Statute Limiting the President's Authority to Supervise the Director of the Centers for Disease Control in the Distribution of an AIDS Pamphlet ( 1988 )

Statute Limiting the President’s Authority to Supervise the
Director of the Centers for Disease Control in the Distribution of an
AIDS Pamphlet
Statutory provision requiring the D irector o f the Centers for D isease Control to distribute an AIDS
inform ation pam phlet to the public “without necessary clearance o f the content by any official,
organization or office” violates the separation o f powers by unconstitutionally infringing upon the
P resident’s authority to supervise the executive branch.
March 11, 1988
M em o ran d u m O p in io n f o r t h e C ou n sel to the P r e s id e n t
This memorandum responds to your request that this Office comment on the
constitutionality of a provision found in H.J. Res. 395 (the fiscal 1988 Continu­
ing Resolution), which purports to require the Director of the Centers for Dis­
ease Control (“CDC”) to arrange for the mass mailing of AIDS information fliers,
free from any executive branch supervision. For the reasons set forth below, we
believe that this provision violates the separation of powers by unconstitution­
ally infringing upon the President’s authority to supervise the executive branch.1
I. Background
The provision in question is found at page 22 of the “Departments of Labor,
Health and Human Services, and Education, and Related Agencies Appropria­
tion Act,” one of the appropriations measures subsumed within H.J. Res. 395.
That provision requires “[t]hat the Director [of the CDC] shall cause to be dis­
tributed without necessary clearance o f the content by any official, organization
or office, an AIDS mailer to every American household by June 30,1988, as ap­
proved and funded by the Congress in Public Law 100-71” (emphasis added).2
1 This memorandum is confined to the constitutional illegitimacy o f this provision’s restriction on the Presi­
dent’s exercise o f his supervisory powers. Accordingly, this memorandum does not address the constitutionality of
the provision’s establishment of a June 30, 1988, deadline for the mailing o f AIDS fliers. See text o f provision, in­
fra, main text.
2 The provision’s legislative history suggests that congressional concern over White House delays in authoriz­
ing the mailing o f AIDS fliers by the CDC led to passage o f the provision under scrutiny in this memorandum. The
Senate Appropriations Committee Report accompanying the fiscal 1988 Departments of Labor, Health and Human
Services, and Education and Related Agencies Appropriations Bill stated* “The Committee is greatly concerned
that the $20,000,000 provided by the Committee in the 1987 supplemental for an every-household mailing has been
delayed by the White House The Committee believes that this is an important initiative as recommended by the
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The CDC is a subordinate executive branch agency within the Public Health
Service of the Department of Health and Human Services (“HHS”).3 On its face,
the language highlighted above (“shall cause to be distributed w ithout. . . clear­
ance of the content by any official”) appears to preclude the President and his
subordinates from overseeing the CDC ’s determination of the content of the AIDS
mailer. This language thus prevents the President, either directly or through his
subordinates, from supervising a subordinate executive branch official (the CDC
Director) in the conduct of certain of his duties (viz., the dissemination of spec­
ified AIDS-related information to the public), trenching upon the President’s ex­
clusive constitutional authority to supervise the executive branch. See U.S. Const,
art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the United
States of America.”).4
II. Discussion
A. The Nature o f the Unitary Executive
As head of a unitary executive, the President controls all subordinate officers
within the executive branch. The Constitution vests in the President of the United
States “The executive Power,” which means the whole executive power. Because
no one individual could personally carry out all executive functions, the Presi­
dent delegates many of these functions to his subordinates in the executive branch.
But because the Constitution vests this power in him alone, it follows that he is
solely responsible for supervising and directing the activities of his subordinates
in carrying out executive functions. Any attempt by Congress to constrain the
President’s authority to supervise and direct his subordinates in this respect, vi­
olates the Constitution.
2 (. . continued)
CDC and the Department [of Health and H um an Services], and bill language has been included mandating this
mailing by February 15, 1988.” S. Rep No 189, 100th Cong., 1st Sess. 70 (1987). (The mailing deadline date was
changed to June 30,1988, in the final Continuing Resolution.) Reflecting this concern, the amended version o f the
Labor and Related Agencies Appropriations Bill, reported by the Appropriations Committee and debated by the
full Senate on October 13,1987, contained language requiring CDC to distribute AIDS mailers “without necessary
clearance o f the content by any official, organization or office.” See 133 Cong Rec. 27,372 (1987).
