Power of the President to Remove Presidential Appointees From the National Capital Planning Commission ( 1982 )

Power of the President to Remove Presidential Appointees
from the National Capital Planning Commission
T here is no indication in the text o r legislative history o f the Hom e Rule Act that C ongress intended to
lim it the P re sid en t’s pow er to rem ove his appointees from the N ational C apital P lanning
Com m ission.
T he com position o f the Com m ission and the duties im posed on it indicate that Congress did not intend
it to be a quasi-legislative o r quasi-judicial body operating free of the President’s policy influence,
and its duties are essentially of an executive nature. T hus any lim itation on the P resident’s rem oval
power would be unconstitutional.
March 17, 1982
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
This responds to your request for our opinion concerning the President’s power
to remove presidential appointees from the National Capital Planning Commis­
sion (Commission). For the reasons stated hereafter, we conclude that those
appointees serve at the pleasure of the President and may be removed summarily
by him from their positions.
The Commission dates from the enactment of legislation in 1924, Act of
June 6, 1924, ch. 270, 43 Stat. 463. Its present composition, functions, and
responsibilities, however, are based on the District of Columbia Self-Govern­
ment and Governmental Reorganization Act of 1973, Pub. L. No. 93-198, 87
Stat. 774 (Home Rule Act), in particular on § 203,87 Stat. 779,40 U.S.C. § 71a
(1982). The Commission consists of seven ex cfficio members, viz., the Secretary
of the Interior, the Secretary of Defense, the Administrator of General Services,
the Mayor of the District of Columbia, the Chairman of the District of Columbia
Council, the Chairmen of the Committees on the District of Columbia of the
Senate and the House of Representatives, and of five appointed members with
experience in city or regional planning, three of whom are to be appointed by the
President alone and two by the Mayor. 40 U.S.C. § 71a(b). We understand that
your inquiry is directed only at the President’s power to remove the presidentially
appointed members.
The members of the Commission appointed by the President serve for six-year,
staggered terms. 40 U.S.C. § 71a(b)(2). The Commission was created as:
[T]he central Federal planning agency for the Federal Govern­
ment in the National Capital, and to preserve the important his­
torical and natural features thereof, . . . 40 U.S.C. § 71a(a)(l).
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The statute charges the Commission with the “ principal duties”
to (1) prepare, adopt, and amend a comprehensive plan for the
Federal activities in the National Capital and make related recom­
mendations to the appropriate developmental agencies; (2) serve
as the central planning agency for the Federal Government within
the National Capital region, and in such capacity to review their
development programs in order to advise as to consistency with
the comprehensive plan; and (3) be the representative of the
Federal and District Governments for collaboration with the Re­
gional Planning Council, as hereinafter provided.
40 U.S.C. § 71a(e).
The Commission has the following planning responsibilities for the National
Capital:
a. to adopt a comprehensive plan for the federal activities in the Nation’s
Capital, 40 U.S.C. § 71a(e);
b. to disapprove those parts of the comprehensive plan adopted by the
appropriate District of Columbia agencies which have a negative impact on the
interests or functions of the federal establishment in the Nation’s Capital, 40
U.S.C. § 71a(a)(4); and
c. to prepare a comprehensive plan consisting of the Commission’s recommen­
dations for the federal element developed under (a) supra, and of those parts of
the plans prepared by the District authorities with respect to which the Commis­
sion has not determined that they have a negative impact on the federal establish­
ment and which shall be incorporated in the comprehensive plan without change,
40 U.S.C. § 71c(a).
The District of Columbia Court of Appeals has summarized and characterized
the Commission’s planning functions under the Home Rule Act as follows:
[T]he NCPC’s [Commission’s] planning role is limited to prepar­
ing the federal elements of the comprehensive plan for the Na­
tional Capital and to exercising veto authority over those pro­
posed District elements which it finds will have a negative impact
on the interests of the Federal Establishment. Citizens Ass’n of
Georgetown v. Zoning Commission cf the District of Columbia,
392 A .2d 1027, 1034 (1978).
Our initial inquiry focuses on the question whether, in enacting legislation
establishing and maintaining the Commission, Congress has evidenced an intent
to limit the power of the President to remove the presidential appointees to the
Commission. The second inquiry is whether, assuming Congress intended to
limit the President’s removal power, Congress constitutionally could have done
so. We have set out the functions of the Commission in detail, since the nature of
those functions is relevant under existing case law to the issue of congressional
intent as well as to the constitutional issue.
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According to the basic rule of construction, first announced by James Madison
during the first session of the First Congress, the power of appointment carries
with it the power of removal. 1 Ann. Cong. 496 (1789). The courts have
consistently upheld the general applicability of that rule. Matter cf Hennen, 13
Pet. (38 U.S.) 230, 259-60 (1839); Blake v. United States, 103 U.S. 227, 231
(1880); Myers v. United States, 272 U.S. 52, 119 (1926); Cafeteria Workers v.
