dizement and the blurring of the separation of powers. See, e.g., Separa-
tion of Powers, 20 Op. O.L.C. at 160 n.95. The fact that members of
Congress appoint a majority of the members of the Commission thus
counseled strongly in favor of the conclusion that it is a Legislative
Branch entity.
Second, the nature of the Commission’s powers supported this conclu-
sion. The Commission’s principal duty was to prepare a report that “de-
fine[d] the core objectives and priorities” of national cyber policy and
“consider[ed] possible structures and authorities that need to be estab-
lished, revised, or augmented within the Federal Government” to defend
the United States from cyber-attacks. FY 2019 NDAA § 1652(f )(1), (7),
132 Stat. at 2142–43. The Commission authored and submitted the report
to Congress without any review from the Executive Branch, other than the
four Executive Branch commissioners, who made up a minority of the
Commission’s fourteen members. Id. § 1652(k)(1), 132 Stat. at 2146. The
procedure for publication and assessment of the Commission’s report also
suggested that the report was prepared “principally for Congress’ bene-
fit,” see Railroad Retirement Reform Commission, 13 Op. O.L.C. at 289.
While the FY 2019 NDAA required submission of the Commission’s final
report to several Executive Branch officials in addition to multiple con-
gressional committees, see FY 2019 NDAA § 1652(k)(1), 132 Stat. at

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 44 Op. O.L.C. __ (Oct. 9, 2020)

2146, the executive officials were provided with the report merely to
facilitate their own further responses to Congress. See id. § 1652(l), 132
Stat. at 2146. Both sets of recommendations—the Commission’s report,
and the analysis of the executive officials required to respond—were
therefore ultimately for Congress’s consideration. And any testimony or
briefing on the Commission’s report was also to be provided to Congress,
see id. § 1652(k)(2)(B), 132 Stat. at 2146, again indicating that its rec-
ommendations were directed toward the Legislative Branch. In this way,
the Commission was designed to “function[] much as a congressional
committee does when conducting an investigation or drafting a legislative
proposal based on the information it has gathered.” National Gambling
Impact Study Commission, 23 Op. O.L.C. at 35.
The Commission exercised no purely executive powers. Indeed, the
Commission was expressly given the subpoena power of an agent of
Congress; the FY 2019 NDAA authorized the Commission to issue sub-
poenas and provided that any actions in contempt of its subpoenas should
be governed by the statutory procedures applicable to contempt of Con-
gress, 2 U.S.C. §§ 192–194. FY 2019 NDAA § 1652(g)(1)(C). We have
previously advised that “[i]f Congress intends [a] Commission to be part
of the Executive Branch,” then we would expect it to exercise the kind of
civil enforcement power given to executive agencies, rather than the
contempt powers of Congress. See Proposed Commission on Deregulation
of International Ocean Shipping, 7 Op. O.L.C. 202, 204 (1983). The
nature of the Commission’s subpoena powers further confirmed that it
was a legislative entity.
Finally, the FY 2019 NDAA exempted the Commission from the Fed-
eral Advisory Committee Act (“FACA”) and Freedom of Information Act
(“FOIA”) requirements that typically apply to Executive Branch advisory
commissions. FY 2019 NDAA § 1652(m), 132 Stat. at 2146. Ordinarily,
“any committee” established by statute “in the interest of obtaining advice
or recommendations for the President or one or more agencies or officers
of the Federal Government” is subject to FACA. 5 U.S.C. app. § 3(2).
FOIA likewise applies to most executive agencies. 5 U.S.C. § 552; id.
§ 551(1). Congress’s choice to exempt the Commission from these re-
quirements, while not dispositive, bore upon the interpretive question.
Notably, in the very same act in which it created the Commission, Con-
gress expressly located another advisory commission “in the executive
branch” without excepting it from FACA and FOIA requirements. FY

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 Executive Branch Participation in the Cyberspace Solarium Commission

2019 NDAA § 1051(a) (National Security Commission on Artificial
Intelligence). That contrast provided an additional indication of the Com-
mission’s location in the Legislative Branch.
For the reasons set forth above, we concluded, and advised, that the
Commission should be viewed as a Legislative Branch entity.

III.