3 The CDC was established by the Secretary of HHS pursuant to his authority under section 301 o f the Act of
July 1, 1944, as amended, 58 Stat. 691 (1944) (codified at 42 U.S.C § 241). That section authorizes the Secretary
o f HHS to “conduct in the [Public Health] Service . . . research, investigations, experiments, demonstrations, and
studies relating to the causes, diagnosis, treatment, control, and prevention of physical and mental diseases and im­
pairments o f m an.” 42 U.S.C § 241(a). The CDC was organized as the “Communicable Disease Center” in the
1950s, and redesignated the CDC in 1970. S ee 35 Fed. Reg 10,797 (1970). The CDC was given full “agency sta­
tus” in 1973. See 38 Fed. Reg. 18,261(1973). The CDC was reorganized in 1980. See 45 Fed. Reg. 67,772 (1980).
4 Since the provision in question, on its face, precludes supervision o f the CDC Director “by any official, orga­
nization o r office,” the question arises w hether the President him self is an “official, organization or office” within
the m eaning o f the statute. Even assuming th at the President himself is deemed to be neither an “official” (a strained
interpretation, since the President certainly exercises “official” functions m carrying out his duties, such as the duty
to “ lake Care that the Laws be faithfully executed”) nor an “organization” nor an “office,” the provision at issue is
constitutionally impermissible, in that it effectively eviscerates the President’s ability to supervise a subordinate
executive branch agency, the CDC. Since ev en under this construction the terms “official," “organization,” and “of-
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B. Evidence o f Original Intent
Evidence of the framers’ original intent demonstrates that the Constitution was
designed to vest the whole executive power in the President.5 The framers pur­
posefully chose a unitary executive approach over a more traditional alternative.
Influenced by the British model, in which ministers were held responsible for the
acts of an unimpeachable monarch, most of the original states inhibited their gov­
ernors’ power by forcing them to act through, or in cooperation with, some form
of privy council or constitutional cabinet. See The Federalist No. 70 (Alexander
Hamilton) (Clinton Rossitered., 1961) (“The Federalist”). This device was care­
fully considered and deliberately rejected by the Federal Convention. The ques­
tion of the proper disposition of the executive power in the new Constitution pro­
voked a lengthy explication in several numbers of the The Federalist.
The two main reasons for adopting a truly unitary executive in the new Con­
stitution were complementary and mutually reinforcing. On the one hand, unity
obviously promotes dispatch and decisiveness, which is of far greater importance
in the executive than in either of the other branches. As Hamilton pointed out:
In the legislature, promptitude of decision is oftener an evil than
a benefit. The differences of opinion, and the jarring of parties in
that department of the government, though they may sometimes
obstruct salutary plans, yet often promote deliberation and cir­
cumspection, and serve to check excesses in the m ajority.. . . But
no favorable circumstances palliate or atone for the disadvantages
of dissention in the executive department. . . . They serve to em­
barrass and weaken the execution of the plan or measure to which
they relate, from the first step to the final conclusion of it.
4 ( . . . continued)
flee” certainly encompass all officers o f the executive branch other than the President, the President would be pre­
cluded from assigning supervision o f the C D C ’s AIDS mailer activities to any of his subordinates Wholly apart
from the fact that limitations on the President’s time would prevent him personally from overseeing the C D C ’s
AIDS-related functions, such a preclusion would intolerably denude the President o f his constitutional prerogative
to establish the means by which his supervisory authonty is to be exercised As this Office has opined, the mere
fact that Congress places particular executive functions in specified executive branch agencies does not preclude
the President from exercising general supervisory authority with regard to those functions through his agents, such
as the Office o f Management and Budget See Proposed Executive Order Entitled "Federal Regulation”, 5 Op
O L.C. 59, 63-64 (1981). Yet the statutory provision at issue would bar him from assigning supervision of the
C D C ’s AIDS mailer to any other individual or entity within the executive branch. (For example, even assuming the
President himself is not covered by this statute, he could not assign supervision of the CD C ’s AIDS mailer activi­
ties to his subordinates within the White House Office, since the term “office” would appear to apply to that entity.
