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TITLE 28, UNITED STATES CODE

8501. Executive department.

The Department of Justice is an executive department of the United States at the seat of Government. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 611.)

§ 502. Seal.

The Attorney General shall have a seal for the Department of Justice. The design of the seal is subject to the approval of the President. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 611.)

§ 503. Attorney General.

The President shall appoint, by and with the advice and consent of the Senate, an Attorney General of the United States. The Attorney General is the head of the Department of Justice. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 612.)

§ 504. Deputy Attorney General.

The President may appoint, by and with the advice and consent of the Senate, a Deputy Attorney General. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 612.)

§ 505. Solicitor General.

The President shall appoint in the Department of Justice, by and with the advice and consent of the Senate, a Solicitor General, learned in the law, to assist the Attorney General in the performance of his duties. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 612.)

§ 506. Assistant Attorneys General.

The President shall appoint, by and with the advice and consent of the Senate, nine Assistant Attorneys General, who shall assist the Attorney General in the performance of his duties. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 612.)

§ 507. Assistant Attorney General for Administration.

(a) The Attorney General shall appoint, with the approval of the President, an Assistant Attorney General for Administration, who shall perform such duties as the Attorney General may prescribe.

(b) The position of Assistant Attorney General for Administration is in the competitive service. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 612.)

§ 508. Vacancies.

(a) In case of a vacancy in the office of Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office, and for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.

(b) When, by reason of absence, disability, or vacancy in office, neither the Attorney General nor the Deputy Attorney General is available to exercise the duties of the office of Attorney General, the Assistant Attorneys General and the Solicitor General, in such order of succession as the Attorney General may from time to time prescribe, shall act as Attorney General. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 612.)

§ 509. Functions of the Attorney General.

All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General except the functions—

(1) vested by subchapter II of chapter 5 of title 5 in hearing examiners employed by the Department of Justice;

(2) of the Federal Prison Industries, Inc.;

(3) of the Board of Directors and officers of the Federal Prison Industries, Inc. and

(4) of the Board of Parole.

(Added Pub. L. 89-554, § 4 (c), Sept. 6, 1966, 80 Stat. 612.)

§ 510. Delegation of authority.

The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any officer, employee, or agency of the Department of Justice of any function of the Attorney General. (Added Pub. L. 89-544, § 4(c), Sept. 6, 1966, 80 Stat. 612.)

§ 532. Director of the Federal Bureau of Investigation.

The Attorney General may appoint a Director of the Federal Bureau of Investigation. The Director of the Federal Bureau of Investigation is the head of the Federal Bureau of Investigation. (Added Pub. L. 89-544, § 4(c), Sept. 6, 1966, 80 Stat. 616.)

§ 541. United States attorneys.

(a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.

(b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies. (c) Each United States attorney is subject to removal by the President. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 617.)

§ 546. Vacancies.

The district court for a district in which the office of United States attorney is vacant may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court. (Added Pub. L. 89-544, § 4(c), Sept. 6, 1966, 80 Stat. 618.)

§ 561. United States marshals.

(a) The President shall appoint, by and with the advice and consent of the Senate, a United States marshal for each judicial district.

(b) Each marshal shall be appointed for a term of four years. On expiration of his term, a marshal shall continue to perform the duties of his office until his successor is appointed and qualifies, unless sooner removed by the President.

(c) The Attorney General shall designate places within the district for the official station and offices of each marshal. Each marshal shall reside within the district for which he was appointed, except that the marshal for the District of Columbia and the Southern District of New York may reside within 20 miles thereof. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 619.)

§ 565. Vacancies.

The district court for a district in which the office of United States marshal is vacant may appoint a United States marshal to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court. (Added Pub. L. 89-554, § 4(c), Sept. 6, 1966, 80 Stat. 620.)

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STATEMENTS SUBMITTED FOR THE RECORD

THE DEPARTMENT OF JUSTICE AS AN INDEPENDENT ESTABLISHMENT (Report of the Comittee on Federal Legislation of the Association of the Bar of the City of New York, on S. 2803)

Yet another reverberation of the Watergate scandals has materialized in the form of S. 2803, sponsored by Senator Ervin, a bill designed to remove the Department of Justice from the Executive Branch and reconstitute it as an "independent establishment of the United States."

In examining the constitutionality and desirability of the proposed legislation, we have necessarily reviewed it from the perspective of the functions which the new Department of Justice would assume under the terms of its creation, and in light of the premise that the crucial functions of law enforcement in a democratic society should be performed in an even-handed, responsible manner, free of partisan political influence. We have concluded (1) that the transfer of many of the functions of the present Department of Justice to an independent agency would likely withstand constitutional challenge (although we believe the transfer of certain of its functions would not); but (2) that, for reasons of sound public policy, the wholesale transfer of functions proposed by S. 2803 is not the answer.

I. THE BILL

The proposed legislation, after making preliminary recitals intended to stress the judicial aspects of the Department's appointed role, creates a new Department of Justice as an "independent establishment." The Attorney General, Deputy Attorney General and Solicitor General are to be appointed by the President, with the advice and consent of the Senate, for respective six-year terms. Most significantly, these officers are not tenured at the pleasure of the President, but may only "be removed by the President for neglect of duty or malfeasance in office."

The bill empowers the Attorney General to appoint a Director of the F.B.I. to a four-year term, while Assistant Attorneys General, United States Attorneys and United States Marshals are to be appointed by the Attorney General for no stated term. All are answerable to, and removable by, the Attorney General. These appointments are presently made by the President with the advice and consent of the Senate, and all of these subordinate officials are subject to removal by the President under the doctrine of Myers v. United States.1

The remainder of the bill deals largely with filling out the legislative scheme and conforming existing legislation to it.

