the President may claim executive privilege, instructing him, for instance, to challenge claims of executive privilege, such an officer might very well have as much independence as could in effect be wished. Congress may designate officers in place to perform additional duties without requiring their reappointment or any further action by the President. Shoemaker v. United States, 147 U.S. 282 (1893). Proceeding this way would avoid the difficulty to be associated with aftempting to compel the President to name a new officer. Additionally, if Congress were to select an officer appointed by the head of a department, it could take advantage of the holding in Perkins and the confirmatory language in Myers, set out above, approving the congressional power to limit and to regulate the removal of such an officer by the department head. Of course, the problem raised above whether this limitation and regulation would bind the President would still be present, but even if it should be thought that the President's power would be left uncurbed the other consequences of its exercise would no doubt constitute a deterrent of no little force. IV. To summarize: It appears that the separation of powers concept which is embodied in our constitutional structure, and especially the vesting of the executive power to see to the faithful execution of the laws, places upon any proposal for an independent office substantial obstacles to achievement. First, the office seems necessarily to be located in the executive branch. Second, there would necessarily be a range of presidential power to direct and control which could not be avoided. Third, a special prosecutor could no doubt be appointed by a court pursuant to congressional authorization, but it remains doubtful that through such a device independence of the President could be achieved. Fourth, a large measure of independent discretion could seemingly be conferred upon an executive branch officer through statutory vesting of obligations which the President could not override, although it is impossible to determine how far Congress could carry this; probably it could not exercise its power in any plenary fashion, inasmuch as to do so would be to wholly undermine one of the President's independent powers. [From the Library of Congress, Congressional Research Service, Feb. 19, 1974] (Prepared by Richard Ehlke, Legislative Attorney) Reform proposals regarding the structure of the Department of Justice have come from many quarters over the years since the creation of the Department in 1870. The most concerted efforts for reform have occurred following the scandals which have periodically plagued the Department, most notably in 1924, 1953 and 1973. Only in the Watergate scandal, though, as far as we have been able to determine, have far-reaching legislative proposals such as Senator Ervin's Independent Justice Department Act been seriously considered. Such proposals are attempts to not only work administrative and management reforms but also to restructure the political influences upon the Department with an eye towards eliminating any partisan enforcement of the laws. In 1924 charges of corruption were levelled against Attorney General Harry Daugherty and other officials of the Department of Justice. During the hearings of the Senate Select Committee on Investigation of the Attorney General, John Crim, an assistant to the Attorney General, recommended that the United States attorneys and the Attorney General be appointed on the basis of merit and taken out of politics. He also suggested that the Attorney General be taken out of the Cabinet. Hearings Before the Senate Select Committee on Investigation of the Attorney General, 68th Cong., 1st Sess. (1924) at 2565, 2583, 2590. These proposals were only briefly discussed and we have been unable to locate any legislative proposals patterned after these suggestions which were introduced in the wake of the Daugherty era. Similar proposals were echoed after the scandals in the Justice Department during the Truman administration. Attorney General McGranery in 1953 recom regard are expressly authority only for the validity of congressional limitation upon the removal power of the department heads; no reference is made to the possible power of the President himself to remove or to cause the removal of such inferior officers. A tension obviously exists here between one of the principle rationales of Myers, confirmed in Humphrey and Wiener, and the result of Perkins and the confirmatory language of Myers. The authority to resolve the matter is lacking; however, if we follow the analysis of part one of this memorandum the balance would seem to tilt somewhat against a conclusion that Congress could invest a special prosecutor appointed by the court with independence of the President. III. Under the separation of powers concept and under the scheme of government established in the Constitution, the law which the executive executes is in the main that enacted by Congress; the Constitution itself and treaties entered into pursuant to the Constitution are the only other sources of law recognized. Article VI, cl. 2. The relevance of this point in this instance is illustrated by Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838), which grew out of President Jackson's instructions to his Postmaster General to refuse to comply with a congressional mandate to pay a sum of money to Stokes. "The theory of the constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the constitution, the departments may be regarded as independent of each other. But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed." "The executive power is vested in a president; and so far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is under the exclusive direction of the president. Such a principle, we apprehend, is not, and certainly cannot be claimed by the president. There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the president. But it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the president. And this is emphatically the case, where the duty enjoined is of a mere ministerial character. Id., 610. "It was urged at the bar, that the postmaster-general was alone subject to the direction and control of the president, with respect to the execution of the duty imposed upon him by this law; and this right of the president is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the president a dispensing power, which has no countenance for its support, in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the president with a power entirely to control the legislation of congress, and paralyze the administration of justice. "To contend, that the obligation imposed on the president to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible." Id., 612-613. The meaning of the principle of this case, as Chief Justice Taft recognized in Myers, supra, 135, is that Congress may structure the obligations and duties of an executive officer in such detail that he is effectively rendered free of administrative and supervisory direction of the President, although he may remain ultimately subject to removal by the President for carrying out the will of Congress, a matter over which Congress is not without remedy. Thus, should Congress devolve upon an executive officer already in place the additional responsibilities of a special prosecutor, empowering him for example to utilize judicial process to obtain documents and other materials as to w the President may claim executive privilege, instructing him, for instance, to challenge claims of executive privilege, such an officer might very well have as much independence as could in effect be wished. Congress may designate officers in place to