Buttressing this conclusion is the fact that the Senate’s concern about “White House delays” {see supra note 2) ap­
parently prompted adoption o f the statutory provision under scrutiny.) In sum, even if the President is not person­
ally covered, the effective result o f this statutory provision would be an infringement on the President’s supervi­
sory authonty vis-a-vis CDC’s AIDS mailer activities.
5 Our discussion of the Framers’ original intent with respect to the unitary executive does not purport to be ex­
haustive, but illustrative. For a fuller discussion of the issue, see Myers v United States, 272 U.S. 52 (1926).
49
The Federalist No. 70, at 426-27 (Alexander Hamilton). Even more important in
Hamilton’s view, however, unity in the executive promotes accountability, which
is the necessary flip side of decisiveness. As Hamilton pointed out, the more that
the executive power is watered down and distributed among various persons, the
easier it is for everyone concerned to avoid the blame for bad actions taken or for
desirable actions left undone.
At the Pennsylvania ratifying convention, James Wilson offered the same view
of the advantages of a unitary executive:
The next good quality that I remark is, that the executive author­
ity is one. . .. The executive power is better to be trusted when it
has no screen. . . . We secure vigor. We well know what numer­
ous executives are. We know there is neither vigor, decision, nor
responsibility, in them. Add to all this, that officer is placed high,
and is possessed of power far from being contemptible, yet not a
single privilege is annexed to his character; far from being above
the laws, he is amenable to them in his private character as a cit­
izen, and in his public character by impeachment.
2 Elliot’s Debates 480.
The Framers were under no illusions that vesting the executive power in a sin­
gle person would suffice to accomplish the goals they had in mind when they
chose a unitary executive. They believed that the nature of popular government
is such that legislative tyranny is the danger most to be feared: as Madison noted,
legislatures inevitably seek to draw “all power into [their] impetuous vortex.”
The Federalist No. 48, at 309 (James Madison). Alexander Hamilton explained
this tendency as follows: “The representatives of the people, in a popular as­
sembly, seem sometimes to fancy that they are the people themselves, and be­
tray strong symptoms of impatience and disgust at the least sign of opposition
from any other quarter; as if the exercise of its rights, by either the executive or
judiciary, were a breach of their privilege and an outrage to their dignity.” The
Federalist No. 71, at 433.
The constitutional remedies for what Madison called “this inconveniency”
(The Federalist No. 51, at 322) (James Madison) included the devices of bicam­
eralism and the presidential veto. But human nature being what it is, the framers
anticipated that the legislature would inevitably seek and find new devices for
encroaching on the other branches and for trying to make those other branches
its servants. The only way to prevent this from happening was to arm the Presi­
dent and encourage him to fight against it:
[T]he great security against a gradual concentration of the sev­
eral powers in the same department consists in giving to those who
administer each department the necessary constitutional means
50
' and personal motives to resist encroachments of the others. . . .
Ambition must be made to counteract ambition.
The Federalist No. 51, at 321-322 (James Madison) (emphasis added). See also
INS v. Chadha, 462 U.S. 919,951 (1983) (“The hydraulic pressure inherent within
each of the separate Branches to exceed the outer limits of its power, even to ac­
complish desirable objectives, must be resisted.”).
The fundamental need for the President to have firm control over the conduct
of his executive branch subordinates was recognized by the First Congress when
it debated whether he had the inherent power to remove those subordinates from
office. In the course of an extended debate in the House of Representatives, nu­
merous Congressmen articulated the reasons for leaving the President the means
of remaining master in his own house. See 1 Annals of Cong. 462-584 (1789).
For example, James Madison said:
Vest [the power of removal] in the Senate jointly with the Presi­
dent, and you abolish at once that great principle of unity and re­
sponsibility in the Executive department . . . . If the President
should possess alone the power of removal from office, those who
are employed in the execution of the law will be in their proper
situation, and the chain of dependence be preserved__ The pow­
ers relative to offices are partly Legislative and partly Executive.
The Legislature creates the office, defines the powers, limits its
duration, and annexes a compensation. This done, the Legislative
power ceases.
