448 U.S. 607 (1980)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

[610] George H. Cohen argued the cause for petitioner in No. 78-911. With him on the briefs were Robert M. Weinberg, J. Albert Woll, Laurence Gold, Elliot Bredhoff, and George Kaufmann. William Alsup argued the cause for petitioner in No. 78-1036. With him on the briefs were Solicitor General McCree, Deputy Solicitor General Easterbrook, Benjamin W. Mintz, and Dennis K. Kade.

Edward W. Warren argued the cause for respondents American Petroleum Institute et al. in both cases. With him on the brief were Stark Ritchie, Martha Beauchamp, Neil J. King, [611] John H. Pickering, Robert R. Bonczek, John F. Dickey, Robert L. Ackerly, and Harold B. Scoggins, Jr. Charles F. Lettow argued the cause for respondents Rubber Manufacturers Association, Inc., et al. in both cases. With him on the brief was John C. Murphy, Jr.^[2]

MR. JUSTICE STEVENS announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and MR. JUSTICE STEWART joined and in Parts, I, II, III-A, III-B, III-C, and III-E of which MR. JUSTICE POWELL joined.

The Occupational Safety and Health Act of 1970 (Act), 84 Stat. 1590, 28 U. S. C. § 651 et seq., was enacted for the purpose of ensuring safe and healthful working conditions for every working man and woman in the Nation. This litigation concerns a standard promulgated by the Secretary of Labor to regulate occupational exposure to benzene, a substance which has been shown to cause cancer at high exposure levels. The principal question is whether such a showing is a sufficient basis for a standard that places the most stringent limitation on exposure to benzene that is technologically and economically possible.

The Act delegates broad authority to the Secretary to promulgate different kinds of standards. The basic definition [612] of an "occupational safety and health standard" is found in § 3 (8), which provides:

"The term `occupational safety and health standard' means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 84 Stat. 1591, 28 U. S. C. § 652 (8).

Where toxic materials or harmful physical agents are concerned, a standard must also comply with § 6 (b) (5), which provides:

"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. Development of standards under this subsection shall be based upon research, demonstrations, experiments, and such other information as may be appropriate. In addition to the attainment of the highest degree of health and safety protection for the employee, other considerations shall be the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws." 84 Stat. 1594, 28 U. S. C. § 655 (b) (5).^[3]

[613] Wherever the toxic material to be regulated is a carcinogen, the Secretary has taken the position that no safe exposure level can be determined and that § 6 (b) (5) requires him to set an exposure limit at the lowest technologically feasible level that will not impair the viability of the industries regulated. In this case, after having determined that there is a casual connection between benzene and leukemia (a cancer of the white blood cells), the Secretary set an exposure limit on airborne concentrations of benzene of one part benzene per million parts of air (1 ppm), regulated dermal and eye contact with solutions containing benzene, and imposed complex monitoring and medical testing requirements on employers whose workplaces contain 0.5 ppm or more of benzene. 29 CFR §§ 1910.1028 (c), (e) (1979).

On pre-enforcement review pursuant to 29 U. S. C. § 655 (f), the United States Court of Appeals for the Fifth Circuit held the regulation invalid. American Petroleum Institute v. OSHA, 581 F. 2d 493 (1978). The court concluded that the Occupational Safety and Health Administration (OSHA)^[4] had exceeded its standard-setting authority because it had not shown that the new benzene exposure limit was "reasonably necessary or appropriate to provide safe or healthful employment" as required by § 3 (8),^[5] and because § 6 (b) (5) [614] does "not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of costs."^[6] Reading the two provisions together, the Fifth Circuit held that the Secretary was under a duty to determine whether the benefits expected from the new standard bore a reasonable relationship to the costs that it imposed. Id., at 503. The court noted that OSHA had made an estimate of the costs of compliance, but the record lacked substantial evidence of any discernible benefits.^[7]

We agree with the Fifth Circuit's holding that § 3 (8) requires the Secretary to find, as a threshold matter, that the [615] toxic substance in question poses a significant health risk in the workplace and that a new, lower standard is therefore "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." Unless and until such a finding is made, it is not necessary to address the further question whether the Court of Appeals correctly held that there must be a reasonable correlation between costs and benefits, or whether, as the federal parties argue, the Secretary is then required by § 6 (b) (5) to promulgate a standard that goes as far as technologically and economically possible to eliminate the risk.

Because these are unusually important cases of first impression, we have reviewed the record with special care. In this opinion, we (1) describe the benzene standard, (2) analyze the Agency's rationale for imposing a 1 ppm exposure limit, (3) discuss the controlling legal issues, and (4) comment briefly on the dermal contact limitation.

I

Benzene is a familiar and important commodity. It is a colorless, aromatic liquid that evaporates rapidly under ordinary atmospheric conditions. Approximately 11 billion pounds of benzene were produced in the United States in 1976. Ninety-four percent of that total was produced by the petroleum and petrochemical industries, with the remainder produced by the steel industry as a byproduct of coking operations. Benzene is used in manufacturing a variety of products including motor fuels (which may contain as much as 2% benzene), solvents, detergents, pesticides, and other organic chemicals. 43 Fed. Reg. 5918 (1978).

The entire population of the United States is exposed to small quantities of benzene, ranging from a few parts per billion to 0.5 ppm, in the ambient air. Tr. 1029-1032. Over one million workers are subject to additional low-level exposures as a consequence of their employment. The majority of these employees-work in gasoline service stations, benzene [616] production (petroleum refineries-and coking operations), chemical processing, benzene transportation, rubber manufacturing, and laboratory operations.^[8]

Benzene is a toxic substance. Although it could conceivably cause harm to a person who swallowed or touched it, the principal risk harm comes from inhalation of benzene vapors. When these vapors are inhaled, the benzene diffuses through the lungs and is quickly absorbed into the blood. [617] Exposure to high concentrations produces an almost immediate effect on the central nervous system. Inhalation of concentrations of 20,000 ppm can be fatal within minutes; exposures in the range of 250 to 500 ppm can cause vertigo, nausea, and other symptoms of mild poisoning. 43 Fed. Reg. 5921 (1978). Persistent exposures at levels above 25-40 ppm may lead to blood deficiencies and diseases of the blood-forming organs, including aplastic anemia, which is generally fatal.

Industrial health experts have long been aware that exposure to benzene may lead to various types of nonmalignant diseases. By 1948 the evidence connecting high levels of benzene to serious blood disorders had become so strong that the Commonwealth of Massachusetts imposed a 35 ppm limitation on workplaces within its jurisdiction. In 1969 the American national Standards Institute (ANSI) adopted a national consensus standard of 10 ppm averaged over an 8-hour period with a ceiling concentration of 25 ppm for 10-minute periods or a maximum peak concentration of 50 ppm. Id., at 5919. In 1971, after the Occupational Safety and Health Act was passed, the Secretary adopted this consensus standard as the federal standard, pursuant to 29 U. S. C. § 655 (a).^[9]

[618] As early as 1928, some health experts theorized that there might also be a connection between benzene in the workplace and leukemia.^[10] In the late 1960's and early 1970's a number of epidemiological studies were published indicating that workers exposed to high concentrations of benzene were subject to a significantly increased risk of leukemia.^[11] In a 1974 report recommending a permanent standard for benzene, the National Institute for Occupational Safety and Health [619] (NIOSH), OSHA's research arm,^[12] noted that these studies raised the "distinct possibility" that benzene caused leukemia. But, in light of the fact that all known cases had occurred at very high exposure levels, NIOSH declined to recommend a change in the 10 ppm standard, which it considered sufficient to protect against nonmalignant diseases. NIOSH suggested that further studies were necessary to determine conclusively whether there was a link between benzene and leukemia and, if so, what exposure levels were dangerous.^[13]

Between 1974 and 1976 additional studies were published which tended to confirm the view that benzene can cause leukemia, at least when exposure levels are high.^[14] In an [620] August 1976 revision of its earlier recommendation, NIOSH stated that these studies provided "conclusive" proof of a causal connection between benzene and leukemia. 1 Record. Ex. 2-5 p. 100. Although it acknowledged that none of the intervening studies had provided the dose-response data it had found lacking two years earlier, id., at 9, NIOSH nevertheless recommended that the exposure limit be set as low as possible. As a result of this recommendation, OSHA contracted with a consulting firm to do a study on the costs to industry of complying with the 10 ppm standard then in effect or, alternatively, with whatever standard would be the lowest feasible. Tr. 505-506.

In October 1976, NIOSH sent another memorandum to OSHA, seeking acceleration of the rulemaking process and "strongly" recommending the issuance of an emergency temporary standard pursuant to § 6 (c) of the Act, 29 U. S. C. § 655 (c),^[15] for benzene and two other chemicals believed to [621] be carcinogens. NIOSH recommended that a 1 ppm exposure limit be imposed for benzene.^[16] 1 Record, Ex. 2-6. Apparently because of the NIOSH recommendation, OSHA asked its consultant to determine the cost of complying with a 1 ppm standard instead of with the "minimum feasible" standard. Tr. 506-507. It also issued voluntary guidelines for benzene, recommending that exposure levels be limited to 1 ppm on an 8-hour time-weighted average basis wherever possible. 2 Record, Ex. 2-44.

In the spring of 1976, NIOSH had selected two Pliofilm plants in St. Marys and Akron, Ohio, for an epidemiological study of the link between leukemia and benzene exposure. In April 1977, NIOSH forwarded an interim report to OSHA indicating at least a fivefold increase in the expected incidence of leukemia for workers who had been exposed to benzene [622] at the two plants from 1940 to 1949.^[17] The report submitted to OSHA erroneously suggested that exposures in the two plants had generally been between zero and 15 ppm during the period in question.^[18] As a result of this new evidence [623] and the continued prodding of NIOSH, 1 Record, Ex. 2-7, OSHA did issue an emergency standard, effective May 21, 1977, reducing the benzene exposure limit from 10 ppm to 1 ppm, the ceiling for exposures of up to 10 minutes from 25 ppm, and eliminating the authority for peak concentrations of 50 ppm. 42 Fed. Reg. 22516 (1977). In its explanation accompanying the emergency standard, OSHA stated that benzene had been shown to cause leukemia at exposures below 25 ppm and that, in light of its consultant's report, it was feasible to reduce the exposure limit to 1 ppm. Id., at 22517, 22521.

On May 19, 1977, the Court of Appeals for the Fifth Circuit entered a temporary restraining order preventing the emergency standard from taking effect. Thereafter, OSHA abandoned its efforts to make the emergency standard effective and instead issued a proposal for a permanent standard patterned almost entirely after the aborted emergency standard Id., at 27452.

In its published statement giving notice of the proposed permanent standard, OSHA did not ask for comments as to whether or not benzene presented a significant health risk at exposures of 10 ppm or less. Rather, it asked for comments as to whether 1 ppm was the minimum feasible exposure limit.^[19]Ibid. As OSHA's Deputy Director of Health Standards, Grover Wrenn, testified at the hearing, this formulation [624] of the issue to be considered by the Agency was consistent with OSHA's general policy with respect to carcinogens.^[20] Whenever a carcinogen is involved, OSHA will presume that no safe level of exposure exists in the absence of clear proof establishing such a level and will accordingly set the exposure limit at the lowest level feasible.^[21] The proposed 1 ppm exposure [625] limit in this case thus was established not on the basis of a proven hazard at 10 ppm. but rather on the basis of "OSHA'S best judgment at the time of the proposal of the feasibility of compliance with the proposed standard by the [a]ffected industries." Tr. 30. Given OSHA's cancer policy, it was in face irrelevant whether there was any evidence at all of a leukemia risk at 10 ppm. The important point was that there was no evidence that there was not some risk, however small, at the level. The fact that OSHA did not ask for comments on whether there was a safe level of exposure for benzene was indicative of its further view that a demonstration of such absolute safety simply could not be made.^[22]

Public hearings were held on the proposed standard, commencing on July 19, 1977. The final standard was issued on February 10, 1978. 29 CFR § 1910.1028 (1979).^[23] In its final form, the benzene standard is designed to protect workers from whatever hazards are associated with low-level benzene [626] exposures by requiring to monitor workplaces to determine the level of exposure, to provide medical examinations when the level rises above 0.5 ppm. and to institute whatever engineering or other controls are necessary to keep exposures at or below 1 ppm.

In the standard as originally proposed by OSHA, the employer's duty to monitor, keep records, and provide medical examinations arose whenever any benzene was present in a workplace covered by the rule.^[24] Because benzene is omni-present in small quantities, NIOSH and the President's Council on Wage and Price Stability recommended the use of an "action level" to trigger monitoring and medical examination requirements. Tr. 1030-1032; App. 121-133. OSHA accepted this recommendation, providing under the final standard that, if initial monitoring discloses benzene concentrations below 0.5 ppm averaged over an 8-hour work day, no further action is required unless there is a change in the company's practices.^[25] If exposures are above the action [627] level, but below the 1 ppm exposure limit, employers are required to monitor exposure levels on a quarterly basis and to provide semiannual medical examinations for their exposed employees. Neither the concept of an action level, nor the specific level selected by OSHA, is challenged in this proceeding.

Whenever initial monitoring indicates that employees are subject to airborne concentrations of benzene above 1 ppm averaged over an 8-hour workday, with a ceiling of 5 ppm for any 15-minute period, employers are required to modify their plants or institute work practice controls to reduce exposures within permissible limits. Consistent with OSHA's general policy, the regulation does not allow respirators to be used if engineering modifications are technologically feasible.^[26] Employers in this category are also required to perform monthly monitoring so long as their workplaces remain above 1 ppm, provide semiannual medical examinations to exposed workers, post signs in and restrict access to "regulated areas" where the permissible exposure limit is exceeded, and conduct employee training programs where necessary.

