Smithsonian, Appointments Clause, and Incompatibility Clause

Fri Apr 7 17:50:13 PDT 2006

The constitutional status of the Smithsonian has long been vexing -- not so much because of any Appointments Clause or Incompatibility Clause problem (I believe the positions on the Board are not "Offices," but I don't recall all the arguments just now), but because of concerns under the Bowsher v. Synar anti-aggrandizement principle.  Here's how we dealt with the issue at OLC in the Clinton Administration (http://www.usdoj.gov/olc/delly.htm).  WARNING:  It may not be very satisfying to strict doctrinalists or formalists:

  The Supreme Court decisions articulating the Court's anti-aggrandizement principle make it plain that Congress's formal authority is limited to the enactment of legislation and activities in aid of the legislative process such as investigation and oversight. The Gramm-Rudman Act's vesting in a congressional agent of the power to exercise policy-making control over the post-enactment decisions of executive officials is the paradigmatic example of congressional action in violation of this limitation. See Bowsher v. Synar, 478 U.S. 714 (1986) (invalidating the relevant provision of the Act). Respect for Congress's legitimate and broad authority to legislate is consistent with our duty as officials of the executive branch to identify instances in which Congress transgresses the boundaries of its constitutional sphere of operations.

  1. The Paradox of the Congressional Agencies. From reading the bare text of the Constitution, one might not expect there to exist any formally separate entities within the legislative branch other than the two houses themselves. From an early date, however, Congress has created distinct agencies, under its special supervision, for various purposes. Some of these agencies, or the officers who head them, exercise authority that seems incompatible or at least difficult to reconcile with the Supreme Court's anti-aggrandizement decisions. Of special interest are the Smithsonian Institution (and its subordinate bureaus, such as the John F. Kennedy Center for the Performing Arts ("J.F.K. Center")), the Library of Congress, the General Accounting Office ("GAO") (headed by the Comptroller General), the Government Printing Office ("GPO"), and the Office of the Architect of the Capitol.  [FN:   The composition of the Smithsonian's Board of Regents and of the Board of Trustees of the J.F.K. Center presents a separate problem under Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), because members of Congress serve on these boards through appointment by the Speaker and the President pro tempore. See 20 U.S.C. § 42 (Regents of Smithsonian); Id. § 76h(a) (Trustees of J.F.K. Center). ] The head of each of these agencies exercises authority with respect to executive officials or private persons that could be seen as problematic under Bowsher v. Synar, 478 U.S. 714 (1986), which held unconstitutional the Comptroller General's exercise of controlling authority over executive branch budgeting.

             We believe that many of the powers currently exercised by the presently existing congressional agencies may be deemed constitutionally harmless. Most of the functions undertaken by the Library of Congress, the basic accounting tasks of the GAO, and all of the duties of the Architect of the Capitol can comfortably be described as in aid of the legislative process. See Springer v. Government of the Philippine Islands, 277 U.S. 189, 202 (1928). The activities undertaken by the Smithsonian and its bureaus also seem to fit under a broad construction of that concept, a construction that is supported by historical practice stretching far back into the antebellum Republic. Cf. Springer, 277 U.S. at 211 (Holmes, J., dissenting) ("Congress long ago established the Smithsonian Institution, to question which would be to lay hands on the Ark of the Covenant"). The GPO's involvement in executive branch printing is also supported by a substantial historical pedigree, see Joint Res. No. 25, 36th Cong., 1st Sess., 12 Stat. 117 (1860), but in the twentieth century the executive branch has repeatedly been compelled to resist congressional attempts to empower the GPO to exercise genuine discretion over executive decisions.(127) The review authority of the Librarian of Congress over the Copyright Arbitration Royalty Panel, see 17 U.S.C. §§ 801-803, is permissible because the Librarian's tenure is not protected by an explicit for-cause removal limitation, and we therefore infer that the President has at least the formal power to remove the Librarian at will.(128) We note that the historical lineage of, and long-standing acquiescence of the Presidents in, these legislative agencies and most of their activities are important to our conclusion that those activities are constitutionally permissible: we think it highly doubtful that Congress constitutionally could create new legislative agencies with operational powers, or afford existing agencies novel powers, with respect to executive officials or private persons.

----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: <CONLAWPROF at lists.ucla.edu>
Sent: Friday, April 07, 2006 6:08 PM
Subject: Smithsonian, Appointments Clause, and Incompatibility Clause

John raises a very interesting First Amendment question, but I
wanted to ask a different constitutional question (and it is sincerely a
question, to which there may well be a settled and obvious answer that I
just don't know, since I haven't studied these issues much):  If the
Smithsonian is indeed a governmental or governmentalish organization,
then wouldn't the Board of Regents staffing violate the provision that
"no Person holding any Office under the United States, shall be a Member
of either House during his Continuance in Office"?  Also, would a
statutory provision mandating that certain offices on the Board of
Regents be held by particular statutorily designated officials violate
the Appointments Clause, since it would be tantamount to a Congressional
appointment of executive officers?

Eugene

John Noble writes:

Note that the Smithsonian was established by federal legislation. By
law, its Board of Regents includes the Chief Justice (Chancellor), the
Vice-President, 3 members of the Senate, and 3 members of the House,
accounting for 8 of its 17 Regents.
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20060407/7be7d059/attachment.html