Id. at 499,581-82 (emphasis added). Mr. Boudinot of New Jersey described what
would happen if the President could not unilaterally dismiss his subordinates:
[W]hat a situation is the President then in, surrounded by officers
with whom, by his situation, he is compelled to act, but in whom
he can have no confidence, reversing the privilege given him by
the Constitution, to prevent his having officers imposed upon him
who do not meet his approbation?
Id. at 469 (emphasis added). Mr. Sedgwick of Massachusetts said:
Shall a man . . . be saddled upon the President, who has been ap­
pointed for no other purpose but to aid the President in perform­
ing certain duties? . . . If he is, where is the responsibility? Are
you to look for it in the President, who has no control over the of­
51
ficer, no power to remove him if he acts unfeelingly or unfaith­
fully?6
Id. at 522-23.
In short, the Framers believed that the President should enjoy exclusive au­
thority to supervise his subordinates in carrying out executive functions, free from
interference by the other branches.
C. Case Law Precedents
Supreme Court jurisprudence supports the proposition that the President should
enjoy full power to supervise his subordinates in carrying out executive branch
functions. For example, in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-66
(1803), Chief Justice Marshall stated:
By the Constitution o f the United States, the President is in­
vested with certain important political powers, in the exercise of
which he is to use his own discretion, and is accountable only to
his country in his political character, and to his own conscience.
To aid him in the performance of these duties, he is authorized to
appoint certain officers, who act by his authority and in confor­
mity with his orders.
In such cases, their acts are his acts; and whatever opinion may
be entertained of the manner in which executive discretion may
be used, still there exists, and can exist, no power to control that
discretion.
The extent of the President’s right to control subordinate officers was specif­
ically considered by the Supreme Court in a trilogy of cases involving the Pres­
ident’s power to remove federal officials. In Myers v. United States, 272 U.S. 52(1926), the Court ruled unconstitutional a statute that limited the President’s
power to remove certain postmasters, and it declared, in dictum, that the repealed
6 Admittedly, this debate was not entirely one-sided. Some Members of Congress argued that the Senate must
consent to the P resident’s removal of particular subordinates. For example, Mr. Jackson o f Georgia argued against
allow ing officers o f the executive departments to be “mere creatures of the President,” on the ground that such a
result would cause executive “ministers [to] obtrude upon us to govern and direct the measures of the Legislature,
and to support the influence o f their master.” Id at 487 Mr. W hite of Virginia maintained that the President’s
claim ed power to remove executive officers “ is a doctrine not to be learned in American Governments; is no part
o f the Constitution o f the Union.” Id at 513. Nevertheless, the point of view articulated by Madison— that the Pres­
ident alone possesses the pow er to remove his subordinates within the executive branch— earned the day. In en­
acting legislation creating executive departments, the First Congress decided not to include provisions specifying
the means by which executive officers could be removed from Office.
52
Tenure of Office Act had been unconstitutional as well.7 In reaching this con­
clusion, the Court considered a number of factors, including the constitutional
debates, previous congressional practice, and the relationship between the power
to appoint and the power to remove. In addition, the Court expressly based its
decision on the conclusion that “Article II grants to the President the executive
power of the Government, i.e., the general administrative control of those exe­
cuting the laws, including the power of appointment and removal of executive
officers— a conclusion confirmed by his obligation to take care that the laws be
faithfully executed.” 272 U.S. at 163-64. The Court based this conclusion on the
following analysis of the President’s control over subordinate officials:
The ordinary duties of officers prescribed by statute come under
the general administrative control of the President by virtue of the
general grant to him of the executive power, and he may properly
supervise and guide their construction of the statutes under which
they act in order to secure that unitary and uniform execution of
the laws which Article II of the Constitution evidently contem­
plated in vesting general executive power in the President alone.
Laws are often passed with specific provision for the adoption of
regulations by a department or bureau head to make the law work­
able and effective. The ability and judgment manifested by the of­
ficial thus empowered, as well as his energy and stimulation of
his subordinates, are subjects which the President must consider
and supervise in his administrative control. Finding such officers
to be negligent and inefficient, the President should have the
power to remove them.
Id. at 135.
The Court confirmed this view of the President’s power over his subordinates
within the executive branch in Humphrey’s Executor v. United States, 295 U.S.