The standard also places strict limits on exposure to liquid [628] benzene. As originally framed, the standard totally prohibited any skin or eye contact with any liquid containing any benzene. Ultimately, after the standard was challenged, OSHA modified this prohibition by excluding liquids containing less than 0.5% benzene. After three years, that exclusion will be narrowed to liquids containing less than 0.1% benzene.

The permanent standard is expressly inapplicable to the storage, transportation, distribution, sale, or use of gasoline or other fuels subsequent to discharge from bulk terminals.^[27] This exception is particularly significant in light of the fact that over 795,000 gas station employees, who are exposed to an average of 102,700 gallons of gasoline (containing up to 2% benzene) annually, are thus excluded from the protection of the standard.^[28]

As presently formulated, the benzene standard is an expensive way of providing some additional protection for a relatively small number of employees. According to OSHA's figures, the standard will require capital investments in engineering controls of approximately $266 million, first-year operating costs (for monitoring, medical testing, employee training, and respirators) of $187 million to $205 million and [629] recurring annual costs of approximately $34 million.^[29] 43 Fed. Reg. 5934 (1978). The figures outlined in OSHA's explanation of the costs of compliance to various industries indicate that only 35,000 employees would gain any benefit from the regulation in terms of a reduction in their exposure to benzene.^[30] Over two-thirds of these workers (24,450) are employed in the rubber-manufacturing industry. Compliance costs in that industry are estimated to be rather low with no capital costs and initial operating expenses estimated at only $34 million ($1,390 per employee); recurring annual costs would also be rather low, totaling less than $1 million. By contrast, the segment of the petroleum refining industry that produces benzene would be required to incur $24 million in capital costs and $600,000 in first-year operating expenses to provide additional protection for 300 workers ($82,000 per employee), while the petrochemical industry would be required to incur $20.9 million in capital costs and $1 million in initial operating expenses for the benefit of 552 employees ($39,675 per employee).^[31]Id., at 5936-5938.

[630] Although OSHA did not quantify the benefits to each category of worker in terms of decreased exposure to benzene, it appears from the economic impact study done at OSHA's direction that those benefits may be relatively small. Thus, although the current exposure limit is 10 ppm, the actual exposures outlined in that study are often considerably lower. For example, for the period 1970-1975 the petrochemical industry reported that, out of a total of 496 employees exposed to benzene, only 53 were exposed to levels between 1 and 5 ppm and only 7 (all at the same plant) were exposed to between 5 and 10 ppm. 1 Economic Impact Statement, p. 4-6, Table 4-2, 11 Record, Ex. 5A, p. 4-6, Table 4-2. See also id., Tables 4.3-4.8 (indicating sample exposure levels in various industries).

II

The critical issue at this point in the litigation is whether the Court of Appeals was correct in refusing to enforce the 1 ppm exposure limit on the ground that it was not supported by appropriate findings.^[32]

[631] Any discussion of the 1 ppm exposure limit must, of course, being with the Agency's rationale for imposing that limit.^[33] The written explanation of the standard fills 184 pages of the printed appendix. Much of it is devoted to a discussion of the voluminous evidence of the adverse effects of exposure to benzene at levels of concentration well above 10 ppm. This discussion demonstrates that there is ample justification for regulating occupational exposure to benzene and that the prior limit of 10 ppm, with a ceiling of 25 ppm (or a peak of 50 ppm) was reasonable. It does not, however, provide direct support for the Agency's conclusion that the limit should be reduced from 10 ppm to 1 ppm.

The evidence in the administrative record of adverse effects of benzene exposure at 10 ppm is sketchy at best. OSHA noted that there was "no dispute" that certain nonmalignant blood disorders, evidenced by a reduction in the level of red or white cells or platelets in the blood, could result from exposures of 25-40 ppm. It then stated that several studies had indicted that relatively slight changes in normal blood values could result from exposures below 25 ppm and perhaps below 10 ppm. OSHA did not attempt to make any estimate based on these studies of how significant the risk of nonmalignant disease would be at exposures of 10 ppm of less.^[34] Rather, it stated that because of the lack of data concerning the linkage between low-level exposures and blood abnormalities, it was impossible to construct a dose-response [632] curve at this time.^[35] OSHA did conclude, however, that the studies demonstrated that the current 10 ppm exposure limit was inadequate to ensure that no single worker would suffer a nonmalignant blood disorder as a result of benzene exposure. Nothing that it is "customary" to set a permissible exposure limit by applying a safety factor 10-100 to the lowest level at which adverse effects had been observed, the Agency stated that the evidence supported the conclusion that the limit should be set at a point "substantially less than 10 ppm" even if benzene's leukemic effects were not considered. 43 Fed. Reg. 5924-5925 (1978). OSHA did not state, however, that the nonmalignant effects of benzene exposure justified a reduction in the permissible exposure limit to 1 ppm.^[36]

OSHA also noted some studies indicating an increase in chromosomal aberrations in workers chronically exposed to [633] concentrations of benzene probably less than 25 ppm."^[37] However, the Agency took no definitive position as to what these aberrations meant in terms of demonstrable health effects and stated that no quantitative dose-response relationship had yet been established. Under these circumstances, chromosomal effects were categorized by OSHA as an "adverse biological event of serious concern which may pose or reflect a potential health risk and as such, must be considered in the larger purview of adverse health effects associated with benzene. Id., at 5932-5934.

With respect to leukemia, evidence of an increased risk (i. e., a risk greater than that borne by the general population) due to benzene exposures at or below 10 ppm was even sketchier. Once OSHA acknowledged that the NIOSH study it had relied upon in promulgating the emergency standard did not support its earlier view that benzene had been shown to cause leukemia at concentrations below 25 ppm, see n. 12, supra, there was only one study that provided any evidence of such an increased risk. That study, conducted by the Dow Chemical Co., uncovered three leukemia deaths, versus 0.2 expected deaths, out of a population of 594 workers; it appeared that the three workers had never been exposed to more than 2 to 9 ppm of benzene. The authors of the study, however, concluded that it could not be viewed as proof of a relationship between low-level benzene exposure and leukemia because all three workers had probably been occupationally exposed to a number of other potentially carcinogenic chemicals at other points in their careers and because no leukemia deaths had been uncovered among workers who had been exposed to much higher levels of benzene. In its explanation of the permanent standard, OSHA stated that the possibility that these three leukemias had been caused by benzene exposure could not be [634] ruled out and that the study, although not evidence of an increased risk of leukemia at 10 ppm, was therefore "consistent with the findings of many studies that there is an excess leukemia risk among benzene exposed employees." 43 Fed. Reg. 5928 (1978). The Agency made to finding that the Dow study, any other empirical evidence, or any opinion testimony demonstrated that exposure to benzene at or below the 10 ppm level had ever in fact caused leukemia. See 581 F. 2d, at 503, where the Court of Appeals noted that OSHA was "unable to point to any empirical evidence documenting a leukemia risk at 10 ppm. . . ."

In the end OSHA's rationale for lowering the permissible exposure limit to 1 ppm was based, not on any finding that leukemia has ever been caused by exposure to 10 ppm of benzene and that it will not be caused by exposure to 1 ppm, but rather on a series of assumptions indicating that some leukemias might result from exposure to 10 ppm and that the number of cases might be reduced by reducing the exposure level to 1 ppm. In reaching that result, the Agency first unequivocally concluded that benzene is a human carcinogen.^[38] Second, it concluded that industry had failed to prove that there is a safe threshold level of exposure to benzene below which no excess leukemia cases would occur. In reaching this conclusion OSHA rejected industry contentions that certain epidemiological studies indicating no excess risk of leukemia among workers exposed at levels below 10 ppm were sufficient to establish that the threshold level of safe exposure was at or above [635] 10 ppm.^[39] It also rejected an industry witness' testimony that a dose-response curve could be constructed on the basis of the reported epidemiological studies and that this curve indicated that reducing the permissible exposure limit from 10 to 1 ppm would prevent at most one leukemia and one other cancer death every six years.^[40]

Third, the Agency applied its standard policy with respect to carcinogens.^[41] concluding that, in the absence of definitive [636] proof of a safe level, it must be assumed that any level above zero presents some increased risk of cancer.^[42] As the federal parties point out in their brief, there are a number of scientists and public health specialists who subscribe to this view, theorizing that a susceptible person may contract cancer from the absorption of even one molecule of a carcinogen like benzene. Brief for Federal Parties 18-19.^[43]

[637] Fourth, the Agency reiterated its view of the Act, stating that it was required by § 6 (b) (5) to set the standard either at the level that has been demonstrated to be safe or at the lowest level feasible, whichever is higher. If no safe level is established, as in this case, the Secretary's interpretation of the statute automatically leads to the selection of an exposure limit that is the lowest feasible.^[44] Because of benzene's importance to the economy, no one has ever suggested that it would be feasible to eliminate its use entirely, or to try to limit exposures to the small amounts that are omni-present. Rather, the Agency selected 1 ppm as a workable exposure level, see n. 14, supra, and then determined that compliance with that level was technologically feasible and that "the economic impact of . . . [compliance] will not be such as to threaten the financial welfare of the affected firms or the general economy." 43 Fed. Reg. 5939 (1978). It therefore held that 1 ppm was the minimum feasible exposure level within the meaning of § 6 (b) (5) of the Act.

Finally, although the Agency did not refer in its discussion of the pertinent legal authority to any duty to identify the anticipated benefits of the new standard, it did conclude that some benefits were likely to result from reducing the exposure limit from 10 ppm to 1 ppm. This conclusion was based, again, not on evidence, but rather on the assumption that the risk of leukemia will decrease as exposure levels decrease. Although the Agency had found it impossible to construct a dose-response curve that would predict with any accuracy the [638] number of leukemias that could be expected to result from exposures at 10 ppm, at 1 ppm, or at any intermediate level, it nevertheless "determined that the benefits of the proposed standard are likely to be appreciable."^[45] 43 Fed. Reg. 5941 (1978). In light of the Agency's disavowal of any ability to determine the numbers of employees likely to be adversely affected by exposures of 10 ppm, the Court of Appeals held this finding to be unsupported by the record. 581 F. 2d, at 503.^[46]

It is noteworthy that a no point in its lengthy explanation did the Agency quote or even cite § 3 (8) of the Act. It made no finding that any of the provisions of the new standard were "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." Nor did it allude to the possibility that any such finding might have been appropriate.

[639] III

Our resolution of the issues in these cases turns, to a large extent, on the meaning of and the relationship between § 3 (8), which defines a health and safety standard as a standard that is "reasonably necessary and appropriate to provide safe or healthful employment," and § 6 (b) (5), which directs the Secretary in promulgating a health and safety standard for toxic materials to "set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity. . . ."

In the Government's view, § 3 (8)'s definition of the term "standard" has no legal significance or at best merely requires that a standard not be totally irrational. It takes the position that § 6 (b) (5) is controlling and that it requires OSHA to promulgate a standard that either gives an absolute assurance of safety for each and every worker or reduces exposures to the lowest level feasible. The Government interprets "feasible" as meaning technologically achievable at a cost that would not impair the viability of the industries subject to the regulation. The respondent industry representatives, on the other hand, argue that the Court of Appeals was correct in holding that the "reasonably necessary and appropriate" language of § 3 (8), along with the feasibility requirement of § 6 (b) (5), requires the Agency to quantify both the costs and the benefits of a proposed rule and to conclude that they are roughly commensurate.

In our view, it is not necessary to decide whether either the Government or industry is entirely correct. For we think it is clear that § 3 (8) does apply to all permanent standards promulgated under the Act and that it requires the Secretary, before issuing any standard, to determine that it is reasonably necessary and appropriate to remedy a significant risk of material health impairment. Only after the Secretary has made the threshold determination that such a risk exists [640] with respect to a toxic substance, would it be necessary to decide whether § 6 (b) (5) requires him to select the most protective standard he can consistent with economic and technological feasibility, or whether, as respondents argue, the benefits of the regulation must be commensurate with the costs of its implementation. Because the Secretary did not make the required threshold finding in these cases, we have no occasion to determine whether costs must be weighed against benefits in an appropriate case.

A

Under the Government's view, § 3 (8), if it has any substantive content at all,^[47] merely requires OSHA to issue standards [641] that are reasonably calculated to produce a safer or more healthy work environment. Tr. of Oral Arg. 18, 20. Apart from this minimal requirement of rationality, the Government argues that § 3 (8) imposes no limits on the Agency's power, and thus would not prevent it from requiring employers to do whatever would be "reasonably necessary" to eliminate all risks of any harm from their workplaces.^[48] With respect to toxic substances and harmful physical agents, the Government takes an even more extreme position. Relying on § 6 (b) (5)'s direction to set a standard "which most adequately assures . . . that no employee will suffer material impairment of health or functional capacity," the Government contends that the Secretary is required to impose standards that either guarantee workplaces that are free from any risk of material health impairment, however small, or that come as close as possible to doing so without ruining entire industries.

If the purpose of the statute were to eliminate completely and with absolute certainty any risk or serious harm, we would agree that it would be proper for the Secretary to interpret §§ 3 (8) and 6 (b) (5) in this fashion. But we think it is clear that the statute was not designed to require employers to provide absolutely risk-free workplaces whenever it is technologically feasible to do so, so long as the cost is not great enough to destroy an entire industry. Rather, both the language and structure of the Act, as well as its legislative history, indicate that it was intended to require the elimination, as far as feasible, of significant risks of harm.