perform additional duties without requiring their reappointment or any further action by the President. Shoemaker v. United States, 147 U.S. 282 (1893). Proceeding this way would avoid the difficulty to be associated with attempting to compel the President to name a new officer. Additionally, if Congress were to select an officer appointed by the head of a department, it could take advantage of the holding in Perkins and the confirmatory language in Myers, set out above, approving the congressional power to limit and to regulate the removal of such an officer by the department head. Of course, the problem raised above whether this limitation and regulation would bind the President would still be present, but even if it should be thought that the President's power would be left uncurbed the other consequences of its exercise would no doubt constitute a deterrent of no little force. IV. To summarize: It appears that the separation of powers concept which is embodied in our constitutional structure, and especially the vesting of the executive power to see to the faithful execution of the laws, places upon any proposal for an independent office substantial obstacles to achievement. First, the office seems necessarily to be located in the executive branch. Second, there would necessarily be a range of presidential power to direct and control which could not be avoided. Third, a special prosecutor could no doubt be appointed by a court pursuant to congressional authorization, but it remains doubtful that through such a device independence of the President could be achieved. Fourth, a large measure of independent discretion could seemingly be conferred upon an executive branch officer through statutory vesting of obligations which the President could not override, although it is impossible to determine how far Congress could carry this; probably it could not exercise its power in any plenary fashion, inasmuch as to do so would be to wholly undermine one of the President's independent powers. [From the Library of Congress, Congressional Research Service, Feb. 19, 1974] (Prepared by Richard Ehlke, Legislative Attorney) Reform proposals regarding the structure of the Department of Justice have come from many quarters over the years since the creation of the Department in 1870. The most concerted efforts for reform have occurred following the scandals which have periodically plagued the Department, most notably in 1924, 1953 and 1973. Only in the Watergate scandal, though, as far as we have been able to determine, have far-reaching legislative proposals such as Senator Ervin's Independent Justice Department Act been seriously considered. Such proposals are attempts to not only work administrative and management reforms but also to restructure the political influences upon the Department with an eye towards eliminating any partisan enforcement of the laws.oblery In 1924 charges of corruption were levelled against Attorney General Harry Daugherty and other officials of the Department of Justice. During the hear ings of the Senate Select Committee on Investigation of the Attorney General, John Crim, an assistant to the Attorney General, recommended that the United States attorneys and the Attorney General be appointed on the basis of merit and taken out of politics. He also suggested that the Attorney General be taken out of the Cabinet. Hearings Be regard are expressly authority only for the validity of congressional limitation upon the removal power of the department heads; no reference is made to the possible power of the President himself to remove or to cause the removal of such inferior officers. A tension obviously exists here between one of the principle rationales of Myers, confirmed in Humphrey and Wiener, and the result of Perkins and the confirmatory language of Myers. The authority to resolve the matter is lacking; however, if we follow the analysis of part one of this memorandum the balance would seem to tilt somewhat against a conclusion that Congress could invest a special prosecutor appointed by the court with independence of the President. III. Under the separation of powers concept and under the scheme of government established in the Constitution, the law which the executive executes is in the main that enacted by Congress; the Constitution itself and treaties entered into pursuant to the Constitution are the only other sources of law recognized. Article VI, cl. 2. The relevance of this point in this instance is illustrated by Kendall v. United States ex rel. Stokes, 12 Pet. (37 U.S.) 524 (1838), which grew out of President Jackson's instructions to his Postmaster General to refuse to comply with a congressional mandate to pay a sum of money to Stokes. "The theory of the constitution undoubtedly is, that the great powers of the government are divided into separate departments; and so far as these powers are derived from the constitution, the departments may be regarded as independent of each other. But beyond that, all are subject to regulations by law, touching the discharge of the duties required to be performed." "The executive power is vested in a president; and so far as his powers are derived from the constitution, he is beyond the reach of any other department, except in the mode prescribed by the constitution through the impeaching power. But it by no means follows, that every officer in every branch of that department is under the exclusive direction of the president. Such a principle, we apprehend, is not, and certainly cannot be claimed by the president. There are certain political duties imposed upon many officers in the executive department, the discharge of which is under the direction of the president. But it would be an alarming doctrine, that congress cannot impose upon any executive officer any duty they may think proper, which is not repugnant to any rights secured and protected by the constitution; and in such cases, the duty and responsibility grow out of and are subject to the control of the law, and not to the direction of the president. And this is emphatically the case, where the duty enjoined is of a mere ministerial character. Id., 610. "It was urged at the bar, that the postmaster-general was alone subject to the direction and control of the president, with respect to the execution of the duty imposed upon him by this law; and this right of the president is claimed, as growing out of the obligation imposed upon him by the constitution, to take care that the laws be faithfully executed. This is a doctrine that cannot receive the sanction of this court. It would be vesting in the president a dispensing power, which has no countenance for its support, in any part of the constitution; and is asserting a principle, which, if carried out in its results, to all cases falling within it, would be clothing the president with a power entirely to control the legislation of congress, and paralyze the administration of justice. "To contend, that the obligation imposed on the president to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the constitution, and entirely inadmissible." Id., 612-613. The meaning of the principle of this case, as Chief Justice Taft recognized in Myers, supra, 135, is that Congress may structure the obligations and duties of an executive officer in such detail that he is effectively rendered free of administrative and supervisory direction of the President, although he may remain ultimately subject to removal by the President for carrying ont will of Congress, a matter over which Congress is not without reme should Congress devolve upon an executive officer already in tional responsibilities of a special prosecutor, empowering utilize judicial process to obtain documents and oth |