602 (1935). In that case, the Court ruled that Congress could, consistent with the
Constitution, immunize a Commissioner of the Federal Trade Commission from
removal by the President at his pleasure. The Court reasoned that the FTC could
not “be characterized as an arm or an eye of the executive. Its duties are per­
formed without executive leave and, in the contemplation of the statute, must be
free from executive control.” Id. at 628. Specifically, the Court found that “the
[Com m ission acts in part quasi-legislatively [in making investigations for the
information of Congress] and in part quasi-judicially [in acting as a ‘master in
chancery’] . . . . To the extent that it exercises any executive function . . . it does
7 The Tenure o f Office Act, 14 Slat. 430 (1867), had provided that all officers appointed by and with the con­
sent of the Senate should hold their offices until their successors had been appointed and approved, and that cer­
tain heads o f departments, including the Secretary o f War, should hold their offices during the term o f the Presi­
dent who appointed them, subject to removal by consent o f the Senate. This Act was the principal basis for the
articles o f impeachment filed against President Andrew Johnson after he dismissed his Secretary o f W ar without
the consent o f the Senate.
53
so in the discharge and effectuation of its quasi-legislative or quasi-judicial pow­
ers, or as an agency of the legislative or judicial departments of the government.”
Id. (citation omitted). Myers was distinguished on the ground that “[t]he actual
decision in the Myers case finds support in the theory that such an officer is merely
one of the units in the executive department and, hence, inherently subject to the
exclusive and illimitable power of removal by the Chief Executive, whose sub­
ordinate and aid he is.” Id. at 627. The Court emphasized that the President re­
tained the right to direct the actions of his subordinates in carrying out executive
branch functions, free from interference by another branch:
The fundamental necessity of maintaining each of the three gen­
eral departments of government entirely free from the control or
coercive influence, direct or indirect, of either of the others, has
often been stressed and is hardly open to serious question. So much
is implied in the very fact of the separation of the powers of these
departments by the Constitution; and in the rule which recognizes
their essential co-equality. The sound application of a principle
that makes one master in his own house precludes him from im­
posing his control in the house of another who is master there.
Id. at 629—30. Thus, by narrowing Myers to cover only subordinates of the Pres­
ident carrying out purely executive functions, the Court linked the removal power
even more clearly to the right o f the President to control purely executive offi­
cials.
This principle was reaffirmed in Wiener v. United States, 357 U.S. 349 (1958).
In that case, the Court held that the President did not have a constitutional right
to remove a member of the W ar Claims Commission. The Court ruled that the
Commission was essentially judicial in nature and that it was intended by Con­
gress to operate entirely free of the President’s control. Id. at 355-56. The Court
expressly linked the right of removal with the right of the President to control a
particular official:
If, as one must take for granted, the War Claims Act precluded
the President from influencing the Commission in passing on a
particular claim, a fortiori must it be inferred that Congress did
not wish to have hang over the Commission the Damocles’ sword
of removal by the President for no reason other than that he pre­
ferred to have on that Commission men of his own choosing.
Id. at 356. The Court thus emphasized that Humphrey’s Executor “drew a sharp
line of cleavage between officials who were part of the Executive establishment
and were thus removable by virtue of the President’s constitutional powers,” and
those who were members of an independent body required to exercise its judg­
ment without hindrance from the Executive. Id. at 353. As the Court pointed out,
it is the function of a governmental body that determines whether it is subject to
54
executive control. The “sharp differentiation [between those officials who are
freely removable by virtue of the President’s inherent constitutional powers and
those who are not] derives from the difference in functions between those who
are part of the Executive establishment and those whose tasks require absolute
freedom from Executive interference.” Id.These three cases clearly establish the President’s right to control the actions
and duties of his subordinates within the executive branch. Myers explicitly set
forth the President’s right to control as one of the bases for establishing the pres­
idential right to discharge subordinate officials. Humphrey’s Executor and
Wiener, while limiting the President’s removal power, reinforced the link be­
tween the President’s right to control and his right to remove executive branch
officials. Since, in the instant case, the Director of the CDC performs an execu­
tive function and is thus inescapably within the executive branch, the limitations
imposed by Humphrey’s Executor and Wiener do not apply to presidential su­
pervision of the CDC Director.