Our conclusion that the Commission was a Legislative Branch entity
had separation of powers implications for the service of its Executive
Branch members. 7 We advised that the Executive Branch officials serving
on the Commission should act with one unified voice, subject to executive
supervision, in advising the Commission. Although robust participation
on a commission through the provision of advice, information, and staff
and office resources is perfectly appropriate when that work promotes
comity and is consistent with the interests of the Executive Branch, we
advised that individual executive members should not participate in
formal acts of the legislative commission, such as individualized voting or
signing the Commission’s final report; that they must preserve Executive
Branch confidentiality interests when advising the Commission; and that
they should comply with commission requests to share Executive Branch
resources, outside of the statutory process, only to the extent that the
provision of resources would be consistent with Executive Branch inter-
ests.

7 The appointment by Congress of executive branch officers to a legislative entity pre-
sents a different constitutional question from when Congress vests the President with the
power to appoint officials to serve on legislative commissions. See, e.g., Removal of
Members of the Commission on Federal Laws for the Northern Mariana Islands, 7 Op.
O.L.C. 95, 102 (1983) (noting that, “[e]ven if we grant that the Commission is an arm of
Congress,” the President could still remove its members at will if Congress chose to vest
appointment power in the President). Here, we addressed the separation of powers
concerns that arose when a statute directed presidential appointees with pre-existing
executive branch ties to serve ex officio in a position within the Legislative Branch. We
did not disturb the long-standing historical practice of the President’s appointing individ-
uals to offices serving the entire Legislative Branch. See, e.g., Constitutionality of Bill
Creating an Office of Congressional Legal Counsel, 1 Op. O.L.C. Supp. 384, 389 (1976);
see also 31 U.S.C. § 703(a)(1) (“The Comptroller General and Deputy Comptroller
General are appointed by the President, by and with the advice and consent of the Sen-
ate.”); 2 U.S.C. § 1801(a)(1) (“The Architect of the Capitol shall be appointed by the
President by and with the advice and consent of the Senate for a term of 10 years.”).

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 44 Op. O.L.C. __ (Oct. 9, 2020)

The Executive Branch officers did not serve on the Commission as
independent actors, but as representatives of one Executive Branch,
which is subject to ultimate supervision by the President. See U.S.
Const. art. II, § 1, cl. 1 (vesting the President with “[t]he executive
Power” (emphasis added)); id. art. II, § 3 (charging the President with
the duty to “take Care that the laws be faithfully executed”); see also,
e.g., Seila Law, 140 S. Ct. at 2197 (“The entire ‘executive Power’ be-
longs to the President alone”); Myers v. United States, 272 U.S. 52, 135
(1926) (highlighting that the President “may properly supervise and
guide” subordinate officers “in order to secure . . . unitary and uniform
execution of the laws”); Printz v. United States, 521 U.S. 898, 922
(1997) (“The insistence of the Framers upon unity in the Federal Execu-
tive—to ensure both vigor and accountability—is well known.”); Clin-
ton v. Jones, 520 U.S. 681, 712 (1997) (Breyer, J., concurring) (“[The
Founders] sought to encourage energetic, vigorous, decisive, and speedy
execution of the laws by placing in the hands of a single, constitutional-
ly indispensable, individual the ultimate authority that, in respect to the
other branches, the Constitution divides among many.”); Direct Report-
ing Requirement, 32 Op. O.L.C. at 31 (“[S]tatutes that interfere with the
President’s ability to supervise, directly or through subordinate offi-
cials, the Executive Branch’s communications with Congress raise
serious constitutional concerns.”). Therefore, in serving on a Legislative
Branch entity, Executive Branch members on the Commission remained
agents of the Executive Branch.
We addressed a somewhat analogous situation in connection with the
detail of Executive Branch law enforcement agents to congressional
committees. There, we observed that when executive officials work for a
congressional committee, “[t]he pertinent issue . . . is whether the Presi-
dent’s ability to supervise his subordinates in the performance of their
executive branch functions is unconstitutionally impaired.” Detail of Law
Enforcement Agents to Congressional Committees, 12 Op. O.L.C. 184,
186 (1988) (“Detail of Law Enforcement Agents”). And we warned that
congressional details potentially place executive officials “in the difficult
position of serving two masters with conflicting interests—the legislative
and executive branches.” Id. at 184. To counteract these concerns, we
advised that the Executive Branch members on detail could perform “only
non-law enforcement, advisory functions,” and even while performing
those functions, they should “faithfully defend the interests of the execu-

