Constitutionality of Bill Creating an Office of Congressional Legal Counsel

Constitutionality of Bill Creating an Office
of Congressional Legal Counsel
Congressional officers representing the combined power of both houses of Congress—in contrast to
officers of either house—who perform significant governmental duties must be appointed as
provided in the Appointments Clause of the Constitution.
The authority to bring a civil action requiring an officer or employee of the Executive Branch to act in
accordance with the Constitution and laws of the United States is an exclusive executive function
that must be exercised by an executive officer who must be appointed as provided for in the Ap-
pointments Clause and be subject to the President’s unlimited removal power.

February 13, 1976

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL
CIVIL DIVISION

This is in response to your memorandum of January 12, 1976, in which you ask
for information designed to assist you in complying with a request of the Sub-
committee on Separation of Powers of the Senate Judiciary Committee for
“Materials to be Submitted for the Record” in connection with your recent
testimony before that Subcommittee. The two topics assigned to us are:

I.

Statements Submitted to Congress in Which the
Department of Justice Opposed Congressional Attempts
to Provide for a Counsel of Its Own

Since the Office of Legislative Affairs is the clearing house for reports submit-
ted to Congress, we checked with that Office in order to answer this question. The
Office of Legislative Affairs advised us that there have been only two instances in
which statements relating to congressional attempts to provide for a counsel of its
own were submitted to the Congress by the Department of Justice. They were your
own statement of December 12, 1975, before the Senate Judiciary Committee, of
which you, of course, are aware (Representation of Congress and Congressional
Interests in Court: Hearings Before the Subcomm. on Separation of Powers of the
S. Comm. on the Judiciary, 94th Cong. 4 (1976) (testimony of Rex. E. Lee,
Assistant Attorney General, Civil Division)), and Assistant Attorney General
Uhlmann’s testimony of December 3, 1975, before the Senate Committee on
Government Operations on S. 495, on pages 15–21 of the prepared text (Wa-
tergate Reorganization and Reform Act of 1975: Hearings on S. 495 and S. 2036
Before the S. Comm. on Government Operations, 94th Cong. pt. 2, at 15–21
(1976)).

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This Office is not aware of any other instances in which the Department sub-
mitted to Congress any statements pertinent to this issue.
For your information, I may point out that this problem came up in connection
with S. 1384, 90th Cong. (as introduced Mar. 23, 1967) (“To establish the Office
of Legislative Attorney General”). The comments prepared in this Office,
however, were not submitted to Congress. The late Professor Bickel, however,
commented adversely on the proposal. Separation of Powers: Hearings Before the
Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 90th Cong.,
pt. 1, at 248–50 (1967).

II.

Comments on the Constitutionality of S. 2731,
94th Cong., 1st Sess.

This rather complex bill would establish the Office of the Congressional Legal
Counsel as an office of the Congress. S. 2731, 94th Cong. § 4(a)(1) (as introduced
Dec. 2, 1975)). The Congressional Legal Counsel would be appointed jointly by
the President pro tempore of the Senate and the Speaker of the House of Repre-
sentatives, subject to approval by a concurrent resolution of the Senate and the
House of Representatives. Id. The appointment would be for a term which would
expire at the end of the Congress following the Congress in which the Congres-
sional Legal Counsel was appointed; he could be removed by concurrent resolu-
tion for misconduct, incapacity, or incompetence. Id. § 4(a)(2).
Sections 5 and 6 would provide that the Congressional Legal Counsel shall
prosecute and defend certain civil litigation in which Congress has an interest.
Briefly those actions fall into the following categories:

(a) Defense of either house or of congressional agencies, members,
officers, or employees in any civil action in which such house, etc.,
is a party defendant in which there is placed in issue the validity of

(i) any proceeding of, or action taken, including any subpoena or
order issued, by such house, joint committee, subcommittee,
member, officer, employee, office, or agency; or

(ii) any subpoena directed to such house, joint committee, com-
mittee, subcommittee, member, officer, employee, office, or
agency (id. §§ 5(a)(1), 6(2)).

(b) Prosecution of civil actions on behalf of Congress, etc.,

(i) to secure a declaratory judgment concerning the validity of any
subpoena directed to, or subpoena or order issued by, Congress,

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or such house, joint committee, committee, subcommittee, mem-
ber, officer, employee, office, or agency (id. §§ 5(a)(2)(B); 6(1));
or

(ii) to require an officer or employee of the executive branch of
the Government to act in accordance with the Constitution and
laws of the United States (id. § 5(a)(2)(A)).