The President’s right to control the execution of the laws free from undue in­
terference from coordinate branches of government is supported by an additional
line of authority. In United States v. Nixon, 418 U.S. 683 (1974), the Supreme
Court confirmed that the Constitution protects the integrity of the executive
branch decision-making process from interference by another branch through de­
mands for information about the executive’s deliberations. The Court recognized
the valid need for protection of communications between high
Government officials and those who advise and assist them in the
performance of their manifold duties; the importance of this con­
fidentiality is too plain to require further discussion. Human ex­
perience teaches that those who expect public dissemination of
their remarks may well temper candor with a concern for appear­
ances and for their own interests to the detriment of the decision­
making process.
Id. at 705. The Court specifically acknowledged that this right of confidentiality
“can be said to derive from the supremacy of each branch within its own assigned
area of constitutional duties. Certain powers and privileges flow from the nature
of enumerated powers; the protection of the confidentiality of Presidential com­
munications has similar constitutional underpinings.” Id. at 705-06 (footnote
omitted). The Court further noted that this protection “is fundamental to the op­
eration of Government and inextricably rooted in the separation of powers under
the Constitution.” Id. at 708.
This decision gives further content to the principle that the constitutional sep­
aration of powers requires the President to have effective control over the deci­
sion-making process within the executive branch. The constitutional prerogative
recognized by the Court connects the President’s constitutional responsibility to
take care that the laws be faithfully executed with the practical need for confi­
dentiality in executive branch deliberations. The Court has unmistakably declared
55
that the powers necessary to the implementation of the President’s authority over
the executive branch cannot be abridged absent a compelling and specific need
asserted by another branch.8
D. Implications fo r the Instant Case
The preceding discussion delineating the President’s control of the unitary ex­
ecutive is directly applicable to the instant case. The Director of the CDC, as a
subordinate executive branch officer within the Department of Health and Hu­
man Services, is subject to the complete supervision of the President with respect
to the carrying out of executive functions. The congressionally-imposed re­
quirement that the Director of the CDC develop and distribute AIDS information
to the general public entails the carrying out of a purely executive function. The
dissemination of AIDS information to the public does not involve the judicial
function of the adjudication o f cases, nor does it involve legislative activity.9
Rather, the dissemination of this information clearly involves “[interpreting a
law enacted by Congress [the Continuing Resolution] to implement the legisla­
tive mandate” of furthering the public health and welfare by informing the pub­
lic about AIDS, which “plainly entail[s] execution of the law in constitutional
terms.” Bowsher v. Synar, 478 U.S. 714, 732-33 (1986). In short, the President
has complete constitutional authority to supervise the Director of the CDC (a sub­
ordinate executive branch officer) in connection with the dissemination of AIDS
fliers to the general public (an executive function). Accordingly, by preventing
the President from supervising the CDC Director in this regard, the Continuing
Resolution provision at issue in this memorandum unconstitutionally infringes
upon the President’s exercise o f that authority.
The unconstitutional nature of the AIDS-related Continuing Resolution pro­
vision also may be established by reference to the Supreme Court’s discussion
in Nixon of Congress’s constitutional inability to undercut the confidential na­
ture of internal executive branch deliberative processes. The fundamental prin­
ciple emerging from Nixon is that Congress cannot constitutionally require the
President to render unto it information bearing on the precise manner in which
8 A lthough the Nixon case dealt with communications between the President and White House advisors, it seems
clear that the principles enunciated therein extend at least to other important decision makers within the executive
branch. See U nited States v. AT& T, 567 F.2d 121 (D.C. Cir. 1977). The Nixon Court specifically referred not sim­
ply to the President but to “ high Government officials and those who advise and assist them.” 418 U.S. at 705 Fur­
thermore, as the Supreme Court recognized in Barr v M atteo, 360 U S. 564 (1959), where it extended the privi­
lege against libel suits involving official utterances to executive officials below Cabinet rank:
We do not think that the principle announced in Vilas can properly be restricted to executive officers
o f cabinet rank, and in fact it never has been so restricted by the lower federal courts. The privilege is
not a badge or emolument of exalted office, but an expression o f a policy designed to aid in the ef­
fective functioning o f government T he complexities and magnitude o f governmental activity have be­
com e so great that there must of necessity be a delegation and redelegation of authority as to many
functions, and we cannot say that these functions become less important simply because they are ex­
ercised by officers o f low er rank in th e executive hierarchy.