[642] B

By empowering the Secretary to promulgate standards that are "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." the Act implies that, before promulgating any standard, the Secretary must make a finding that the workplaces in question are not safe. But "safe" is not equivalent of "risk-free." There are many activities that we engage in every day—such as driving a car or even breathing city air—that entail some risk of accident or material health impairment; nevertheless, few people would consider these activities "unsafe." Similarly, a workplace can hardly be considered "unsafe" unless it threatens the workers with a significant risk of harm.

Therefore, before he can promulgate any permanent health or safety standard, the Secretary is required to make threshold finding that a place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices. This requirement applies to permanent standards promulgated pursuant to § 6 (b) (5), as well as to other types of permanent standards. For there is no reason why § 3 (8)'s definition of a standard should not be deemed incorporated by reference into § 6 (b) (5). The standards promulgated pursuant to § 6 (b) (5) are just one species of the genus of standards governed by the basic requirement. That section repeatedly uses the term "standard" without suggesting any exception from, or qualification of, the general definition; on the contrary, it directs the Secretary to select "the standard"—that is to say, one of various possible alternatives that satisfy the basic definition in § 3 (8)—that is most protective.^[49] Moreover, requiring the [643] Secretary to make a threshold finding of significant risk is consistent with the scope of the regulatory power granted to him by § 6 (b) (5), which empowers the Secretary to promulgate standards, not for chemicals and physical agents generally, but for "toxic materials" and "harmful physical agents."^[50]

This interpretation of §§ 3 (8) and 6 (b) (5) is supported by the other provisions of the Act. Thus, for example § 6 (g) provides in part that

"[i]n determining the priority for establishing standards under this section, the Secretary shall give due regard to the urgency of the need for mandatory safety and health standards for particular industries trades, [644] crafts, occupations, business, workplaces or work environments."

The Government has expressly acknowledged that this section requires the Secretary to undertake some cost-benefit analysis before he promulgates any standard, requiring the elimination of the most serious hazards first.^[51] If such an analysis must precede the promulgation of any standard, it seems manifest that Congress intended, at a bare minimum, that the Secretary find a significant risk of harm and therefore a probability of significant benefits before establishing a new standard.

Section 6 (b) (8) lends additional support to this analysis. That subsection requires that, when the Secretary substantially alters an existing consensus standard, he must explain how the new rule will "better effectuate" the purposes of the Act.^[52] If this requirement was intended to be more than a meaningless formality, it must be read to impose upon the Secretary the duty to find that an existing national consensus standard is not adequate to protect workers from a continuing and significant risk of harm. Thus, in this case, the Secretary was required to find that exposures at the current permissible [645] exposure level of 10 ppm present a significant risk of harm in the workplace.

In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry that would result from the Government's view of §§ 3 (8) and 6 (b) (5), coupled with OSHA's cancer policy. Expert testimony that a substance is probably a human carcinogen—either because it has caused cancer in animals or because individuals have contracted cancer following extremely high exposures—would justify the conclusion that the substance poses some risk of serious harm no matter how minute the exposure and no matter how many experts testified that they regarded the risk as insignificant. That conclusion would in turn justify pervasive regulation limited only by the constrain of feasibility. In light of the fact that there are literally thousands of substances used in the workplace that have been identified as carcinogens or suspect carcinogens, the Government's theory would give OSHA power to impose enormous costs that might produce little, if any, discernible benefit.^[53]

[646] If the Government were correct in arguing that neither § 3 (8) nor § 6 (b) (5) requires that the risk from a toxic substance be quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way, the statute would make such a "sweeping delegation of legislative power" that it might be unconstitutional under the Court's reasoning in A. L. A. Schechter Poultry Crop. v. United States, 295 U. S. 495, 539, and Panama Refining Co. v. Ryan, 293 U. S. 388. A construction of the statute that avoids this kind of open-ended grant should certainly be favored.

C

The legislative history also supports the conclusion that Congress was concerned, not with absolute safety, but with the elimination of significant harm. The examples of industrial hazards referred to in the Committee hearings and debates all involved situations in which the risk was unquestionably significant. For example. the Senate Committee on Labor and Public Welfare noted that byssinosis, a disabling lung disease caused by breathing cotton dust, affected as many as 30% of the workers in carding or spinning rooms in some American cotton mils and that as many as 100,000 active or retired workers were then suffering from the disease. It also noted that statistics indicated that 20,000 out of 50,000 workers who had performed insulation work were likely to die of asbestosis, lung, cancer, or mesothelyioma as a result of breathing asbestos fibers. Another example given of an occupational health hazard that would be controlled by the Act was betanaphthylamine, a "chemical so toxic that any exposure at all is likely to cause the development of bladder cancer over a period of years." S. Rep. No. 91-1282, pp. 3-4 (1970); Legislative History of the Occupational Safety and health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), pp. 143-144 (1971) (hereafter Leg. Hist.).

Moreover, Congress specifically amended § 6 (b) (5) to make [647] it perfectly clear that it does not require the Secretary to promulgate standards that would assure an absolutely risk-free workplace. Section 6 (b) (5) of the initial Committee bill provided that

"[t]he Secretary, in promulgating standards under this subsection, shall set the standard which most adequately and feasibly assures, on the basis of the best available evidence, that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." (Emphasis supplied.) S. 2193, 91st Cong., 2d Sess., p. 39 (1970), Leg. Hist. 242.

On the floor of the Senate, Senator Dominick questioned the wisdom of this provision, stating:

"How in the world are we ever going to live up to that? What are we going to do about a place in Florida where mosquitoes are getting at the employee—perish the thought that there may be mosquitoes in Florida? But there are black flies in Minnesota and Wisconsin. Are we going to say that if employees get bitten by those for the rest of their lives they will not have been done any harm at all? Probably they will not be, but do we know?" 116 Cong. Rec. 36522 (1970), Leg. Hist. 345.

He then offered an amendment deleting the entire subsection.^[54] [648] After discussions with the sponsors of the Committee bill, Senator Dominick revised his amendment. Instead of deleting the first sentence of § 6 (b) (5) entirely, his new amendment limited the application of that subsection to toxic materials and harmful physical agents and changed "any" impairment of health to "material" impairment.^[55] In discussing this change, Senator Dominick noted that the Committee's bill read as if a standard had to "assure that, no matter what anybody was doing, the standard would protect him for the rest of his life against any foreseeable hazard." Such an "unrealistic standard," he stated, had not been intended by the sponsors of the bill. Rather, he explained that the intention of the bill, as implemented by the amendment, was to require the Secretary

"to use his best efforts to promulgate the best available standards, and in so doing, . . . he should take into account that anyone working in toxic agents and physical [649] agents which might be harmful may be subjected to such conditions for the rest of his working life, so that we can get at something which might not be toxic now, if he works in it a short time, but if he works in it the rest of his life might be very dangerous; and we want to make sure that such things are taken into consideration in establishing standards." 116 Cong. Rec., at 37622-37623, Leg. Hist. 502-503.^[56]

Senator Williams, one of the sponsors of the Committee bill, agreed with the interpretation, and the amendment was adopted.

In their reply brief the federal parties argue that the Dominick amendment simply means that the Secretary is not required to eliminate threats of insignificant harm; they argue that § 6 (b) (5) still requires the Secretary to set standards that ensure that not even one employee will be subject to any risk of serious harm—no matter how small that risk may be.^[57] [650] This interpretation is at odds with Congress' express recognition of the futility of trying to make all workplaces totally risk-free. Moreover, not even OSHA follows this interpretation of § 6 (b) (5) to its logical conclusion. Thus, if OSHA is correct that the only no risk level for leukemia due to benzene exposure is zero and if its interpretation of § 6 (b) (5) is correct, OSHA should have set the exposure limit as close to zero as feasible. But OSHA did not go about its task in that way. Rather, it began with a 1 ppm level, selected at least in part to ensure that employers would not be required to eliminate benzene concentrations that were little greater than the so-called "background" exposures experienced by the population at large. See n. 14 supra. Then, despite suggestions by some labor unions that it was feasible for at least some industries to reduce exposures to well below 1 ppm,^[58] OSHA decided to apply the same limit to all, largely as a matter of administrative convenience. 43 Fed. Reg. 5947 (1978).

OSHA also deviated from its own interpretation of § 6 (b) (5) in adopting an action level of 0.5 ppm below which monitoring and medical examinations are not required. In light of OSHA's cancer policy, it must have assumed that some employees would be at risk because of exposures below 0.5 ppm. These employees would thus presumably benefit from medical examinations, which might uncover any benzene-related problems. OSHA's consultant advised the Agency that it was technologically and economically feasible to require that such examinations be provided. Nevertheless, OSHA adopted an action level, largely because the insignificant benefits [651] of giving such examinations and performing the necessary monitoring did not justify the substantial cost.^[59]

OSHA's concessions to practicality in beginning with a 1 ppm exposure limit and using an action level concept simplicity adopt an interpretation of the statute as not requiring regulation of insignificant risks.^[60] It is entirely consistent with this interpretation to hold that the Act also requires the Agency to limit its endeavors in the standard-setting area to eliminating significant risks of harm.

Finally, with respect to the legislative history, it is important to note that Congress repeatedly expressed its concern about allowing the Secretary to have too much power over American industry. Thus, Congress refused to give the Secretary the power to shut down plants unilaterally because of an imminent danger, see Whirlpool Corp. v. Marshall, 445 U. S. 1, and narrowly circumscribed the Secretary's power to issue temporary emergency standards.^[61] This effort by [652] Congress to limit the Secretary's power is not consistent with a view that the mere possibility that some employee some-where in the country may confront some risk of cancer is a sufficient basis for the exercise of the Secretary's power to require the expenditure of hundreds of millions of dollars to minimize that risk.

D

Given the conclusion that the Act empowers the Secretary to promulgate health and safety standards only where a significant risk of harm exists, the critical issue becomes how to define and allocate the burden of proving the significance of the risk in a case such as this, where scientific knowledge is imperfect and the precise quantification of risks is therefore impossible. The Agency's position is that there is substantial evidence in the record to support its conclusion that there is no absolutely safe level for a carcinogen and that, therefore, the burden is properly on industry to prove, apparently beyond a shadow of a doubt, that there is a safe level for benzene exposure. The Agency argues that, because of the uncertainties in this area, any other approach would render it helpless, forcing it to wait for the leukemia deaths that it believes are likely to occur^[62] before taking any regulatory action.

[653] We disagree. As we read the statute, the burden was on the Agency to show, on the basis of substantial evidence, that it is at least more likely than not that long-term exposure to 10 ppm of benzene presents a significant risk of material health impairment. Ordinarily, it is the proponent of a rule or order who has the burden of proof in administrative proceedings. See 5 U. S. C. § 556 (d). In some cases involving toxic substances, Congress has shifted the burden of proving that a particular, substance is safe onto the party opposing the proposed rule.^[63] The fact that Congress did not follow this course in enacting the Occupational Safety and Health Act indicates that it intended the Agency to bear the normal burden of establishing the need for a proposed standard.

In this case OSHA did not even attempt to carry its burden of proof. The closest it came to making a finding that benzene presented a significant risk of harm in the workplace was its statement that the benefits to be derived from lowering the permissible exposure level from 10 to 1 ppm were "likely" to be "appreciable." The Court of Appeals held that this finding was not supported by substantial evidence. Of greater importance, even it were supported by substantial evidence, such a finding would not be sufficient to satisfy the Agency's obligations under the Act.

The inadequacy of the Agency's findings can perhaps be [654] illustrated best by its rejection of industry testimony that a dose-response curve can be formulated on the basis of current epidemiological evidence and that, even under the most conservative extrapolation theory, current exposure levels would cause at most two deaths out of a population of about 30,000 workers every six years. See n. 39, supra. In rejecting this testimony, OSHA made the following statement:

"In the face of the record evidence of numerous actual deaths attributable to benzene-induced leukemia and other fatal blood diseases, OSHA is unwilling to rely on the hypothesis that at most two cancers every six years would be prevented by the proposed standard. By way of example, the Infante study disclosed seven excess leukemia deaths in a population of about 600 people over a 25-year period. While the Infante study involved higher exposures then those currently encountered, the incidence rates found by Infante, together with the numerous other cases reported in the literature of benzene leukemia and other fatal blood diseases, make it difficult for OSHA to rely on the [witness'] hypothesis to assure the statutorily mandated protection of employees. In any event, due to the fact that there is no safe level of exposure to benzene and that it is impossible to precisely quantify the anticipated benefits, OSHA must select the level of exposure which is most protective of exposed employees." 43 Fed. Reg. 5941 (1978).

There are three possible interpretations of OSHA's stated reason for rejecting the witness' testimony: (1) OSHA considered it probable that a greater number of lives would be saved by lowering the standard from 10 ppm; (2) OSHA thought that saving two lives every six yeas in a work force of 30,000 persons is a significant savings that makes it reasonable and appropriate to adopt a new standard' or (3) even if the small number is not significant and even if the savings may be even smaller, the Agency nevertheless believed it had [655] a statutory duty to select the level of exposure that is most protective of the exposed employees if it is economically and technologically feasible to do so. Even if the Secretary did not intend to rely entirely on this third theory, his construction of the statute would make it proper for him to do so. Moreover, he made no express findings of fact that would support his 1 ppm standard on any less drastic theory. Under these circumstances, we can hardly agree with the Government that OSHA discharged its duty under the Act.