McElroy, 367 U.S. 886, 896-97 (1961); National Treasury Employees Union v.
Reagan, 663 F.2d 239, 246-^8 (D.C. Cir. 1981).
The Home Rule Act does not on its face limit the President’s removal power.
We have carefully examined the legislative history of the Act and have not found
any evidence of such intent or any indication that Congress wanted the presiden­
tial appointees to the Commission to be “ independent” of the President. The
provision in § 203(b)(2), (40 U.S.C. § 71a(b)) that the terms of the members of
the Commission appointed by the President shall be for six years does not have
the legal effect of limiting the President’s removal power. It has been established,
since Parsons v. United States, 167 U.S. 324, 338 (1897), that a provision for a
term merely means that the officer shall not serve beyond his term without a
reappointment which would subject him to the scrutiny of the appointing au­
thority. A term of office in itself therefore does not create a right to serve for its
maximum duration; it constitutes a limitation on, rather than a grant of, the
officer’s tenure. Parsons, ibid. To the same effect are Martin v. Tobin, 451 F.2d
1335, 1336 (9th Cir. 1971) (U.S. Marshal); Carey v. United States, 132 F. Supp.
218 (Ct. Cl. 1955) (U.S. Attorney); Farley v. United States, 139 F. Supp. 757,
758 (Ct. Cl. 1956) (U.S. Marshal). This point was conceded even in the
dissenting opinion of Justice Brandeis in Myers v. United States, supra, 272 U.S.
at 241.1
Wiener v. United States, 357 U.S. 349, 355-56 (1958), indicates that a
congressional intent to limit the President’s removal powers may be inferred from
the imposition of quasi-legislative or quasi-judicial functions on an officer or a
1 Borders v. Reagan, 518 F S upp 2 5 0 , 2 5 5 ,2 6 0 (D D C . 1981), appeal pending D .C . C ir D ocket N o. 8 1 -1 9 9 8 ,
w hich involved the interpretation o f § 434 of the H om e Rule A ct, seeks to distinguish Parsons on the th eo ry that
w hen C ongress, in providing for a term of office, uses the words “ shall serve fo r x y ea rs,” as it does in § 4 3 4 ,
C ongress expresses an intent that the officer shall serve out the term independent o f Presidential direction and,
therefore, from sum m ary rem oval. O n the other hand, the court reasoned, when C ongress uses the words “ shall be
appointed for a term o f x y e a rs.” as it did in the statute involved in Parsons and now in 28 U S .C §§ 5 4 1 (b ) and
561(b), C ongress indicates that the officer shall be subject to the P resident's d irection and, th erefo re, his rem oval
pow er S uch literalism m ight have been appropriate in the context o f 17th century conveyancing, but we b eliev e it
does not constitute a suitable m ethod o f discerning legislative purpose Indeed, the Home Rule A ct, and esp ecially
§ 203, 40 U S .C 7 1 a, the section here involved, uses both form ulas interchangeably S ection 203 pro v id es that
" th e term s of office o f the m em bers appointed by the President shall be for six years , ” w hile “ [m jem b ers
appointed by the M ayor shall serve for four years ” N ow here is there any indication that C ongress intended the
presidential appointees to be rem ovable, w hile the m em bers appointed by the M ayor are entitled to serve o u t their
term s. We believe the correct m eans o f ascertaining the legislative purpose is to proceed on the assum ption C o n g ress
is aw are of the longstanding ju d icia l interpretation placed on a provision fo r a term , viz . that it co n stitu tes a
lim itation rather than a grant, and that C ongress uses unm istakable and express language, rather than su b tle
m odifications in the term form ula, w hen it intends to m ake an official nonrem ovable du rin g his term . C o n g ress
know s that the E xecutive Branch has consistently taken the position that the President m ay rem ove app o in tees
except w here C ongress clearly (and constitutionally) intended the contrary result. We are com pelled to co n clu d e
that C ongress w ill m ake its intentions unm istakably clear when it intends to lim it the P resid en ts rem oval pow er
[ N o t e : In Borders v. Reagan, the court o f appeals granted the governm ent s m otion to vacate the d istrict c o u rt’s
ord er and rem anded for dism issal on grounds o f m ootness 732 F.2d 181 (D .C . Cir. 1982) Ed )
193
Commission. The composition of the Commission and the duties imposed on it
demonstrate, however, that Congress did not intend it to be a quasi-legislative or
quasi-judicial body in the context suggested by Wiener. The inclusion in the
Commission of two Cabinet Members (the Secretary of Defense and the Secre­
tary of the Interior) and of the Administrator of General Services suggests very
strongly the absence of any congressional purpose that the Commission should
be free from the policy influence of the President.2 In addition, a contrary
inference is to be drawn from the Commission’s functions. The preparation of a
comprehensive plan for the federal activities in the Nation’s Capital, i.e., to plan
the location and appearance of buildings used by federal agencies, and to prevent
the planning authorities of the District of Columbia from encroaching on the
interests or functions of the federal establishment, are essentially of an executive
nature. They cannot be and have not been considered to be quasi-legislative or
quasi-judicial in character. This analysis of the Commission functions and duties
has been adopted by the courts. In D.C. Federation cf Civic Associations v. Airis,
275 F. Supp. 533, 540 (D.D.C. 1967) the court held, per Holtzoff, J.:
The National Capital Planning Commission is not a judicial, or a
quasi-judicial tribunal; it is not a regulatory commission or an
adjudicatory body. . . . This Commission is purely and solely an
administrative group.