360 U.S. at 572-73 (footnote omitted).
9 N or can the C D C ’s task be viewed as quasi-legislative o r quasi-judicial, as those terms are used in Humphrey's
Executor.
56
the President carries out his supervisory authority. It follows, a fortiori, that the
Constitution precludes the Congress from undermining the executive decision­
making process by preventing the President from even exercising his supervisory
authority over an executive agency, such as the CDC. If Congress is barred from
unacceptably interfering in internal executive branch deliberations (Nixon), it
surely is precluded from preventing the carrying out of such deliberations—the
result that would obtain if Congress were permitted to bar presidential oversight
of CDC actions.
Our conclusion that Congress cannot constitutionally preclude presidential
oversight of the CDC’s dissemination of AIDS mailers (or the CDC’s carrying
out of any other executive function) is fully in keeping with principles previously
enunciated by this Office. As this Office opined in commenting upon a law that
purported to require a subordinate executive officer to provide specified infor­
mation directly to Congress, “ [t]he separation of powers requires that the Presi­
dent have ultimate control over subordinate officials who perform purely exec­
utive functions and assist him in the performance of his constitutional
responsibilities. This power includes the right to supervise and review the work
of such subordinate officials, including reports issued either to the public or to
Congress.” Constitutionality of Statute Requiring Executive Agency to Report D i­
rectly to Congress, 6 Op. O.L.C. 632,633 (1982) (emphasis added). Accordingly,
a legislative provision precluding presidential review of AIDS fliers drafted by
the CDC for public dissemination violates the separation of powers.
Consistent with the preceding analysis, it matters not at all that the informa­
tion in the AIDS fliers may be highly scientific in nature. The President’s super­
visory authority encompasses all of the activities of his executive branch subor­
dinates, whether those activities be technical or non-technical in nature.10 This
necessarily follows from the fact that the Constitution vests “[t]he entire execu­
tive Power,” without subject matter limitation, in the President.11
Finally, we wish to stress the significance of the fundamental constitutional
principles at stake here. The egregious manner in which the Continuing Resolu­
tion provision at issue offends the separation of powers cannot be overempha­
sized. Congress has no more right to prevent the President from supervising a
subordinate (the CDC Director) in his performance of an executive task (the dis­
semination of AIDS-related information) than the President would have to pre­
clude federal judges from reviewing draft opinions prepared by their clerks— or
than the federal judiciary would have to bar Members of Congress from review­
ing draft legislation and reports prepared by congressional staff. If the principle
10 Thus, for example, the President enjoys supervisory authority over Environmental Protection Agency delib­
erations in the area of environmental science, and over National Aeronautics and Space Administration delibera­
tions dealing with space science
11 Indeed, it would be an absurdity to suggest that the existence o f the President’s supervisory authonty should
turn on the nature o f the executive duties being exercised. In enacting laws, Congress does not categonze the many
different statutory duties it creates according to their “technical” or “ non-technical” nature. Moreover, there is no
suggestion in the Constitution that the nature of the President’s responsibility to “take Care that the Laws be faith­
fully executed” (I) S Const art. II, § 3) is affected by the subject matter o f the law under consideration
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of separation of powers means anything, it means that each one of the three co­
equal branches o f government must be free to supervise its subordinates in the
performance of their official duties. Any effort by one branch to intrude upon
and, indeed, eviscerate the supervisory prerogatives of another branch is patently
offensive to the separation of powers. Such a destruction of the coequality of the
branches would help bring about “a gradual concentration of the several powers
in the same [offending] department”, thereby eliminating the means by which
“ [ajmbition must be made to counteract ambition.” The Federalist No. 51, at
321-22 (James Madison). As such the provision at issue here is fundamentally
inconsistent with our tripartite system of republican government.
III. Conclusion
For the foregoing reasons, we conclude that Congress cannot, consistent with
the Constitution, preclude the President from reviewing, either personally or
through subordinates, the content of AIDS mailers that are to be distributed to
the public. Statutory language that purports to preclude the President from car­
rying out such supervision is unconstitutional on its face and should be regarded
as a nullity.
C h a r l e s J. C o o p e r
Assistant Attorney General
Office of Legal Counsel
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