Contrary to the Government's contentions, imposing a burden on the Agency of demonstrating a significant risk of harm will not strip if of its ability to regulate carcinogens, nor will it require the Agency to wait for deaths to occur before taking any action. First, the requirement that a "significant" risk be identified is not a mathematical straitjacket. It is the Agency's responsibility to determine, in the first instance, what it considers to be a "significant" risk. Some risks are plainly acceptable and others are plainly unacceptable. If, for example, the odds are one in a billion that a person will die from cancer by taking a drink of chlorinated water, the risk clearly could not be considered significant. On the other hand, if the odds are one in a thousand that regular inhalation of gasoline vapors that are 2% benzene will be fatal, a reasonable person might well consider the risk significant and take appropriate steps to decrease or eliminate it. Although the Agency has no duty to calculate the exact probability of harm, it does have an obligation to find that a significant risk is present before it can characterize a place of employment as "unsafe."^[64]

[656] Second, OSHA is not required to support its finding that a significant risk exists with anything approaching scientific certainty. Although the Agency's findings must be supported by substantial evidence, 29 U. S. C. § 655 (f), § 6 (b) (5) specifically allows the Secretary to regulate on the basis of the "best available evidence." As several Courts of Appeals have held, this provision requires a reviewing court to give OSHA some leeway where its findings must be made n the frontiers of scientific knowledge. See Industrial Union Dept., AFL-CIO v. Hodgson, 162 U. S. App. D. C. 331, 340, 499 F. 2d 467, 476 (1974); Society of the Plastics Industry, Inc. v. OSHA, 509 F. 2d 1301, 1308 (CA2 1975), cert. denied, 421 U. S. 992. Thus, so long as they are supported by a body of reputable scientific thought, the Agency is free to use conservative assumptions in interpreting the data with respect to carcinogens, risking error on the side of overprotection rather than underprotection.^[65]

Finally, the record in this case and OSHA's own rulings on other carcinogens indicate that there are a number of ways in which the Agency can make a rational judgment about the [657] relative significance of the risks associated with exposure to a particular carcinogen.^[66]

It should also be noted that, in setting a permissible exposure level in reliance on less-than-perfect methods, OSHA would have the benefit of a backstop in the form of monitoring [658] and medical testing. Thus, if OSHA properly determined that the permissible exposure limit should be set at 5 ppm, it could still require monitoring and medical testing for employees exposed to lower levels.^[67] By doing so, it could keep a constant check on the validity of the assumptions made in developing the permissible exposure limit, giving it a sound evidentiary basis for decreasing the limit if it was initially set too high.^[68] Moreover, in this way it could ensure that workers who were unusually susceptible to benzene could be removed from exposure before they had suffered any permanent damage.^[69]

E

Because our review of these cases has involved a more detailed examination of the record than is customary, it must [659] be emphasized that we have neither made any factual determinations of our own, nor have we rejected any factual findings made by the Secretary. We express no opinion on what factual findings this record might support either on the basis of empirical evidence or on the basis of expert testimony; nor do we express any opinion on the more difficult question of what factual determinations would warrant a conclusion that significant risks are present which make promulgation of a new standard reasonably necessary or appropriate. The standard must, of course, be supported by the findings actually made by the Secretary, not merely by findings that we believe he might have made.

In this case the record makes it perfectly clear that the Secretary relied squarely on a special policy for carcinogens that imposed the burden on industry of providing the existence of a safe level of exposure, thereby avoiding the Secretary's threshold responsibility of establishing the need for more stringent standards. In so interpreting his statutory authority, the Secretary exceeded his power.

IV

Throughout the administrative proceedings, the dermal contact issue received relatively little attention. In its proposed rule OSHA recommended a total ban o skin and eye contact with liquid benzene on the basis of its policy that "in dealing with a carcinogen, all potential routes of exposure (i. e., inhalation, ingestion, and skin absorption) [should] be limited to the extent feasible." 43 Fed. Reg. 5948 (1978). There was little opposition to this requirement at the hearing on the proposed rule, apparently because the proposed rule also excluded from both the permissible exposure level and the dermal contact ban work operations involving liquid mixtures containing 1% (and after one year, 0.1%) or less benzene.

In its final standard, however, OSHA eliminated the percentage exclusion for liquid benzene, on the ground that there was no predictable correlation between the percentage of benzene [660] in a liquid and the airborne exposure arising from it. See n. 22, supra. Although the extent to which liquid benzene is absorbed through the skin is concealed unknown, OSHA also refused to exempt any liquids, no matter how little benzene they contained, from the ban on dermal contact. In support of this position it stated that there was no evidence to "suggest that the absorption rate depends on the amount of benzene present in the liquid." 43 Fed. Reg. 5948-5949 (1978).

After the permanent standard was promulgated, OSHA received a number of requests from various industries that the percentage exclusion for liquids containing small amounts of benzene be reinstated. Those concerned with airborne exposures argued that they should not be required to monitor workplaces simply because they handled petroleum-based products in which benzene is an unavoidable contaminant. Others concerned with the dermal contact ban made similar arguments. In particular, tire manufacturers argued that it was impossible for them to comply with the ban because gloves cannot be worn during certain tire-building operations in which solvents are used and solvents containing absolutely no benzene are not commercially available.

Because of these requests, OSHA held a new series of hearings and promulgated an amendment to the rule, reinstating the percentage exclusion, but lowering it from the proposed 1% to 0.5%. The Agency did, however, provide for a 3-year grace period before the exclusion dropped to 0.1%, rather than the one year that had originally been proposed. In explaining its amendment, OSHA reiterated its policy with respect to carcinogens, stating that, because there is no absolutely safe level for any type of exposure, exposures by whatever route must be limited to the extent feasible. For airborne exposures, a zero permissible exposure limit had not been feasible. However, in most industries a ban on any dermal contact was feasible since compliance could be achieved simply by the use of protective clothing, such an impermeable [661] gloves. The Agency recognized that the dermal contact ban could present a problem for tire manufacturers, but stated that the percentage exclusion would alleviate the problem, because solvents containing 0.5% or less benzene were available in sufficient quantities. Although it noted that solvents containing 0.1% or less benzene were not then available in quantity, the Agency stated that a 3-year grace period would be sufficient to "allow time for increased production of solvents containing lower amounts of benzene and for development and evaluation of alternative methods of compliance with the standard's dermal provision." Id., at 27968-27969.

The Court of Appeals struck down the dermal contact prohibition on two grounds. First it held that the record did not support a finding that the ban would result in quantifiable benefits in terms of a reduced leukemia risk; therefore, it was not "reasonably necessary" within the meaning of § 3 (8) of the Act. Second, the court held that the Agency's conclusion that benzene may be absorbed through the skin was not based on the best available evidence as required by § 6 (b) (5). 581 F. 2d, at 505-506. On the second ground, the court noted that the evidence on the issue of absorption of benzene through the skin was equivocal, with some studies indicating that it could be absorbed and some indicating that it could not. All of these studies were relatively old and the only expert who had testified on the issue stated that a simple test was now available to determine, with a great deal of accuracy, whether and to what extent absorption will result. In light of § 6 (b) (5), which requires the Agency to promulgate standards on the basis of the "best available evidence" and "the latest available scientific data in the field," the court held that where there is uncontradicted testimony that a simple test will resolve the issue, the Agency is required to acquire that information before "promulgating regulations which would require an established industry to change long-followed work processes that are not demonstrably unsafe." 581 F. 2d, at 508.

[662] While the court below may have been correct in holding that, under the peculiar circumstances of this case, OSHA was required to obtain more information, there is no need for us to reach that issue. For, in order to justify a ban on dermal contact, the Agency must find that such a ban is "reasonably necessary and appropriate" to remove a significant risk of harm from such contact. The Agency did not make such a finding, but rather acted on the basis of the absolute, no-risk policy that it applies to carcinogens. Indeed, on this issue the Agency's position is even more untenable, inasmuch as it was required to assume not only that benzene in small doses is a carcinogen, but also that it can be absorbed through the skin in sufficient amounts to present a carcinogenic risk. These assumptions are not a proper substitute for the findings of a significant risk of harm required by the Act.

The judgment of the Court of Appeals remanding the petition for review to the Secretary for further proceedings is affirmed.

It is so ordered.

MR. CHIEF JUSTICE BURGER, concurring.

These cases press upon the Court difficult unanswered questions on the frontiers of science and medicine. The statute and the legislative history give ambiguous signals as to how the Secretary is directed to operate in this area. The opinion by MR. JUSTICE STEVENS takes on a difficult task to decode the message of the stature as to guidelines for administrative action.

To comply with statutory requirements, the Secretary must bear the burden of "finding" that a proposed health and safety standard is "reasonably necessary or appropriate to provide safe or healthful employment and places of employment." This policy judgment entails the subsidiary finding that the pre-existing standard presents a "significant risk" of material health impairment for a worker who spends his entire employment life in a working environment where exposure [663] remains at maximum permissible levels. The Secretary's factual finding of "risk" must be "quantified sufficiently to enable the Secretary to characterize it as significant in an understandable way." Ante, at 646. Precisely what this means is difficult to say. But because these mandated findings were not made by the Secretary, I agree that the 1 ppm benzene standard must be invalidated. However, I would stress the differing functions of the courts and the administrative agency with respect to such health and safety regulation.

The Congress is the ultimate regulator, and the narrow function of the courts is to discern the meaning of the statute and the implementing regulations with the objective of ensuring that in promulgating health and safety standards the Secretary "has given reasoned consideration to each of the pertinent factors" and has complied with statutory commands. Permian Basin Area Rate Cases, 390 U. S. 747, 792 (1968). Our holding that the Secretary must retrace his steps with greater care and consideration is not to be taken in derogation of the scope of legitimate agency discretion. When the facts and arguments have been presented and duly considered, the Secretary must make a policy judgment as to whether a specific risk of health impairment is significant in terms of the policy objectives of the statute. When he acts in this capacity, pursuant to the legislative authority delegated by Congress, he exercises the prerogatives of the legislature—to focus on only one aspect of a larger problem, or to promulgate regulations that, to some, may appear as imprudent policy or inefficient allocation of resources. The judicial function does not extend to substantive revision of regulatory policy. that function lies elsewhere—in Congressional and Executive oversight or amendatory legislation—although to be sure the boundaries are often ill-defined and indistinct.

Nevertheless, when discharging his duties under the statute, the Secretary is well admonished to remember that a heavy responsibility burdens his authority. Inherent in this statutory scheme is authority to refrain from regulation of [664] insignificant or de minimis risks. See Alabama Power Co. v. Costle, 204 U. S. App. D. C. 51, 88-89, 636 F. 2d 323, 360-361 (1979) (opinion of Leventhal, J.). When the administrative record reveals only scant or minimal risk or material health impairment, responsible administration calls for avoidance of extravagant, comprehensive regulation. Perfect safety is a chimera; regulation must not strangle human activity in the search for the impossible.

Mr. JUSTICE POWELL, concurring in part and concurring in the judgment.

I join Parts I, II, III-A, III-B, III-C, and III-E of the plurality opinion.^[70] The Occupational Safety and Health Administration relied in large part on its "carcinogen policy"— which had not been adopted formally—in promulgating the benzene exposure and dermal contact regulation at issue in these cases.^[71] For the reasons stated by the plurality. I agree that §§ 6(b) (5) and 3 (8) of the Occupational Safety and Health Act of 1970. 29 U. S. C. §§ 655 (b) (5) and 652 (8), must be read together. They required OSHA to make a threshold finding that proposed occupational health standards are reasonably necessary to provide safe workspaces. When OSHA acts to reduce existing national consensus standards, [665] therefore, it must find that (i) currently permissible exposure levels create a significant risk of material health impairment; and (ii) a reduction of those levels would significantly reduce the hazard.

Although I would not rule out the possibility that the necessary findings could rest in part on generic policies properly adopted by OSHA, see McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions; Regulating Carcinogens in EPA and OSHA, 67 Geo. L. J. 729, 755-759 (1979), no properly supported agency policies are before us in these cases.^[72] I therefore agree with the plurality that the regulation is invalid to the extent it rests upon the assumption that exposure to known carcinogens always should be reduced to a level proved to be safe or, if no such level is found, to the lowest level that the affected industry can achieve with available technology.

I

If the disputed regulation were based exclusively on this "carcinogen policy." I also would agree that we need not consider whether the Act requires OSHA to determine that the benefits of a proposed standard are reasonably related to the costs of compliance. Ante, at 615. As the Court of Appeals for the Fifth Circuit recognized, however, OSHA takes the "fall-back position" that its regulation is justified by specific findings based upon the voluminous evidentially record complied in this case. American Petroleum Institute v. OSHA, 581 F. 2d 493, 503. OSHA found, for example, that the number [666] of cancers prevented by reducing permissible exposure levels from 10 ppm to 1ppm "may be appreciable," that "the benefits of the proposed standard are likely to be appreciable," and that the "substantial costs [of the new standard] are justified in light of the hazards," 43 Fed. Reg. 5940-5941 (1978). Thus, OSHA found—at least generally—that the hazards of benzene exposure at currently permissible levels are serious enough to justify an expenditure of hundreds of millions of dollars. For me, that finding necessarily subsumes the conclusion that the health risk is "significant." If OSHA's conclusion is supported by substantial evidence, the threshold requirement discussed in the plurality opinion would be satisfied.

As I read its opinion, the plurality does not consider whether the agency's findings are supported by substantial evidence. The Court of Appeals found them insufficient because OSHA failed "to estimate the extent of expected benefits. . . ." 581 F. 2d, at 504. That court apparently would have required OSHA to supply a specific numerical estimate of benefits derived through mathematical techniques for "risk quantification" or "cost-effectiveness analysis." Id., at 504, n. 23; see Id., at 504-505. I do agree with the Court of Appeals' conclusion that the statute requires quantification of risk in every case.