We recognize that some courts have characterized zoning as a quasi-legislative
function in view of the limitations it usually imposes on the use of private
property. See, e.g., Gerstenfeld v. Jett, 374 F.2d 333, 335 (D.C. Cir. 1967).
Planning and zoning, however, are not identical or interchangeable terms. 8
McQuillin, Mun. Corp., § 25.08 (3rd Ed., 1983 Revised Vol.).3 This is evi­
denced by the circumstance that, in the District of Columbia, the planning
authority for non-federal property is vested in the Mayor and Council, D.C.
Code § 1-2002 (1981), while the zoning authority for those projects is vested in
the Zoning Commission of the District of Columbia. D.C. Code§ 5-412(1981).
Moreover, since the Commission regulates only the use of federal property and
prevents encroachments on the federal interest by the local planning and zoning
authorities, it does not possess the “ quasi-legislative” power limiting land use by
a private property owner.4
2 W e believe that th e p resen ce o f the two con g ressio n al co m m ittee chairm en o n th e C om m ission does not co n fer
u p o n it a q u asi-leg isla tiv e character, and is not indicative o f a congressio n al in ten t to that effec t. In the fields o f
m a n ag in g a n d pro te ctin g th e p ro p erty of the U n ite d States, C o n g ress acts in a d u al capacity, i.e., not o n ly as a
leg islativ e b o d y b u t also , u n d er A rticle IV, § 3 , c l. 2 o f the C o n stitu tio n , as th e o w n er o r tru stee o f the p ro p er ty.
U nited States v. Midwest O il C o., 2 3 6 U.S. 4 5 9 .4 7 4 (1915); Kleppe v. New Mexico, 4 2 6 U .S . 5 2 9 ,5 4 0 ( 1 9 7 6 ) ,an d
th e a u th o rities th e re c ite d . S ince th e principal fu n ctio n s of the C om m issio n are to plan fo r th e proper u se c f the
fed era l ho ld in g s in th e D istrict o f C olum bia, to p ro te c t them against local encro ach m en t, and to acq u ire p ro p erty fo r
ce rta in fed eral pu rp o ses (4 0 U S C . § 72), the tw o com m ittee ch a irm en are essen tially acting as officers o f C o n g ress
ap p o in ted to rep resen t C o n g ress rather than to ex e rc ise in any fash io n C ongress' legislative power.
3 T h is po in t is m ade grap h ic b y a com parison o f th e opinions in American University v. Prentiss, 113 F. Supp. 3 89,
393 (D .D .C . 1953), c ffd , 214 F 2 d 282 (D .C. C ir.), cert, denied, 34 8 U S. 898 (1954), w ith D C. Federation o f
Civic Associations v. A iris, supra, both of which w e re handed dow n by Ju d g e H oltzoff. T he fo rm er opinion h eld that
a zo n in g co m m issio n p erform s a [quasi] legislative function, th e latter, as show n above, decided th at the
C o m m issio n is “ p u rely and solely an adm inistrative g ro u p /'
4 To th e ex ten t that th e D .C . elem ents of the com prehensive p lan prepared and adopted b y th e C om m ission
p u rsuant to 4 0 U .S .C . § 71c(a) lim it private la n d u se, the C om m issio n only acts as a conduit w ithout pow er of
am endm ent
194
Borders v. Reagan, 518 F. Supp. 250, 259, 264—68 (D.D.C. 1981), appeal
pending, D.C. Cir. Docket No. 81-1998, appears to be based on the assump­
tion—erroneous in our view— that the power of Congress to limit the President’s
removal power is somehow increased or more readily assumed in the case of
officers confined exclusively to local District of Columbia matters. The Commis­
sion, however, is not such an agency.
The very language of the Home Rule Act defines the Commission as the
central federal planning agency for the federal government in the Nation’s
Capital (§ 203(a)(1), 40 U.S.C. § 7 la(a)(l)). The use of the term “ Federal” was
no drafting accident. The legislative history of the Home Rule Act is replete with
statements stressing that the Commission is designed to be a federal agency
charged with the protection of the federal interest. Thus the House Report (H.R.