II. THE CONSTITUTIONAL QUESTION

Among the various areas of constitutional doctrine which may fairly be characterized as murky, it is safe to say that in any ranking the constitutional issues operative here would place high. For here the legislative powers vested in the Congress under Article I of the Constitution challenge the executive powers vested in the President under Article II, on substantially virgin ground.2

The Supreme Court has said that the chief law enforcement officer of the federal government is "the hand of the President in taking care that the laws of the United States in protection of the interests of the United States in legal proceedings and the prosecution of offenses be faithfully executed." This derives from the President's constitutional duty "to take care that the laws be faithfully executed." On the other hand, the Executive is not the sole

Footnotes at end of article.

(298)

repository of law enforcement power; rather such power resides both in the Executive and the Judiciary.

Indeed, according to Mr. Justice Holmes' dissent in Myers, "The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power." While the majority in Myers suggested otherwise, the Holmes approach appears to have since attracted judicial adherence." While the Holmes statement should not, of course, be taken unduly literally-it should not, for example, support legislation expressly denying the President a role in seeing to the execution of the laws-it nonetheless emphasizes the key congressional role in determining the scope of presidential power in this regard.

A careful analysis of underlying constitutional doctrine, viewed in the light of the above authorities, leads us to conclude that the Constitution does not place beyond the reach of Congress the power to create an independent Department of Justice, performing many of the functions of the present Department. As Henry Clay stated:

"It is the legislative authority which creates the office, defines its duties, and may prescribe its duration. I speak, of course, of offices not created by the constitution, but the law. The office, coming into existence by the will of Congress, the same will may provide how, and in what manner, the office and the officer shall both cease to exist. It may direct the conditions on which he shall hold the office, and when and how he shall be dismissed." 7

While the President has the sole constitutional power to appoint the principal officers of the United States (with the advice and consent of the Senate), Article II provides that this power becomes activated, with the exception of the few offices created by the Constitution, only when the position is "established by law." Congress has, on numerous occasions going back the better part of a century, established agencies free of Executive control to enforce specific legislation, where it found a need to keep agency functions free of the exclusive control of any of the three traditional branches of government. This exercise of congressional power has long been sustained by the courts.8 Certain functions of Executive agencies are, undoubtedly, exclusively Executive by virtue of having been expressly delegated to the President by the Constitution; but these are few in number, revolve largely about the field of foreign affairs, and are subject at least at their periphery to congressional power. Thus, for example, while the constitutional authority of the President to represent the nation abroad may not be the subject of congressional tampering, the functions conferred on the Department of State as a vehicle for carrying out the power to conduct foreign relations remain subject to the will of Congress. Beyond the President's few express constitutional powers, the President must rely wholly upon authority by implication under Article II of the Constitution and, for the bulk of his present-day legal authority, upon powers delegated by Congress in legislation.

9

Recent congressional action, viewed from the perspective of the Myers case, is instructive of congressional power in the premises. In Myers, the Supreme Court ruled that Congress had created the Post Office Department as a purely Executive organ and, having done so, could not constitutionally restrict the President's authority to remove from office a postmaster-a position created by Congress as a wholly Executive one. But while Myers barred the Congress from limiting the President's power to remove a member of the Executive establishment, it did not limit the authority of Congress to alter the relationship between the Post Office Department and the Executive and, incident thereto, to limit the President's authority to remove appointed postal officials. The Congress, in fact has recently eliminated the Post Office as a purely Executive department and reconstituted it as an "independent establishment of the executive branch," and in so doing, the Congress has restricted the President's power to remove appointees.10 As in the case of S. 2803, Congress asserted that this separation was essential to the public interest (there. primarily the efficient operation of the agency), and would serve "to seal off the Postal Service from partisan political influence.'

99 11

Mr. Justice Jackson's lucid exposition in the Steel Seizure Case of the essential elasticity of presidential power in its interplay with the powers of Congress places in perspective the factors necessary for a consideration of the constitutionality of S. 2803. There, he stated:

Footnotes at end of article.

"The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed power into a workable government. It enjoins upon its branches separateness but independence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat oversimplified grouping of practical situations in which a President may doubt, or other may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

"1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it. "2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

99 12

In relation to the reorganization of the Department of Justice as proposed in S. 2803, the President's power "is at its lowest ebb" for, to declare such an enactment unconstitutional would require a finding of Executive power under the Constitution and a lack of congressional power in the premises. As applied in the present context, Mr. Justice Jackson's analysis dictates the need for careful functional review of the Department of Justice to assess the relationship of presidential and congressional power. If congressional power to create federal offices-a power delegated exclusively to Congress by the Constitution-is to be circumscribed, the limitation must derive from an unspecified inherent power of the Presidency contained in Article II. To ascertain where the ultimate power lies, inquiry into the history of the Department of Justice and its functions is helpful, particularly since the constitutional debates shed little light on the subject.

The scope of authority exercised by the Department today bears almost no relationship to the role of the Attorney General as envisioned by the Founding Fathers. In fact, the Department as such did not come into being until 1870.

The Judiciary Act of 1789 established the office of Attorney General, the holder of which was to be "a meet person, learned in the law," appointed by the President with the advice and consent of the Senate, and having the responsibility to prosecute and conduct proceedings in the Supreme Court in which the United States was concerned and to advise the President and department heads on question of law.13 The duties were part-time, the Attorney General had neither office nor staff, his compensation was meager and he was permitted (indeed, encouraged) to practice law privately. By 1792, he had become a member of the President's Cabinet.14

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