The statutory preference for the "best available evidence." 29 U. S. C. § 655 (b) (5), implies that OSHA must use the best known techniques for the accurate estimation of risks and benefits when such techniques are available. But neither the statute nor the legislative history suggests that OSHA's hands are tied when reasonable quantification cannot be accomplished by any known methods. See post, at 693 (MARSHALL, J., dissenting). In this litigation, OSHA found that "it is impossible to precisely quantify the anticipated benefits. . . ." 43 Fed. Reg. 5941 (1978). If this finding is supported by substantial evidence, the statute does not prevent the Secretary from finding a significant health hazard on the [667] basis of the weight of expert testimony and opinion. I do not understand the plurality to hold otherwise. See ante, at 662.

For the foregoing reasons, I would not hold that "OSHA did not even attempt to carry its burden of proof" on the threshold question whether exposure to benzene at 10 ppm presents a significant risk to human health. Ante, at 653. In my view, the question is whether OSHA successfully carried its burden on the basis of record evidence. That question in turn reduces to two principal issues. First, is there substantial evidence supporting OSHA's determination that available quantification techniques are too imprecise to permit a reasonable numerical estimate of risks? If not, then OSHA has failed to show that its regulation rests on the "best available evidence." Second, is OSHA's finding of significant risks at current exposure levels supported by substantial evidence? If not, then OSHA has failed to show that the new regulation is reasonably necessary to provide safe and healthful workplaces.

II

Although I regard the question as close, I do not disagree with the plurality's view that OSHA has failed, on this record, to carry its burden of proof on the threshold issues summarized above. But even if one assumes that OSHA properly met this burden, see post, at 697-701, 713-714 (MARSHALL, J., dissenting). I conclude that the statute also requires the agency t o determine that the economic effects of its standard bear a reasonable relationship to the expected benefits. An occupational health standard is neither "reasonably necessary" not "feasible," as required by statute, if ti calls for expenditures wholly disproportionate to the expected health and safety benefits.

OSHA contends that § 6 (b) (5) not only permits but actually requires it to promulgate standards that reduce health risks without regard to economic effects, unless those effects [668] would cause widespread dislocation throughout an entire industry.^[73] Under the threshold test adopted by the plurality today, this authority will exist only with respect to "significant" risks. But the plurality does not reject OSHA's claim that it must reduce such risks without considering economic consequences less serious than massive dislocation. In my view, that claim is untenable.

Although one might wish that Congress had spoken with greater clarity, the legislative history and purposes of the statute do not support OSHA's interpretation of the Act.^[74] [669] It is simply unreasonable to believe that Congress intended OSHA to pursue the desirable goal of risk-free workplaces to the extent that the economic visibility of particular industries— or significant segments thereof—is threatened. As the plurality observes. OSHA itself has not chosen to carry out such a self-defeating policy in all instances. Ante, at 650. If it did. OSHA regulations would impair the ability of American industries to compete effectively with foreign businesses and to provide employment for American workers.^[75]

I therefore would not lightly assume that Congress intended OSHA to require reduction of health risks found to be significant whenever it also finds that the affected industry [670] can bear the costs. See n. 4, supra. Perhaps more significantly. however. OSHA's interpretation of § 6 (b) (5) would force it to regulate in a manner inconsistent with the important health and safety purposes of the legislation we construe today. Thousands of toxic substances present risks that fairly could be characterized as "significant," Cf. ante, at 645, n. 51. Even if OSHA succeeded in selecting the gravest risks for earliest regulation. a standard-setting process that ignored economic considerations would result in a serious misallocation of resources and a lower effective level of safety than could be achieved under standards set with reference to the comparative benefits available at a lower cost.^[76] I would not attribute such an irrational intention to Congress.

In these cases. OSHA did find that the "substantial costs" of the benzene regulations are justified. See supra, at 665-666. But the record before us contains neither adequate documentation of this conclusion, nor any evidence that OSHA weighed the relevant considerations. The agency simply announced its finding of cost-justification without explaining the method by which it determines that the benefits justify the costs and their economic effects. No rational system of regulation can permit its administrators to make policy judgments without explaining how their decisions effectuate the purposes of the governing law, and nothing in the statute authorizes such laxity in these cases.^[77] Since neither the airborne [671] concentration standard nor the dermal contact standard for exposure to benzene satisfies the requirements of the governing statute, I join the Court's judgment affirming the judgment of the Court of Appeals.

MR. JUSTICE REHNQUIST, concurring in the judgment.

The statutory provision at the center of the present controversy, § 6 (b) (5) of the Occupational Safety and Health Act of 1970, states, in relevant part, that the Secretary of Labor

". . . in promulgating standards dealing with toxic materials or harmful physical agents . . . shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 84 Stat. 1594, 29 U. S. C. § 655 (b) (5) (emphasis added).

According to the Secretary, who is one of the petitioners herein, § 6 (b)(5) imposes upon him an absolute duty, in regulating harmful substances like benzene for which no safe level is known, to set the standard for permissible exposure at the lowest level that "can be achieved at bearable cost with available technology." Brief for Federal Parties 57. While the Secretary does not attempt to refine the concept of "bearable cost," he apparently believes that a proposed standard is economically feasible so long as its impact "will not be such as to threaten the financial welfare of the affected firms or the general economy." 43 Fed. Reg. 5939 (1978).

Respondents reply, and the lower court agreed, that § 6 (b) (5) must be read in light of another provision in the [672] same Act, § 3 (8), which defines an "occupational health and safety standard" as

". . . a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 84 Stat. 1591, 29 U. S. C. § 652 (8).

According to respondents, § 6 (b) (5), as tempered by § 3 (8), requires the Secretary to demonstrate that any particular health standard is justifiable on the basis of a rough balancing of costs and benefits.

In considering these alternative interpretations, my colleagues manifest a good deal of uncertainty,, and ultimately divide over whether the Secretary produced sufficient evidence that the proposed standard for benzene will result in any appreciable benefits at all. This uncertainty, I would suggest, is eminently justified, since I believe that this litigation presents the Court with what has to be one of the most difficult issues that could confront a decisionmaker: whether the statistical possibility of future deaths should ever be disregarded in light of the economic costs of preventing those deaths. I would also suggest that the widely varying positions advanced in the briefs of the parties and in the opinions of MR. JUSTICE STEVENS, THE CHIEF JUSTICE, MR. JUSTICE POWELL, and MR. JUSTICE MARSHALL demonstrate, perhaps better than any other fact, that Congress, the governmental body best suited and most obligated to make the choice confronting us in this litigation, has improperly delegated that choice to the Secretary of Labor and, derivatively, to this Court.

I

In his Second Treatise of Civil Government, published in 1690, John Locks wrote that "[t]he power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive [673] grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws and place it in other hands."^[78] Two hundred years later, this Court expressly recognized the existence of and the necessity for limits on Congress' ability to delegate its authority to representatives of the Executive Branch: "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution". Field v. Clark, 143 U. S. 649, 692 (1892).^[79]

The rule against delegation of legislative power is not, however, so cardinal a principle as to allow for no exception. The Framers of the Constitution were practical statesmen, who saw that the doctrine of separation of power was a two-sided coin. James Madison, in Federalist Paper No.48, for example, recognized that while the division of authority among the various branches of government was a useful principle, "the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained." The Federalist No. 48, p. 308 (H. Lodge ed. 1888).

This Court also has recognized that a hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government [674] capable of effectively exercising the substantive powers granted to the various branches by the Constitution. Mr. Chief Justice Taft. Writing for the Court in J. W. Hampton & Co. v. United States, 276 U. S. 394 (1928), noted the practicalities of the balance that has to be struck:

"[T]he rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional filed of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination." Id., at 406.

During the third and fourth decades of this century, this Court within a relatively short period of time struck down several Acts of Congress on the grounds that they exceeded the authority of Congress under the Commerce Clause or under the nondelegation principle of separation of powers, and at the same time struck down state statutes because they violated "substantive" due process or interfered with interstate commerce. See generally R. Jackson, The Struggle for Judicial Supremacy 48-123 (1949). When many of these decisions were later overruled, the principle that Congress [675] could not simply transfer its legislative authority to the Executive fell under a cloud. Yet in my opinion decisions such as Panama Refining Co. v. Ryan, 293 (1935), suffer from non of the excesses of judicial policy making that plagued some of the other decisions of that era. The many later decisions that have upheld congressional delegations of authority to the Executive Branch have done so largely on the theory that Congress may wish to exercise its authority in a particular field, but because the field is sufficiently technical, the ground to be covered sufficiently large, and the Members of Congress themselves not necessarily expert in the area in which they choose to legislate, the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, "fill in the blanks," or apply the standards to particular cases. These decisions, to may mind, simply illustrate the above-quoted principle stated more than 50 years ago by Mr. Chief Justice Taft that delegations of legislative authority must be judged "according to common sense of the inherent necessities of the governmental co-ordination".

Viewing the legislation at issue here in light of these principle, I believe that it fails to pass muster. Read literally, the relevant portion of § 6 (b) (5) is completely precatory, admonishing the Secretary to adopt the most protective standard if he can, but excusing him from that duty if he cannot. In the case of a hazardous substance of which a "safe" level is either unknown or impractical, the language of § 6 (b) (5) gives the Secretary absolutely no indication where on the continuum of relative safety he should drawn his line. Especially in light of the importance of the interests at stake, I have no doubt that the provision at issue, standing alone, would violate the doctrine against uncanalized delegations of legislative power. For me the remaining question, then, is whether additional standards are ascertainable from the legislative history or statutory context of § 6 (b) (5) or, if not, whether [676] such a standardless delegation was justifiable in light of the "inherent necessities" of the situation.

II

One of the primary sources looked to by this Court in adding gloss to an otherwise broad grant of legislative authority is the legislative history of the statute in question. The opinions of MR. JUSTICE STEVENS and MR. JUSTICE MARSHALL, however, give little more than a tip of the hat to the legislative origins of § 6 (b) (5). Such treatment is perhaps understandable, since the legislative history of that section, far from shedding light on what important policy choices Congress was making in the statute, gives one the feeling of viewing the congressional purpose "by the dawn's early light."

The precursor of § 6 (b) (5) was placed in the Occupational Safety and Health Act of 1970 while that bill was pending in the House Committee on Education and Labor. At that time, the section read:

"The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately assures, on the basis of the best available professional evidence, that no employee will suffer any impairment of health, or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." § 7 (a) (4), H. R. 16785, 91st Cong., 2d Sess., 49 (1970), Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), p. 943 (1971) (hereinafter Leg. Hist.).

Three aspects of this original proposal are particularly significant. First, and perhaps most importantly, as originally introduced the provision contained no feasibility limitation, providing instead that the Secretary "shall set the standard which most adequately assures" that no employee will suffer [677] harm. Second, it would have required the Secretary to protect employees from "any" impairment of health or functional capacity. Third, on its face, although perhaps not in its intent, the provision applied to both health and safety standards promulgated under the Act.^[80]

There can be little doubt that, at this point in its journey thorough Congress, § 6 (b) (5) would have required the Secretary, in regulating toxic substances, to set the permissible level of exposure at a safe level or, if no safe level was known, at zero. When the Senate Committee on Labor and Public Welfare considered a provision identical in almost all respects to the House version, however, Senator Javits objected that the provision in question "might be interpreted to require absolute health and safety in all cases, regardless of feasibility. . . ." S. Rep. No. 91-1282, p. 58 (1970). Leg. Hist. 197. See also 116 Cong. Rec. 37327 (1970), Leg. Hist. 418. The Committee therefore amended the bill to provide that the Secretary "shall set the standard which most adequately and feasibly" assured that no employee would suffer any impairment of health. S. 2193, 91st Cong., 2d Sess., p. 39 (1970), Leg. Hist. 242 (emphasis added). The only additional explanation for this change appeared in the Senate Report accompanying the bill to the Senate floor. There, the Committee explained:

"[S]tandards promulgated under section 6 (b) shall represent feasible requirements, which, where appropriate, shall be based on research, experiments, demonstrations, past experience, and the latest available scientific [678] data. Such standards should be directed at assuring, so far as possible, that no employee will suffer impaired health or functional capacity or diminished life expectancy, by reason of exposure to the hazard involved, even though such exposure may be over the period of his entire working life." S. Rep. No. 91-1282, p. 7 (1970), Leg. Hist. 147 (emphasis added).

Despite Senator Javits' inclusion of the words "and feasibly" in the provision, participants in the floor debate immediately characterized § 6 (b) (5) as requiring the Secretary "to establish a utopia free from any hazards" and to "assure that there will not be any risk at all." 116 Cong. Rec. 37914 (1970). Leg. Hist. 480-481 (remarks of Sen. Dominick). Senator Saxbe stated:

"When we come to saying that an employer must guarantee that such an employee is protected from any possible harm, I think it will be one of the most difficult areas we are going to have to ascertain. . . .

"I believe the terms that we are passing back and forth are going to have to be identified." 116 Cong. Rec., at 26522, Leg. Hist. 345.

In response to these concerns, Senator Dominick introduced a substitute for the proposed provision, deleting the sentence at issue here entirely. He explained that his amendment would delete

"the requirement in section 6 (b) (5) that the Secretary will establish occupational safety and health standards which most adequately and feasibly assure to the extent possible that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if the employee has regular exposure to the hazard dealt with by the standard for the period of his working life.

"This requirement is inherently confusing and unrealistic. It could be read to require the Secretary to ban all [679] occupations in which there remains some risk of injury. impaired health, or life expectancy. In the case of all occupations, it will be impossible to eliminate all risks to safety and health. Thus. the present criteria could, if literally applied, close every business in this nation. In addition, in many cases, the standard which might most `adequately' and `feasibly' assure the elimination of the danger would be the prohibition of the occupation itself.