Rep. No. 482, 93d Cong., 1st Sess. (1973) states (at p.7):
The NCPC is designated as a Federal Planning Agency for the
Federal Establishment in the District, and the Commissioner
(Mayor) is designated as the central planning agency for the
District except for Federal and international projects.
And again (at p. 17):
[Section 203 establishes] the National Capital Planning Com­
mission as a Federal Planning Agency. . . .
The conference report (H.R. Rep. No. 703, 93d Cong., 1st Sess. 74 (1973))
shows that the conference adopted the pertinent House provisions:
The House amendment contained provisions, not included in
the Senate bill, which established the NCPC as a Federal planning
agency for the Federal government to plan for the Federal estab­
lishment in the National Capital region and provided that the
Mayor would be the central planning agency for the District. . . .
The Conference substitute (sections 203, 423) adopts, in es­
sence, the House provisions. . . .
These passages in the committee reports are corroborated by statements made
during the debates on the adoption of the bill in which the Commission was
characterized as “ a Federal entity” (Congressman Broyhill, 119 Cong. Rec.
33381); “ Our Federal protection arm” (Delegate Fauntroy, id. at 33384); “ a
Federal body” (Congressman O’Neill, id. at 33386); “ [t]he bill will: first,
strengthen the role of NCPC as the principal planning agency for the Federal
Government in the city and in the National Capital region as a whole” (Con­
gressman Stark, id. at 33392). Similar statements were made during the debate
on the adoption of the conference report in that body. The Commission was
characterized as “ the Federal planning agency” (Congressman Diggs, who was
in charge of the bill, 119 Cong. Rec. 42037); “ a Federal entity” (Congressman
Broyhill, id. at 42043); “ a Federal agency such as the National Capital Planning
Commission which is designed to protect the Federal interest” (Congressman
Nelsen, id. at 42051).
195
Similarly, the court of appeals held in D.C. Federation cf Civic Associations v.
Airis, 391 F.2d 478, 484 (D.C. Cir. 1968), that the Commission’s duties “ are
federal in nature.” 5
The Commission thus is not confined to local matters within the meaning of the
district court’s opinion in Borders, supra. To the contrary, the Commission is a
federal agency and an important part of its responsibilities is to prevent local
activities from interfering with the federal establishment.
We therefore conclude that Congress neither expressly nor by implication
limited the President’s power to remove his appointees to the Commission.
Assuming, arguendo, that Congress had sought to limit the President’s re­
moval power in the premises, such attempt would, in our view, have been
unconstitutional under controlling precedent. It has been firmly established that
Congress cannot limit the President’s power to remove executive officers. Myers
v. United States, supra. This aspect of Myers was recently reaffirmed in Buckley
v. Valeo, 424 U.S. 1, 135-36 (1976). See also Martin v. Tobin, 451 F.2d 1335
(9th Cir. 1971).6The Constitution permits express or implied statutory limitations
on the President’s removal power only in the case of officers performing quasi­
judicial or quasi-legislative functions. Humphrey’s Executor v. United States,
295 U.S. 602 (1935); Wiener v. United States, 357 U.S. 349 (1958). As
discussed above, the Commission’s duties are of an executive, rather than quasi­
judicial or quasi-legislative, nature.7
We therefore conclude that Congress did not limit the President’s power to
remove the presidential appointees to the Commission.
T h e o d o r e B. O lson
Assistant Attorney General
Office cf Legal Counsel
5 T h is decision is not an appeal from the ca se involving th e sam e parties referred to ea rlier in this opinion
6 T h e Myers ca se , it is tru e , is lim ited to officers appointed by the P resident by and with the advice and consent of
the S enate, an d the presidential appointees to th e C om m ission are appointed by the President alone. Perkins v.
United Stales, 116 U .S . 483 (1886), held that w h e re C ongress vests the appointm ent pow er in a D epartm ent head
u n der the term inal clause o f A rticle II, § 2 of the C o n stitu tio n , it m ay lim it his rem oval power. Myers did not decide
the question w hether Perkins ap p lies also to the situ a tio n w here the pow er of appointm ent is vested in the President
alone because that issue w as not b efo re it. It su g g ested , however, strongly that this question is to be answ ered in the
negative 272 U .S . at 16 1 -6 2 In Martin v Reagan, 525 F. S upp 1 1 0 (D .M a s s 1981), the co u rt held that an officer
appointed by th e P resident alone serves at the p le asu re o f th e P resident.
7 To the extent that Borders, supra, suggests th a t C ongress has the pow er under the C onstitution to lim it the
P resident’s rem oval pow er w ith respect to officers w h o se duties are confined to local D istrict o f C olum bia m atters, as
discussed, supra, the functions and duties of the C om m issio n are federal rather than local
196