Under section 7(a), the Congressional Legal Counsel would make recommen-
dations as to whether a civil action requiring an officer or employee of the
Executive Branch to act in accordance with the Constitution and laws of the
United States should be brought.
Section 8(a) would provide for the intervention or appearance as amicus curiae
by the Congressional Legal Counsel in any legal action in which

(1) the constitutionality of any law of the United States is challenged
and the United States is a party to such action, or a Member, officer,
or employee of Congress does not consent to representation by the
Congressional Legal Counsel under section 5 of this Act; and

(2) the powers and responsibilities of Congress under article I of the
Constitution of the United States are placed in issue.

Section 9 would confer on the Congressional Legal Counsel certain advisory
and consultative functions.
Section 10 would implement the responsibilities of the Congressional Legal
Counsel under the preceding sections. Sections 11 and 12 deal with internal
procedural matters.
Section 13 would provide for the supersedure of the Attorney General by the
Congressional Legal Counsel if the latter undertakes any representational service.
We assume that this provision is not intended to apply to proceedings under
section 5(a)(2)(A), i.e., where the Congressional Legal Counsel institutes a civil
action to require a officer of the Executive Branch “to act in accordance with the
Constitution and laws of the United States.” The remainder of the bill contains
provisions mainly of a procedural nature. Section 15(f), however, would put on a
permanent general basis Public Law 93-190, 87 Stat. 736 (1973), which authorized
the Senate Select Committee on Presidential Campaign Activities to enforce its
subpoenas or orders in judicial proceedings.
It may be briefly mentioned that the reference to section 6 or 7 on page 18, line
10 of the bill should probably be section 5 or 6.
In commenting on the constitutionality of the bill it must be recognized, first,
that the bill represents a conscious effort to obviate certain constitutional obstacles
inherent in other bills providing for a Congressional Legal Counsel by limiting his
activities to the fields of civil litigation and the giving of advice and the making of

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recommendations. And, second, that the pertinent law has been substantially
clarified by the decision in Buckley v. Valeo, 424 U.S. 1 (1976), which was ren-
dered after the introduction of the bill.
Provisions for a congressional officer charged on a permanent basis with the
function of representing Congress, its agencies, members and employees in
judicial proceedings, raise two questions: (a) whether the appointment of a joint
congressional officer performing only legislative functions must comply with
Article II, Section 2, Clause 2 of the Constitution, and (b) whether, assuming that
the answer to (a) is no, the functions of the counsel envisaged in the bill are
sufficiently of an executive nature to require his appointment pursuant to Arti-
cle II, Section 2, Clause 2 for that reason. Further serious problems are raised by
section 5(a)(2)(A) which would confer upon the Congressional Legal Counsel the
power to bring a civil action against an executive officer in order to require him
“to act in accordance with the Constitution and the laws of the United States.”
1. Article II, Section 2, Clause 2 of the Constitution provides that the President

shall nominate, and by and with the Advice and Consent of the Sen-
ate, shall appoint . . . all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall
be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Depart-
ments.

It will be noted that this constitutional provision is not limited to executive
officers. Judicial officers are appointed pursuant to it, and, as will be presently
shown, also a number of important congressional officers.
United States v. Hartwell defines an office as a public station or employment
which “embraces the ideas of tenure, duration, emolument, and duties,” to
distinguish it from relationships of a purely occasional or contractual nature.
73 U.S. (6 Wall.) 385, 393 (1867). The elements of tenure, duration, emoluments,
and duties relating to the office of the Congressional Legal Counsel are spelled out
in detail in the bill, as has been shown above.1
In United States v. Germaine, the Court held:

That all persons who can be said to hold an office under the govern-
ment about to be established under the Constitution were intended to
be inclined within one or the other of these modes of appointment
there can be but little doubt.

1
Since the definition of office includes the elements of duration and tenure, the subsequent discus-
sion is not concerned with the representation of Congress, etc., by counsel retained on a case by case
basis in the rare situations in which the Executive Branch is unable to represent it.

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99 U.S. 508, 510 (1878).
And most recently the Court amplified on this in Buckley v. Valeo:

We think its fair import is that any appointee exercising significant
authority pursuant to the laws of the United States is an “Officer of
the United States,” and must, therefore, be appointed in the manner
prescribed by § 2, cl. 2, of that Article.