"If the provision is intended as no more than an admonition to the Secretary to do his duty, it seems unnecessary and could, if deemed advisable be included in the legislative history." (Emphasis in original.) 116 Cong. Rec., at 36530, Leg. Hist. 367.

Eventually, Senator Dominick and his supporters settled for the present language of § 6 (b) (5). This agreement resulted in three changes from the original version of the provision as amended by Senator Javits. First, the provision was altered to state explicitly that it applied only to standards for "toxic materials or harmful physical agents," in apparent contrast with safety standards. Second, the Secretary was no longer admonished to protect employees from "any" impairment of their health, but rather only from "material" impairments. Third, and most importantly for our purposes, the phrase "most adequately and feasibly assures" was revamped to read "most adequately assures, to the extent feasible."

We have been presented with a number of different interpretations of this shift. According to the Secretary. Senator Dominick recognized that he could not delete the seemingly absolute requirements of § 6 (b) (5) entirely, and instead agreed to limit its application to toxic materials or harmful physical agents and to specify that the Secretary was only to protect employees from material impairment of their health. Significantly, the Secretary asserts that his mandate to set such standards at the safest level technologically and economically [680] achievable remained unchanged by the Dominick amendment. According to the Secretary, the change in language from "most adequately and feasibly assures" to "most adequately assures, to the extent feasible," represented only a slight shift in emphasis, perhaps suggesting "a preference for health protection over cost." App. to Brief for Federal Parties 7a. n. 2. See also Brief for Federal Parties 59.

MR. JUSTICE MARSHALL reads this history quite differently. In his view, the version of § 6 (b) (5) that reached the Senate floor did not "clearly embod[y] the feasibility requirement" and thus was soundly criticized as being unrealistic. See post, at 693. It was only as a result of the floor amendments, which replaced "most adequately and feasibly assures" with "most adequately assures, to the extent feasible," that the Secretary clearly was authorized to reject a standard if it proved technologically or economically infeasible. See also post at 710, and 720-721, n. 34.

Respondents cast yet a third light on these events, focusing upon a few places in the legislative history where the words "feasible" and "reasonable" were used more or less interchangeably. See S. Rep. No. 91-2193, pp. 8-10 (1969), Leg. Hist. 38-40; 115 Cong. Rec. 22517 (1969) (Sen. Javits). It is their contention that, when Congress said "feasible", it meant cost-justified. According to respondents, who agree in this regard with the Secretary, the meaning of the feasibility requirement did not change substantially between the version that left the Senate Committee on Labor and Public Welfare and the version that was ultimately adopted as part of the Act.

To my mind, there are several lessons to be gleaned from this somewhat cryptic legislative history. First, as pointed out by Mr. JUSTICE MARSHALL, to the extent that Senator Javits, Senator Dominick, and other Members were worried about imposing upon the Secretary the impossible burden of assuring absolute safety, they did not view § 3 (8) of the Act [681] as a limitation on that duty. I therefore find it difficult to accept the conclusion of the lower court, as embellished by respondents, that § 3 (8) acts as a general check upon the Secretary's duty under § 6 (b) (5) to adopt the most protective standard feasible.

Second, and more importantly, I believe that the legislative history demonstrates that the feasibility requirement, as employed in § 6 (b) (5), is a legislative mirage, appearing to some Members but not to others, and assuming any form desired by the be holder. I am unable to accept MR. JUSTICE MARSHALL'S argument that, by changing the phrasing of § 6 (b) (5) from "most adequately and feasibly assures" to "most adequately assures, to the extent feasible," the Senate injected into that section something that was not already there.^[81] If I am correct in this regard, then the amendment introduced by Senator Javits to relieve the Secretary of the duty to create a risk-free workplace left Senator Dominick free to object to the amended provision on the same grounds. Perhaps Senator Dominick himself offered the attest description of the feasibility requirement as "no more than an admonition to the Secretary to do his duty. . . ." 116 Cong. Rec. 36530 (1970); Leg. Hist. 367.

In sum, the legislative history contains nothing to indicate that the language "to the extent feasible" does anything other [682] than render what had been a clear, if somewhat unrealistic, standard largely, if not entirely, precatory. There is certainly nothing to indicate that these worded, as used in § 6 (b) (5), are limited to technological and economic feasibility. When Congress has wanted to limit the concept of feasibility in this fashion, it has said so, as is evidenced in a statute enacted the same week as the provision at issue here.^[82] I also question whether the Secretary wants to assume the duties such an interpretation would impose upon him. In these cases, for example, the Secretary actually declined to adopt a standard lower than 1 ppm for some industries, not because it was economically or technologically infeasible, but rather because "different levels for different industries would result in serious administrative difficulties." 43 Fed. Reg. 5947 (1978). See also ante, at 650 (plurality opinion). If § 6 (b) (5) authorizes the Secretary to reject a more protective standard in the interest of administrative feasibility. I have little doubt that he could reject such standards for any reason whatsoever, including even political feasibility.

III

In prior cases this Court has looked to sources other than the legislative history to breathe life into otherwise vague delegations of legislative power. In American Power & Light Co. v. SEC, 329 U. S. 90, 104 (1946), for example, this Court concluded that certain seemingly vague delegations "derive[d] much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear." Here however, there is little or nothing in the [683] remaining provisions of the Occupational Safety and Health Act of provide specificity to the feasibility criterion in § 6 (b) (5). It may be true, as suggested by Mr. JUSTICE MARSHALL, that the Act as a whole expresses a distinct preference for safety over dollars. But that expression of preference, as I read it, falls far short of the proposition that the Secretary must eliminate marginal or insignificant risks of material harm right down to an industry's breaking point.

Nor are these cases like Lichter v. United States, U. S. 742, 783 (1948), where this court upheld delegation of authority to recapture "excessive profits" in light of a pre-existing administrative practice. Here, the Secretary's approach to toxic substances like benzene could not have predated the enactment of § 6 (b) (5) itself. Moreover, there are indications that the post enactment administrative practice has been less than uniform. For Example, the Occupational Safety and Health Review Commission (OSHRC), the body charged with adjudicating citations issued by the Secretary under the Act, apparently does not agree with the definition of "feasibility," advanced in these cases by the Secretary. In Continental Can Co., 4 OSHC 1541, 1976-1977 OSHD ¶ 21,009 (1976). the Commission reasoned:

"Clearly, employers have finite resources available for use to abate health hazards. And just as clearly if they are to be made to spend without limit for abatement of this hazard their financial ability to abate other hazards, including life threatening hazards, is reduced." Id., at 1547, 1976-1977 OSHD, p. 25,256.

Furthermore, the record in those cases contains at least one indication that the Secretary himself was, at one time, quite uncertain what limits § 6 (b) (5) placed upon him. In announcing the proposed 1ppm standard and discussing its economic ramifications, the Secretary explained that "[w]hile the precise meaning of feasibility is not clear from the Act, it is [684] OSHA's view that the term may include the economic ramifications of requirements imposed by standards." 43 Fed. Reg. 5934 (1978). This candid and tentative statement falls far short secretary's present position that economic and technological considerations set the only limits on his duty to adopt the most protective standard. Finally, as noted earlier, the Secretary has failed to apply his present stringent view uniformly, rejecting in these cases a lower standard for some industries on the grounds of administrative convenience.

In some cases where broad delegations of power have been examined, this Court has upheld those delegations because of the delegate's residual authority over particular subjects of regulation. In United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 307 (1936), this Court upheld a statute authorizing the president to prohibit the sale of arms to certain countries if he found that such a prohibition would "Contribute to the reestablishment of peace." This Court reasoned that, in the area of foreign affairs Congress "must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." Id., at 320. Similarly, United States v. Mazurie, 419 U. S. 544 (1975), upheld a broad delegation of authority to various Indian tribes to regulate the introduction of liquor into Indian country. According to Mazurie limitations on Congress' authority to delegate legislative power are "less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter." Id., at 556-557. In the present cases, however, neither the Executive Branch in general nor the Secretary in particular enjoys any independent authority over the subject matter at issue.

Finally, as indicated earlier, in some cases this Court has abided by a rule of necessity, upholding broad delegations of authority where it would be "unreasonable and impracticable [685] to compel Congress to prescribe detailed rule" regarding a particular policy or situation. American Power & Light Co. v. SEC, 329 U. S. at 105. See also Buttfield v. Stranahan, 192 U. S. 470, 496 (1904). But no need for such an evasive standard as "feasibility" is apparent in the present cases. In drafting § 6 (b) (5). Congress was faced with a clear, if difficult, choice between balancing statistical lives and industrial resources or authorizing the Secretary to elevate human life above all concerns save massive dislocation in an affected industry. That Congress recognized the difficulty of this choice is clear from the previously noted remark of Senator Saxbe, who stated that "[w]hen we come to saying that an employer must guarantee that such an employee is protected from any possible harm, I think it will be one of the most difficult areas we are going to have to ascertain." 116 Cong. Rec. 36522 (1970), Leg. Hist. 345. that Congress chose, intentionally or unintentionally, to pass this difficult choice on to the Secretary is evident from the spectral quality of the standard it selected and is capsulized in Senator Saxbe's unfulfilled promise that "the terms that we are passing back and forth are going to have to be identified." Ibid.

IV

As formulated and enforced by this Court, the nondelegation doctrine serves three important functions. First, and most abstractly, it ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will. See Arizona v. California, 373 U. S. 546, 626 (1963) (Harlan, J., dissenting in part); United States v. Robel, 389 U. S. 258, 276 (1976) (BRENNAN, J., concurring in result). Second, the doctrine guarantees that, to the extent Congress finds it necessary to delegate authority, it provides the recipient of that authority with an [686] "intelligible principle" to guide the exercise of the delegated discretion. See J. W. Hampton & Co., v. United States, 276 U. S., at 409; Panama Refining Co. v. Ryan, 293 U. S., at 430. Third, and derivative of the second, the doctrine ensure that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards. See Arizona v. California, supra, at 626 (Harlan, J., dissenting in part); American Power & Light Co. v. SEC, supra, at 106.

I believe the legislation at issue here fails on all three counts. The decision whether the law of diminishing return should have any place in the regulation of toxic substances is quintessentially one of legislative policy. For Congress to pass that decision on to the Secretary in the manner it did violates, un my mind, John Locke's caveat—reflected in the cases cited earlier in this opinion—that legislatures are to make laws, not legislators. Nor, as I think the prior discussion amply demonstrates, do the provisions at issue or their legislative history provide the Secretary with any guidance that might lead him to his somewhat tentative conclusion that he must eliminate exposure to benzene as far as technologically and economically possible. Finally, I would suggest that the standard of "feasibility" renders meaningful judicial review impossible.

We ought not to shy away from our judicial duty to invalidate unconstitutional delegations of legislative authority solely out of concern that we should thereby reinvigorate discredited constitutional doctrines of the pre-New Deal era. If the non-delegation doctrine has fallen into the same deserted as have substantive due process and restrictive interpretations of the Commerce Clause, it is, as one writer has phrased it. "a case of death by association." J. Ely. Democracy and Distrust. A Theory of Judicial Review 133 (1980). Indeed a number of observers have suggested that this Court should once more take up its burden of ensuring that Congress does not unnecessarily delegate important choices of social policy to politically [687] unresponsive administrators.^[83] Other observers, as might be imagined, have disagreed.^[84]

If we are over to reshoulder the burden of ensuring that Congress itself make the critical policy decisions, these are surely the cases in which to do it. It is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compromise was difficult, if not impossible, to hammer out in the legislative forge. Far from detracting from the substantive authority of Congress, a declaration the first sentence of § 6 (b) (5) of the Occupational Safety and Health Act constitutes an invalid delegation to the Secretary of Labor would preserve the authority of Congress. If Congress wishes to legislate in an area which it has not previously sought enter, it will in today's political world undoubtedly run into opposition no matter how the legislative is formulated. But that is the very essence of legislative authority under our system. It is the hard choices, and not the filling in of the blanks, which must be made by the elected representatives of the people. when fundamental policy decisions underlying important legislation about to the enacted are to be made, the buck stops with Congress and the President insofar as he exercises his constitutional role in the legislative process.

I would invalidate the first sentence of § 6 (b) (5) of the Occupational Safety and Health Act of 1970 as it applies to [688] any toxic substance or harmful physical agent for which a safe level, that is, a level at which "no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to [that hazard] for the period of his working life." is, according to the Secretary, unknown or otherwise "infeasible." Absent further congressional action, the Secretary would then have to choose, when acting pursuant to § 6 (b) (5), between setting a safe standard or setting no standard at all.^[85] Accordingly, for the reasons stated above, I concur in the judgment of the Court affirming the judgment of the Court of Appeals.

MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE BLACKMUN join, dissenting.

In cases of statutory construction, this Court's authority is limited. If the statutory language and legislative intent are plain, the judicial inquiry is at an end. Under our jurisprudence, it is presumed that ill-considered or unwise legislation will be corrected through the democratic process; a court is not permitted to distort a statute's meaning in order to make it conform with the Justices' own views of sound social policy. See TVA v. Hill, 437 U. S. 153 (1978).

Today's decision flagrantly disregards these restrictions on judicial authority. The plurality ignores the plain meaning of the Occupational Safety and Health Act of 1970 in order to bring the authority of the Secretary of Labor in line with the plurality's own views of proper regulatory policy. The unfortunate consequence is that the Federal Government's efforts to protect American workers from cancer and other crippling diseases may be substantially impaired.