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 Executive Branch Participation in the Cyberspace Solarium Commission

tive branch” and preserve the confidentiality of Executive Branch infor-
mation. See id. at 187–88.
So too here. In practice, the principle that Executive Branch officials
must advance Executive Branch interests limited their participation in the
Commission’s work in several ways. First, the Executive Branch officials
charged with assessing the Commission’s final report were advised do so
collectively, or at least in coordination with each other, rather than
providing independent assessments in their separate capacities. And
because members of the Commission were expected to cast their votes
individually, we advised that the Executive Branch members should not
vote on the final report or on commission decisions to issue subpoenas in
the Commission’s investigative capacity. Although the Executive Branch
members could theoretically have adopted and advanced common posi-
tions with respect to matters on which they were expected to vote, the
need for the Commission to release its report promptly made it impracti-
cable for them to engage in the kinds of consultations necessary to do so.
This limitation, however, did not necessarily preclude Executive
Branch members from robust participation in the formulation of the
report. Just as Executive Branch officials may perform “advisory or
research” functions while on detail to a congressional committee, Detail
of Law Enforcement Agents, 12 Op. O.L.C. at 186, they could advise and
provide information, expertise, and substantial resources to the Commis-
sion. But such input had to be consistent with the Executive Branch’s
understanding of its own interests. And any contributions to, and assess-
ments of, the Commission’s report had to be subject to the supervision of
others in the Executive Branch. Cf. Separation of Powers, 20 Op. O.L.C.
at 174–75 (objecting to requirements that reports be simultaneously
submitted to the Executive and Legislative Branches, because such re-
quirements “increase congressional leverage on the President and other
officials of the executive branch” and thus potentially “interfer[e] with the
President’s fulfillment of his obligations under the Take Care Clause”).
We therefore advised that the Executive Branch members could serve an
advisory role and articulate a uniform position on the Commission’s
work, but they should not formally vote or sign the legislative commis-
sion’s final report. We further advised that the Executive Branch officers
assigned the statutory role of providing assessments of the Commission’s
report to Congress, see FY 2019 NDAA § 1652(l), 132 Stat. at 2146, did
not act in their individual capacities, but rather remained subject to the

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 44 Op. O.L.C. __ (Oct. 9, 2020)

ordinary mechanisms by which the President supervises and coordinates
the position of the Executive Branch.
In addition, we advised that all Executive Branch members and staff
should maintain the confidentiality of Executive Branch information when
sharing their information and expertise with the Commission. Executive
agencies should treat a legislative commission’s requests for confidential
Executive Branch information in the same way that the Executive Branch
generally responds to requests for information from Congress. Like a
congressional committee, the Commission was empowered to obtain the
information necessary for its work through hearings, voluntary requests,
and subpoenas. See id. § 1652(g)(1)(A)–(C), 132 Stat. at 2143. Executive
agencies should similarly seek to accommodate legitimate requests con-
sistent with the established accommodation process. See, e.g., Am. Tel. &
Tel. Co., 567 F.2d at 127 (requiring each branch to “seek optimal accom-
modation through a realistic evaluation of [their respective] needs . . . in
the particular fact situation”); Attempted Exclusion of Agency Counsel
from Congressional Depositions, 43 Op. O.L.C. __, at *19 (May 23,
2019) (describing “the constitutional balance” of providing Congress with
information essential to oversight while preserving Executive Branch
constitutional prerogatives); Authority of the Department of Health and
Human Services to Pay for Private Counsel to Represent an Employee
Before Congressional Committees, 41 Op. O.L.C. __, at *5 n.6 (Jan. 18,
2017); Congressional Requests for Confidential Executive Branch Infor-
mation, 13 Op. O.L.C. 153, 159 (1989); see also Trump v. Mazars USA,
LLP, 140 S. Ct. 2019, 2031 (2020) (referring to this practice with approv-
al and noting ruefully that “Congress and the President [had] maintained
this tradition of negotiation and compromise—without the involvement of
this Court—until the present dispute”). And while the Commission may
have had a legitimate need to obtain classified or sensitive national securi-
ty information for its work, its requests needed to be measured like any
other Legislative Branch request for sensitive information, and they
remained subject to the President’s ultimate control over such infor-
mation. See, e.g., Dep’t of the Navy v. Egan, 484 U.S. 518, 527 (1988).
Finally, Executive Branch entities were advised that they should treat
the FY 2019 NDAA’s provisions requiring them to provide administrative
assistance to the Commission (in the form of resources such as office
space, computer facilities, and staff ) as discretionary. Congress, of
course, may appropriate funds to itself for the performance of its duties