424 U.S at 126.
The functions to be conferred on the Congressional Legal Counsel clearly vest
in him significant authority under the laws of the United States; they are not
limited to an internal advisory nature. The provisions for his appointment therefore
are unconstitutional unless the Constitution “otherwise provides” for his appoint-
ment. In our view there is no such alternative provision for his appointment.
Article I, Sections 2 and 3 of the Constitution provide that the House of Repre-
sentatives and the Senate choose their respective officers. There is, however, no
provision in the Constitution “otherwise providing” for the appointment of officers
serving Congress as such rather than its components.
Buckley v. Valeo demonstrates that the failure of the Constitution to authorize
Congress to appoint officers who are not officers of the respective houses but of
Congress as a whole was no oversight. 424 U.S. at 124–31. This conclusion is
supported by the consideration that the Constitutional Convention deliberately
split the Legislative Branch into two houses lest it overwhelm the other two
branches of the government. As James Madison stated in The Federalist No. 51:

In republican government, the legislative authority necessarily pre-
dominates. The remedy for this inconveniency is to divide the legis-
lature into different branches; and to render them, by different modes
of election and different principles of action, as little connected with
each other as the nature of their common functions and their com-
mon dependence on the society will admit. . . . [T]he weight of the
legislative authority requires that it should be thus divided . . . .

Id. at 322 (Clinton Rossiter ed., 1961) (emphasis added). John Adams’ three vol-
umes in the Defence of the Constitutions of Government of the United States of
America (1794), based on a formidable amount of historical research, were com-
piled in order to establish the proposition that, in order to be viable, a republican
form of government must be based not only on the principle of the separation of
powers but also on that of bicameralism. Hence, it must be concluded that the
Constitutional Convention deliberately denied Congress the power to appoint joint
congressional officers, in order to hold “connections” between the two Houses of
Congress to a minimum. Such officers, therefore, like all other officers of the Uni-
ted States, have to be appointed pursuant to Article II, Section 2 of the Constitu-
tion.

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Legislative precedent supports this conclusion. The principal joint congression-
al officers have been traditionally appointed in this manner: the Comptroller
General (31 U.S.C. § 42 (Supp. III 1973)); the Librarian of Congress (2 U.S.C.
§ 136 (Supp. III 1973)); and the Public Printer (44 U.S.C. § 301 (Supp. III 1973))
are appointed by the President by and with the advice and consent of the Senate;
the Architect of the Capitol is appointed by the President alone (40 U.S.C. § 162
(1970)). Significantly, the legislative counsel appointed by the President pro
tempore of the Senate and by the Speaker of the House of Representatives,
respectively (2 U.S.C. § 272 (1970)), are officers of the house to which they have
been appointed and not officers of Congress at large (2 U.S.C. §§ 271, 281
(1970)).
This is not to say that there may not be some congressional officials—such as
joint committee staffs—who are not appointed pursuant to Article II, Section 2,
Clause 2. But their functions are purely internal and advisory; they do not carry
out any significant authority outside the limits of the Capitol.
It is therefore concluded that congressional officers—in contrast to officers of
either house—who perform significant governmental duties must be appointed as
provided in Article II, Section 2 of the Constitution. In other words, if Congress
provides for an officer representing the combined power of both houses of
Congress, it must pay the price by giving the President the authority of selection.
2. This portion of the discussion is based on the assumption arguendo that
congressional officers, even if they do perform significant governmental functions,
need not be appointed according to the procedures set forth in Article II, Section 2,
Clause 2 of the Constitution provided their functions are not of an executive or
administrative nature.
The principal pertinent functions of the Congressional Legal Counsel would lie
in the field of litigation. The kind of proceedings in which he would be involved
fall into three categories:

i. Generally, to defend Congress, its agencies, members and employ-
ees in cases involving the validity of congressional action, congres-
sional subpoenas, or orders issued by or directed against Congress.

ii. To bring civil actions for declaratory relief concerning the validity
of a subpoena issued by or directed against Congress or to enforce
any congressional subpoena or order.

iii. To bring civil actions requiring an officer or employee of the Ex-
ecutive Branch to act in accordance with the Constitution and laws
of the United States.