[689] The first sentence of § 6 (b) (5) of the Act provides:

"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 29 U. S. C. § 655 (b) (5).

In this case the Secretary of Labor found, on the basis of substantial evidence, that (1) exposure to benzene creates a risk of cancer, chromosomal damage, and a variety of non-malignant but potentially fatal blood disorders, even at the level of 1 ppm; (2) no safe level of exposure has been shown; (3) benefits in the form of saved lives would be derived from the permanent standard; (4) the number of lives that would be saved could turn out to be either substantial or relatively small; (5) under the present state of scientific knowledge, it is impossible to calculate even in a rough way the number of lives that would be saved, at least without making assumptions that would appear absurd to much of the medical community; and (6) the standard would not materially harm the financial condition of the covered industries. The Court does not set aside any of these findings. Thus, it could not be plainer that the Secretary's decision was fully in accord with his statutory mandate "most adequately [to] assur[e] . . . that no employee will suffer material impairment of health or functional capacity. . . ."

The plurality's conclusion to the contrary is based on its interpretation of 29 U. S. C. § 652 (8), which defines an occupational safety and health standard as one "which requires conditions . . . reasonably necessary or appropriate to provide safe or healthful employment. . . ." According to the plurality, a standard is not "reasonably necessary or appropriate" [690] unless the Secretary is able to show that it is "at least more likely than not," ante, at 653, that the risk he seeks to regulate is a "significant" one. Ibid. Nothing in the statute's language or legislative history, however, indicates that the "reasonably necessary or appropriate" language should be given this meaning. Indeed, both demonstrate that the plurality's standard bears no connection with the acts or intentions of Congress and is based only on the plurality's solicitude for the welfare of regulated industries. And the plurality uses this standard to evaluate not the agency's decision in this case, but a strawman of its own creation.

Unlike the plurality, I do not purport to know whether the actions taken by Congress and its delegates to ensure occupational safety represent sound or unsound regulatory policy. The critical problem in cases like the ones at bar is scientific uncertainty. While science has determined that exposure to benzene at levels above 1 ppm creates a definite risk of health impairment, the magnitude of the risk cannot be quantified at the present time. The risk at issue has hardly been shown to be insignificant; indeed, future research may reveal that the risk is in fact considerable. But the existing evidence may frequently be inadequate to enable the Secretary to make the threshold finding of "significance" that the Court requires today. If so, the consequence of the plurality's approach would be to subject American workers to a continuing risk of cancer and other fatal diseases, and to render the Federal Government powerless to take protective action on their behalf. Such an approach would place the burden of medical uncertainty squarely on the shoulders of the American worker, the intended beneficiary of the Occupational Safety and Health Act. It is fortunate indeed that at least a majority of the Justices reject the view that the Secretary is prevented from taking regulatory action when the magnitude of a health risk cannot be quantified on the basis of current techniques. See ante, at 666 (POWELL, J., concurring in part [691] and concurring in judgment); see also ante, at 656, and n. 63 (plurality opinion).

Because today's holding has no basis in the Act, and because the Court has no authority to impose its own regulatory policies on the Nation, I dissent.

I

Congress enacted the Occupational Safety and Health Act as a response to what was characterized as "the grim history of our failure to heed the occupational health needs of our workers."^[86] The failure of voluntary action and legislation at the state level, see S. Rep. No. 91-1282, p. 4 (1970), Leg. Hist. 144, had resulted in a "bleak" and "worsening"^[87] situation in which 14,500 persons had died annually as a result of conditions in the workplace. In the four years preceding the Act's passage, more Americans were killed in the workplace than in the contemporaneous Vietnam War, S. Rep. No. 91-1283, at 2, Leg. Hist. 142. The Act was designed as "a safety bill of rights for close to 60 million workers."^[88] Its stated purpose is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." 29 U. S. C. § 651 (b). See Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U. S. 442, 444-445 (1977).

The Act is enforced primarily through two provisions. First, a "general duty" is imposed upon employers to furnish employment and places of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm. . . ." 29 U. S. C. § 654 (a) (1). Second, the Secretary of Labor is authorized to set "occupational safety [692] and health standards," defined as standards requiring "conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment." 29 U. S. C. § 652 (8).

The legislative history of the Act reveals Congress' particular concern for health hazards of "unprecedented complexity" that had resulted from chemicals whose toxic effects "are only now being discovered." S. Rep. No. 91-1282, supra, at 2, Leg. Hist. 142. "Recent scientific knowledge points to hitherto unsuspected cause-and-effect relationships between occupational exposures and many of the so-called chronic diseases—cancer, respiratory ailments, allergies, heart disease, and others." Ibid. Members of Congress made repeated references to the dangers posed by carcinogens and to the defects in our knowledge of their operation and effect.^[89] One of the primary purposes of the Act was to ensure regulation of these "insidious `silent' killers."^[90]

This special concern led to the enactment of the first sentence of 29 U. S. C. § 655 (b) (5), which, as noted above, provides:

"The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life."

This directive is designed to implement three legislative purposes. [693] First, Congress recognized that there may be substances that become dangerous only upon repeated or frequent exposure.^[91] The Secretary was therefore required to provide protection even from substances that would cause material impairment only upon exposure occurring throughout an employee's working life. Second, the requirement that the Secretary act on the basis of "the best available evidence" was intended to ensure that the standard-setting process would not be destroyed by the uncertainty of scientific views. Recognizing that existing knowledge may be inadequate, Congress did not require the Secretary to wait until definitive information could be obtained. Thus "it is not intended that the Secretary be paralyzed by debate surrounding diverse medical opinions." H. R. Rep. No. 91-1291, p. 18 (1970), Leg. Hist. 848. Third, Congress' special concern for the "silent killers" was felt to justify an especially strong directive to the Secretary in the standard-setting process. 116 Cong. Rec. 37622 (1970), Leg. Hist. 502 (Sen. Dominick).

The authority conferred by § 655 (b) (5), however, is not absolute. The subsection itself contains two primary limitations. The requirement of "material" impairment was designed to prohibit the Secretary from regulating substances that create a trivial hazard to affected employees.^[92] Moreover, all standards promulgated under the subsection must be "feasible." During the floor debates Congress expressed concern that a prior version of the bill, not clearly embodying the feasibility requirement, would require the Secretary to close down whole industries in order to eliminate risks of impairment. This standard was criticized as unrealistic.^[93] [694] The feasibility requirement was imposed as an affirmative limit on the standard-setting power.

The remainder of § 655 (b) (5), applicable to all safety and health standards, requires the Secretary to base his standards "upon research, demonstrations, experiments, and such other information as may be appropriate." In setting standards, the Secretary is directed to consider "the attainment of the highest degree of health and safety protection for the employee" and also "the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws."

The Act makes provision for judicial review of occupational safety and health standards promulgated pursuant to § 655 (b) (5). The reviewing court must uphold the Secretary's [695] determinations if they are supported by "substantial evidence in the record considered as a whole." 29 U. S. C. § 655 (f). It is to that evidence that I now turn.

II

The plurality's discussion of the record in this case is both extraordinarily arrogant and extraordinarily unfair. It is arrogant because the plurality presumes to make its own factual findings with respect to a variety of disputed issues relating to carcinogen regulation. See, e. g., ante, at 656-657, and n. 64. It should not be necessary to remind the Members of this Court that they were not appointed to undertake independent review of adequately supported scientific findings made by a technically expert agency.^[94] And the plurality's discussion is unfair because its characterization of the Secretary's report bears practically no resemblance to what the Secretary actually did in this case. Contrary to the plurality's suggestion, the Secretary did not rely blindly on some Draconian carcinogen "policy." See ante, at 624-625, 635-636. If he had, it would have been sufficient for him to have observed that [696] benzene is a carcinogen, a proposition that respondents do not dispute. Instead, the Secretary gathered over 50 volumes of exhibits and testimony and offered a detailed and evenhanded discussion of the relationship between exposure to benzene at all recorded exposure levels and chromosomal damage, aplastic anemia, and leukemia. In that discussion he evaluated, and took seriously, respondents' evidence of a safe exposure level. See also ante, at 666 (POWELL, J., concurring in part and in judgment).

The hearings on the proposed standard were extensive, encompassing 17 days from July 19 through August 10, 1977. The 95 witnesses included epidemiologists, toxicologists, physicians, political economists, industry representatives, and members of the affected work force. Witnesses were subjected to exhaustive questioning by representatives from a variety of interested groups and organizations.

Three basic positions were presented at the hearings. The first position was that the proposed 1 ppm standard was necessary because exposure to benzene would cause material impairment of the health of workers no matter how low the exposure level. Some direct evidence indicated that exposure to benzene had caused chromosomal damage, blood disorders, and leukemia at or below the 10 ppm level itself. More important, it was suggested that the recorded effects of benzene at higher levels required an inference that leukemia and other disorders would result at levels of 1 ppm and lower, especially after the prolonged exposure typical in industrial settings. Therefore, the standard should be set at the lowest feasible level, which was 1 ppm.

The second position was that a 1 ppm exposure level would itself pose an unwarranted threat to employee health and safety and that the available evidence necessitated a significantly lower level. An exposure limit below 1 ppm, it was argued, would be feasible. There were suggestions that benzene was gradually being replaced in many of the affected [697] industries and that most companies were already operating at or below the 1 ppm level.

The third position was that the 1971 standard should be retained. Proponents of this position suggested that evidence linking low levels of benzene exposure to leukemia was uncertain, that the current exposure limit was sufficiently safe, and that the benefits of the proposed standard would be insufficient to justify the standard's costs. In addition, there was testimony that the expenses required by the proposed standard would be prohibitive.

The regulations announcing the permanent standard for benzene are accompanied by an extensive statement of reasons summarizing and evaluating the results of the hearings. The Secretary found that the evidence showed that exposure to benzene causes chromosomal damage, a variety of nonmalignant blood disorders, and leukemia. 43 Fed. Reg. 5921 (1978). He concluded that low concentrations imposed a hazard that was sufficiently grave to call for regulatory action under the Act.

Evidence of deleterious effects. The Secretary referred to studies which conclusively demonstrated that benzene could damage chromosomes in blood-forming cells. Id., at 5932. There was testimony suggesting a causal relationship between chromosomal damage and leukemia, although it could not be determined whether and to what extent such damage would impair health. Id., at 5933.^[95] Some studies had suggested chromosomal damage at exposure levels of 10-25 ppm and lower.^[96] No quantitative dose-response curve, showing the relationship between exposure levels and incidence of chromosomal damage, could yet be established. Id., at 5933-5934. The evidence of chromosomal damage was, in the Secretary's view, a cause for "serious concern." Id., at 5933.

The most common effect of benzene exposure was a decrease [698] in the levels of blood platelets and red and white blood cells. If sufficiently severe, the result could be pancytopenia or aplastic anemia, noncancerous but potentially fatal diseases. There was testimony that some of the nonmalignant blood disorders caused by benzene exposure could progress to, or represented, a preleukemic stage which might eventually evolve into a frank leukemia. Id., at 5922.^[97]

Considerable evidence showed an association between benzene and nonmalignant blood disorders at low exposure levels. Such an association had been established in one study in which the levels frequently ranged from zero to 25 ppm with some concentrations above 100 ppm, ibid.; in another they ranged from 5 to 30 ppm. id., at 5923. Because of the absence of adequate data, a dose-response curve showing the relationship between benzene exposure and blood disorders could not be constructed. There was considerable testimony, however, that such disorders had resulted from exposure to benzene at or near the current level of 10 ppm and lower.^[98] The Secretary concluded that the current standard did not provide adequate protection. He observed that a "safety factor" of 10 to 100 was generally used to discount the level at which a causal connection had been found in existing studies.^[99] Under this approach, he concluded that, quite apart from any leukemia risk, the permissible exposure limit should be set at a level considerably lower than 10 ppm.

Finally, there was substantial evidence that exposure to benzene caused leukemia. The Secretary concluded that the evidence established that benzene was a carcinogen. A causal relationship between benzene and leukemia was first reported in France in 1897, and since that time similar results had been found in a number of countries, including Italy, Turkey, Japan, Switzerland, the Soviet Union, and the United [699] States. The latest study, undertaken by the National Institute for Occupational Safety and Health (NIOSH) in the 1970's, reported a fivefold excess over the normal incidence of leukemia among workers exposed to benzene at industrial plants in Ohio. There was testimony that this study seriously understated the risk.^[100]

The Secretary reviewed certain studies suggesting that low exposure levels of 10 ppm and more did not cause any excess incidence of leukemia. Those studies, he suggested, suffered from severe methodological defects, as their authors frankly acknowledged.^[101] Finally, the Secretary discussed a study suggesting a statistically significant excess in leukemia at levels of 2 to 9 ppm. Ibid.^[102] He found that, despite certain deficiencies in the study, it should be considered as consistent with other studies demonstrating an excess leukemia risk among employees exposed to benzene. Id., at 5928.

Areas of uncertainty. The Secretary examined three areas [700] of uncertainty that had particular relevance to his decision. First, he pointed to evidence that the latency period for benzene-induced leukemia could range from 2 to over 20 years. Id., at 5930. Since lower exposure levels lead to an increase in the latency period, it would be extremely difficult to obtain evidence showing the dose-response relationship between leukemia and exposure to low levels of benzene. Because there has been no adequate monitoring in the past, it would be practically impossible to determine what the exposure levels were at a time sufficiently distant so that the latency period would have elapsed. The problem was compounded by the difficulty of conducting a suitable study. Because exposure levels approaching 10 ppm had been required only recently, direct evidence showing the relationship between leukemia and exposure levels between 1 and 10 ppm would be unavailable in the foreseeable future.