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and the support of its agents. The anti-aggrandizement principle of the
separation of powers, however, prohibits a congressional body from using
any means other than the enactment of legislation to order the Executive
Branch to execute legislation. See Bowsher, 478 U.S. at 733 (“[O]nce
Congress makes it choice in enacting legislation, its participation ends.”).
As a Legislative Branch entity, the Commission could not be given the
power to compel Executive Branch departments to provide office space,
administrative support, and supplies on a nonreimbursable basis, see FY
2019 NDAA § 1652(g)(4), 132 Stat. at 2144. 8 See, e.g., Letter for Heidi
Heitkamp & Lisa Murkowski, U.S. Senate, from Stephen E. Boyd, Assis-
tant Attorney General, Office of Legislative Affairs, Re: Implementation
of the Alyce Spotted Bear and Walter Soboleff Commission on Native
Children at 2 (Aug. 10, 2018) (“In order to avoid a constitutional issue,
the Department will treat as permissive the directives to provide adminis-
trative support and detailees[.]”). Accordingly, we advised that the Execu-
tive Branch should provide the Commission with Executive Branch re-
sources—such as office space, access to computer networks, and e-mail
addresses—only if it concluded that providing access to a resource would
sufficiently advance Executive Branch interests to outweigh any potential
risks from the resulting commingling of executive and legislative re-
sources.
More specifically, we advised that the sharing of Executive Branch
computer networks or the use of Executive Branch e-mail addresses to
conduct commission business should be done in a manner that would not

8 Several of the FY 2019 NDAA provisions providing for commission support used

the mandatory “shall,” rather than the discretionary “may.” See, e.g., FY 2019 NDAA
§ 1652(g)(3)(B), 132 Stat. at 2144 (providing that executive entities “shall, to the extent
authorized by law, furnish” information to the Commission (emphasis added)); id.
§ 1652(g)(4)(A), 132 Stat. at 2144 (“The Secretary of Defense shall provide to the
commission, on a nonreimbursable basis, such administrative services, funds, staff,
facilities, and other support services as are necessary for the performance of the Commis-
sion’s duties[.]” (emphases added)); id. § 1652(g)(4)(D), 132 Stat. at 2144 (“The Com-
mission shall receive the full and timely cooperation of any official, department, or
agency of the United States Government whose assistance is necessary, as jointly deter-
mined by the [Commission] co-chairs[.]” (emphases added)). But these provisions none-
theless authorized officials to exercise some judgment in determining whether certain
resources would be made available, based on an analysis of whether the support was
“necessary” or “authorized by law.” To the extent that those provisions denied such
discretion, they were required to yield to constitutional separation of powers principles.

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 44 Op. O.L.C. __ (Oct. 9, 2020)

suggest an Executive Branch imprimatur. And if administrative assistance
was to take the form of detailing personnel to the Commission, executive
agencies were encouraged to consider whether the Executive Branch
benefits to be gained by the personnel’s service to the Commission would
be sufficiently significant to outweigh any potential confidentiality or
accountability considerations raised by their service to a legislative entity.
See Detail of Law Enforcement Agents, 12 Op. O.L.C. at 185 (providing
that, in detailing law enforcement agents to congressional committees on
a voluntary basis, the Department should consider “whether the benefits
to be gained by the law enforcement agencies are sufficiently extraordi-
nary to outweigh the separation of powers and ethical concerns raised by
the detail”).

IV.

For the reasons set forth above, we concluded that the Commission had
to be located within one branch of the tripartite federal constitutional
structure. In addition, we advised that the statutory structure and context
indicated that the Commission was most appropriately viewed as a Legis-
lative Branch entity. Accordingly, as a constitutional matter, the Execu-
tive Branch members of the Commission were limited in the ways they
could participate in the Commission’s work; they were required to per-
form their commission responsibilities as Executive Branch representa-
tives, consistent with the Executive Branch’s confidentiality and policy
interests.

STEVEN A. ENGEL
Assistant Attorney General
Office of Legal Counsel

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