The last category quite obviously and uncontrovertibly involves an exclusively
executive function. To require an officer to act in accordance with the Constitution

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and laws of the United States is nothing but a paraphrase of the constitutional text
to “take Care that the Laws be faithfully executed.” That responsibility is vested,
pursuant to Article II, Section 3 of the Constitution, in the President and not in
Congress. An officer whose duty it is to compel action in accordance with the
requirements of the Constitution and laws of the United States, therefore, is an
executive officer who must be appointed as provided for in Article II, Section 2,
Clause 2 of the Constitution and be subject to the President’s unlimited removal
power. Buckley v. Valeo, 424 U.S. at 134–41.
In view of this recent pertinent ruling in Buckley v. Valeo, we do not consider it
necessary to discuss here the alternative consideration whether Congress or a
member has standing in court to require an officer to act in accordance with the
Constitution and laws of the United States. We merely refer to the recent holding
of the U.S. Court of Appeals for the Fourth Circuit in Harrington v. Schlesinger,
decided on October 8, 1975:

A legislator may sue to prevent dilution of his voting power in the
legislature. In Kennedy v. Sampson, D.C. Cir., 511 F.2d 430
[(1974)], the Court decided that a Senator had standing to challenge
a President’s “pocket veto” of a bill for which he had voted. The
Senator was challenging the diminution of his voting power in the
legislative process. By analogy, the four congressmen in this action
claim that they have an interest in ensuring enforcement of laws for
which they voted. Once a bill has become law, however, their inter-
est is indistinguishable from that of any other citizen. They cannot
claim dilution of their legislative voting power because the legisla-
tion they favored became law.

....

. . . The plaintiffs’ status as congressmen does not give them
standing to sue for a declaration that Executive activities are illegal.
The congressmen’s interest seems little different from that of any cit-
izen who might find a court’s advice useful in casting his votes in
presidential or congressional elections. In both instances the interest
is too generalized to provide a basis for standing.

....

While we hold that none of the plaintiffs has standing to seek a
judicial resolution of the controversy, they are not without a remedy,
for the controversy is subject to legislative resolution. If there is a
difference between a majority of the members of both houses of
Congress and the President as to the interpretation and application of
the statutes, the Congress has the resources through its committees to

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ascertain the facts. With the facts before it, it may tighten the statuto-
ry restrictions, if that be the congressional will. The fact that the
Congress has done nothing suggests that the Executive’s interpreta-
tion of the statutes is in agreement with the congressional intent, but
that is an issue in this case which we do not reach.

528 F.2d 455, 459 (4th Cir. 1975) (footnote omitted).
In other words, while a congressman may have standing to determine whether
or not legislation which had passed both Houses of Congress has become law
(Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974)),* once a statute has been
approved by the President, the congressional power over it becomes functus
officio. See Cong. Globe, 39th Cong., 1st Sess. 186 (Jan. 11, 1866) (statement of
Sen. Davis). In this connection it should be remembered that “standing to sue” is a
constitutional requirement flowing from the limitation of the jurisdiction of the
federal courts to cases and controversies in Article III, Section 2, Clause 1 of the
Constitution. It therefore cannot be waived by statute, which is apparently what
section 14(a) of the bill seeks to accomplish.
Portions of the litigating functions conferred upon the Congressional Legal
Counsel in categories (i) and (ii) described above—notably the defense of actions
against individual congressmen with respect to the performance of their legislative
functions, and the defense or prosecution of suits relating to congressional
subpoenas—are less exclusively executive in nature; it is our view, however, that
the lodging of any of them in a non-executive officer is subject to serious constitu-
tional doubt. Litigation is basically an executive function. This conclusion is
supported by section 14(c) of the bill, which would vest in the Congressional
Legal Counsel the powers conferred by law upon the Attorney General, which
powers, of course, are of a preeminently executive nature. It is also significant that
the responsibility of defending congressional officers has been vested in the
Attorney General for more than a century. See 2 U.S.C. § 118 (1970) (derived
from Act of Mar. 3, 1875, ch. 130, § 8, 18 Stat. 371, 401). The Supreme Court
suggested in Buckley v. Valeo that legislative power may come to an end at the
courtroom door: “[The] discretionary power to seek judicial relief . . . cannot
possibly be regarded as merely in aid of the legislative function of Congress.” 424
U.S. at 138. Kennedy v. Sampson is of course not in point, since that involved the
standing of individual members of Congress rather than the power of the Con-
gress, as an institution, to represent individual members, or the Congress itself, in
litigation.

*
Editor’s Note: In Chenoweth v. Clinton, 181 F.3d 112, 115–17 (D.C. Cir. 1999), the Court of
Appeals expressed doubt about the continuing viability of Kennedy v. Sampson in light of Raines v.
Byrd, 521 U.S. 811 (1997).

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The preceding discussion encompasses the constitutional objections to the bill
which appear to us to be the most serious ones. While we realize that there are
others lurking in it, space and time preclude us from dealing with all of them.
For the above reasons, it is our conclusion that the bill is subject to substantial
constitutional infirmities.

ANTONIN SCALIA
Assistant Attorney General
Office of Legal Counsel

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