Thursday, May 03, 2007

Attorney General


G: Tell me about delegation of Presidential authority?

T: I've been trying to figure that out myself. Here's the main federal statute that governs the president's general authorization to delegate functions. Feel free to follow the links to the source documents.

Title 3, United States Code:

§ 301. General authorization to delegate functions; publication of delegations:

The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President
(1) any function which is vested in the President by law, or

(2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President:
G: So, the President can delegate to any head of a department or agency who has to be nominated and approved by the Senate. Is that right?

T: That is right.

G: So it sounds like the President is allowed to delegate authority to the Attorney General.

T: Right. But there's more. Read on.
Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions. Such designation and authorization shall be in writing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part.
G: So this part says that even if the President delegates his authority, he's still ultimately responsible for the decisions that are made. Do I have that right?

T: Yes.

G: And it has to be in writing, published in the Federal Register.

T: Yes. In the form of Executive Orders.

G: And the delegation may be to someone other than a department or agency head, so long as the delegee is also required to be appointed by and with the advice and consent of the Senate. Right?

T: Right. You are reading 3 USC § 301 correctly.

See Memorandum for Richard W. McLaren, Assistant Attorney General, Antitrust Division, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Revision of Proclamation 3279 (Oil Import Controls) and Implementing Regulations at 1 (Jan. 4, 1971), cited in this Nov. 5, 2001 AG Opinion ("When the President uses [3 USC § 301] to delegate a function, we have concluded that the power may be redelegated only to officials who occupy Senate-confirmed positions and would also qualify under the statute to receive delegations directly from the President.")

§ 302. Scope of delegation of functions
The authority conferred by this chapter shall apply to any function vested in the President by law if such law does not affirmatively prohibit delegation of the performance of such function as herein provided for, or specifically designate the officer or officers to whom it may be delegated.
G: So sometimes the law prohibits delegations of presidential functions. And sometimes the law constrains the President's choice of delegee.

T: Correct.

This chapter shall not be deemed to limit or derogate from any existing or inherent right of the President to delegate the performance of functions vested in him by law, and nothing herein shall be deemed to require express authorization in any case in which such an official would be presumed in law to have acted by authority or direction of the President.
G: This is a little more ambiguous, isn't it.

T: Yes. I don't know the scope of this "inherent right" business. Let's look into that separately and update later. I think it goes like this: The President obviously cannot run the whole country by him or herself. The constitutional grant of executive authority implies the ability to make appropriate delegations of authority. This statute imposes a governance framework to control the exercise of the President's authority, but should not be read to limit or derogate the President's authority deriving from the Constitution.

G: Which begs the question of the scope of this inherent delegation authority.

T: It does.

G: And in some circumstances, no express delegation of authority is required?

T: The statute contemplates circumstances in which it would be presumed as a matter of law that an executive function was performed pursuant to an appropriate delegation of presidential authority. I don't know off-hand any examples of this. That's another thing we should look at.

§ 303. Definitions
As used in this chapter, the term “function” embraces any duty, power, responsibility, authority, or discretion vested in the President or other officer concerned, and the terms “perform” and “performance” may be construed to mean “exercise.”


Title 28, United States Code

§ 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.

§ 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 ....

[with a few exceptions for the functions of administrative law judges and Federal Prison Industries, Inc., aka UNICOR]
§ 510. Delegation of authority
The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

Title 28, Code of Federal Regulations (Judicial Administration)

§ 0.15 Deputy Attorney General.
(h) Notwithstanding paragraphs (a) and (b) of this section [which allow delegation and redelegation of the AG's authority], authority to take final action in matters pertaining to the appointment, employment, pay, separation, and general administration of the following Department employees is reserved to the Attorney General:

(1) Employees in the Offices of the Attorney General and the Deputy Attorney General;

(2) Employees appointed to a Schedule C position established under 5 CFR part 213, or to a position that meets the same criteria as a Schedule C position [i.e., positions of a confidential or policy-determining nature]; and

(3) Any Senior Executive Service position in which the incumbent serves under other than a career appointment.

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