Second, the Secretary observed that individuals have differences in their susceptibility to leukemia. Ibid. Among those exposed to benzene was a group of unknown but possibly substantial size having various "predisposing factors" whose members were especially vulnerable to the disease. Id., at 5930, 5946. The permanent standard was designed to minimize the effects of exposure for these susceptible individuals as well as for the relatively insensitive, id., at 5946, and also to facilitate early diagnosis and treatment. Id., at 5930.

The Secretary discussed the contention that a safe level of exposure to benzene had been demonstrated. From the testimony of numerous scientists, he concluded that it had not. Id., at 5932.^[103] He also found that although no dose-response curve could be plotted, id., at 5946,^[104] the extent of the risk [701] would decline with the exposure level. Ibid.^[105] Exposure at a level of 1 ppm would therefore be less dangerous than exposure at one of 10 ppm. The Secretary found that the existing evidence justified the conclusion that he should not "wait for answers" while employees continued to be exposed to benzene at hazardous levels.

Finally, the Secretary responded to the argument that the permissible exposure level should be zero or lower than 1 ppm. Id., at 5947.^[106] Even though many industries had already achieved the 1 ppm level, he found that a lower level would not be feasible. Ibid.

Costs and benefits. The Secretary offered a detailed discussion of the role that economic considerations should play in his determination. He observed that standards must be "feasible," both economically and technologically. In his view the permanent standard for benzene was feasible under both tests. The economic impact would fall primarily on the more stable industries, such as petroleum refining and petrochemical production. Id., at 5934. These industries would be able readily to absorb the costs or to pass them on to consumers. None of the 20 affected industries, involving 157,000 facilities and 629,000 exposed employees, id., at 5935, would be unable to bear the required expenditures, id., at 5934. He concluded that the compliance costs were "well within the financial capability of the covered industries." Id., at 5941. An extensive survey of the national economic impact of the standard, undertaken by a private contractor, found first-year operating costs of between $187 and $205 million, recurring annual costs of $34 million, and investment in engineering controls of about $266 million.^[107] Since respondents have not attacked [702] the Secretary's basic conclusions as to cost, the Secretary's extensive discussion need not be summarized here.

Finally, the Secretary discussed the benefits to be derived from the permanent standard. During the hearings, it had been argued that the Secretary should estimate the health benefits of the proposed regulation. To do this he would be required to construct a dose-response curve showing, at least in a rough way, the number of lives that would be saved at each possible exposure level. Without some estimate of benefits, it was argued, the Secretary's decisionmaking would be defective. During the hearings an industry witness attempted to construct such a dose-response curve. Restricting himself to carcinogenic effects, he estimated that the proposed standard would save two lives every six years and suggested that this relatively minor benefit would not justify the regulation's costs.

The Secretary rejected the hypothesis that the standard would save only two lives in six years. This estimate, he concluded, was impossible to reconcile with the evidence in the record. Ibid.^[108] He determined that, because of numerous [703] uncertainties in the existing data, it was impossible to construct a dose-response curve by extrapolating from those data to lower exposure levels.^[109] More generally, the Secretary [704] observed that it had not been established that there was a safe level of exposure for benzene. Since there was considerable testimony that the risk would decline with the exposure level, id., at 5940, the new standard would save lives. The number of lives saved "may be appreciable," but there was no way to make a more precise determination.^[110] The question was "on the frontiers of scientific knowledge." Ibid.

The Secretary concluded that, in light of the scientific uncertainty, he was not required to calculate benefits more precisely. Id., at 5941. In any event he gave "careful consideration" to the question of whether the admittedly substantial costs were justified in light of the hazards of benzene exposure. He concluded that those costs were "necessary" in order to promote the purposes of the Act.

III

A

This is not a case in which the Secretary found, or respondents established, that no benefits would be derived from a permanent standard, or that the likelihood of benefits was insignificant. Nor was it shown that a quantitative estimate of benefits could be made on the basis of "the best available evidence." Instead, the Secretary concluded that benefits will result, that those benefits "may" be appreciable, but that the dose-response relationship of low levels of benzene [705] exposure and leukemia, nonmalignant blood disorders, and chromosomal damage was impossible to determine. The question presented is whether, in these circumstances, the Act permits the Secretary to take regulatory action, or whether he must allow continued exposure until more definitive information becomes available.

As noted above, the Secretary's determinations must be upheld if supported by "substantial evidence in the record considered as a whole." 29 U. S. C. § 655 (f). This standard represents a legislative judgment that regulatory action should be subject to review more stringent than the traditional "arbitrary and capricious" standard for informal rulemaking. We have observed that the arbitrary and capricious standard itself contemplates a searching "inquiry into the facts" in order to determine "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 416 (1971). Careful performance of this task is especially important when Congress has imposed the comparatively more rigorous "substantial evidence" requirement. As we have emphasized, however, judicial review under the substantial evidence test is ultimately deferential. See, e. g., Richardson v. Perales, 402 U. S. 389, 401 (1971); Consolo v. Federal Maritime Comm'n, 383 U. S. 607, 618-621 (1966). The agency's decision is entitled to the traditional presumption of validity, and the court is not authorized to substitute its judgment for that of the Secretary. If the Secretary has considered the decisional factors and acted in conformance with the statute, his ultimate decision must be given a large measure of respect. Id., at 621.

The plurality is insensitive to three factors which, in my view, make judicial review of occupational safety and health standards under the substantial evidence test particularly difficult. First, the issues often reach a high level of technical complexity. In such circumstances the courts are required to immerse themselves in matters to which they are unaccustomed [706] by training or experience. Second, the factual issues with which the Secretary must deal are frequently not subject to any definitive resolution. Often "the factual finger points, it does not conclude." Society of Plastics Industry, Inc. v. OSHA, 509 F. 2d 1301, 1308 (CA2) (Clark, J.), cert. denied, 421 U. S. 992 (1975). Causal connections and theoretical extrapolations may be uncertain. Third, when the question involves determination of the acceptable level of risk, the ultimate decision must necessarily be based on considerations of policy as well as empirically verifiable facts. Factual determinations can at most define the risk in some statistical way; the judgment whether that risk is tolerable cannot be based solely on a resolution of the facts.

The decision to take action in conditions of uncertainty bears little resemblance to the sort of empirically verifiable factual conclusions to which the substantial evidence test is normally applied. Such decisions were not intended to be unreviewable; they too must be scrutinized to ensure that the Secretary has acted reasonably and within the boundaries set by Congress. But a reviewing court must be mindful of the limited nature of its role. See Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S. 519 (1978). It must recognize that the ultimate decision cannot be based solely on determinations of fact, and that those factual conclusions that have been reached are ones which the courts are ill-equipped to resolve on their own.

Under this standard of review, the decision to reduce the permissible exposure level to 1 ppm was well within the Secretary's authority. The Court of Appeals upheld the Secretary's conclusions that benzene causes leukemia, blood disorders, and chromosomal damage even at low levels, that an exposure level of 10 ppm is more dangerous than one of 1 ppm, and that benefits will result from the proposed standard. It did not set aside his finding that the number of lives that would be saved was not subject to quantification. [707] Nor did it question his conclusion that the reduction was "feasible."

In these circumstances, the Secretary's decision was reasonable and in full conformance with the statutory language requiring that he "set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 29 U. S. C. § 655 (b) (5). On this record, the Secretary could conclude that regular exposure above the 1 ppm level would pose a definite risk resulting in material impairment to some indeterminate but possibly substantial number of employees. Studies revealed hundreds of deaths attributable to benzene exposure. Expert after expert testified that no safe level of exposure had been shown and that the extent of the risk declined with the exposure level. There was some direct evidence of incidence of leukemia, nonmalignant blood disorders, and chromosomal damage at exposure levels of 10 ppm and below. Moreover, numerous experts testified that existing evidence required an inference that an exposure level above 1 ppm was hazardous. We have stated that "well-reasoned expert testimony—based on what is known and uncontradicted by empirical evidence— may in and of itself be `substantial evidence' when first-hand evidence on the question . . . is unavailable." FPC v. Florida Power & Light Co., 404 U. S. 453, 464-465 (1972). Nothing in the Act purports to prevent the Secretary from acting when definitive information as to the quantity of a standard's benefits is unavailable.^[111] Where, as here, the deficiency in [708] knowledge relates to the extent of the benefits rather than their existence, I see no reason to hold that the Secretary has exceeded his statutory authority.

B

The plurality avoids this conclusion through reasoning that may charitably be described as obscure. According to the plurality, the definition of occupational safety and health standards as those "reasonably necessary or appropriate to provide safe or healthful . . . working conditions" requires the Secretary to show that it is "more likely than not" that the risk he seeks to regulate is a "significant" one. Ante, at 653. The plurality does not show how this requirement can be plausibly derived from the "reasonably necessary or appropriate" clause. Indeed, the plurality's reasoning is refuted by the Act's language, structure, and legislative history, and it is foreclosed by every applicable guide to statutory construction. In short, the plurality's standard is a fabrication bearing no connection with the acts or intentions of Congress.

At the outset, it is important to observe that "reasonably necessary or appropriate" clauses are routinely inserted in regulatory legislation, and in the past such clauses have uniformly been interpreted as general provisos that regulatory actions must bear a reasonable relation to those statutory purposes set forth in the statute's substantive provisions. See, e. g., FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775, 796-797 (1978); Mourning v. Family Publications Service, Inc., 411 U. S. 356, 369 (1973); Thorpe [709] v. Housing Authority of City of Durham, 393 U. S. 268, 280-281 (1969). The Court has never—until today—interpreted a "reasonably necessary or appropriate" clause as having a substantive content that supersedes a specific congressional directive embodied in a provision that is focused more particularly on an agency's authority. This principle, of course, reflects the common understanding that the determination of whether regulations are "reasonably necessary" may be made only by reference to the legislative judgment reflected in the statute; it must not be based on a court's own, inevitably subjective view of what steps should be taken to promote perceived statutory goals.

The plurality suggests that under the "reasonably necessary" clause, a workplace is not "unsafe" unless the Secretary is able to convince a reviewing court that a "significant" risk is at issue. Ante, at 642. That approach is particularly embarrassing in this case, for it is contradicted by the plain language of the Act. The plurality's interpretation renders utterly superfluous the first sentence of § 655 (b) (5), which, as noted above, requires the Secretary to set the standard "which most adequately assures . . . that no employee will suffer material impairment of health." Indeed, the plurality's interpretation reads that sentence out of the Act. By so doing, the plurality makes the test for standards regulating toxic substances and harmful physical agents substantially identical to the test for standards generally—plainly the opposite of what Congress intended. And it is an odd canon of construction that would insert in a vague and general definitional clause a threshold requirement that overcomes the specific language placed in a standard-setting provision. The most elementary principles of statutory construction demonstrate that precisely the opposite interpretation is appropriate. See, e. g., FPC v. Texaco Inc., 417 U. S. 380, 394-395 (1974); Clark v. Uebersee Finanz-Korp., 332 U. S. 480, 488-489 (1947). In short, Congress could have provided that the Secretary may not take regulatory action until the existing [710] scientific evidence proves the risk at issue to be "significant,"^[112] but it chose not to do so.

The plurality's interpretation of the "reasonably necessary or appropriate" clause is also conclusively refuted by the legislative history. While the standard-setting provision that the plurality ignores received extensive legislative attention, the definitional clause received none at all. An earlier version of the Act, see n. 8, supra, did not embody a clear feasibility constraint and was not restricted to toxic substances or to "material" impairments. The "reasonably necessary or appropriate" clause was contained in this prior version of the bill, as it was at all relevant times. In debating this version, Members of Congress repeatedly expressed concern that it would require a risk-free universe. See, e. g., ante, at 646-649. The definitional clause was not mentioned at all, an omission that would be incomprehensible if Congress intended [711] by that clause to require the Secretary to quantify the risk he sought to regulate in order to demonstrate that it was "significant."

The only portions of the legislative history on which the plurality relies, see ibid., have nothing to do with the "reasonably necessary or appropriate" clause from which the "threshold finding" requirement is derived. Those portions consisted of criticisms directed toward the earlier version of the statute which already contained the definitional clause. These criticisms, in turn, were met by subsequent amendments that limited application of the strict "no employee will suffer" clause to toxic substances, inserted an explicit feasibility constraint, and modified the word "impairment" by the adjective "material." It is disingenuous at best for the plurality to suggest that isolated statements in the legislative history, expressing concerns that were met by subsequent amendments not requiring any "threshold" finding, can justify reading such a requirement into a "reasonably necessary" clause that was in the Act all along.^[113]

[712] The plurality's various structural arguments are also unconvincing. The fact that a finding of "grave danger" is required for temporary standards, see ante, at 640, n. 45, hardly implies that the Secretary must show for permanent standards that it is more probable than not that the substance to be regulated poses a "significant" risk. Nor is the reference to "toxic materials," ante, at 643, in any way informative. And the priority-setting provision, ante, at 643-644, cannot plausibly be read to condition the Secretary's standard-setting authority on an ability to meet the Court's "threshold" requirement.

The plurality ignores applicable canons of construction, apparently because it finds their existence inconvenient. But as we stated quite recently, the inquiry into statutory purposes should be "informed by an awareness that the regulation is entitled to deference unless it can be said not to be a reasoned and supportable interpretation of the Act." Whirlpool Corp. v. Marshall, 445 U. S. 1, 11 (1980). Can it honestly be said that the Secretary's interpretation of the Act is "unreasoned" or "unsupportable"? And as we stated in the same case, "safety legislation is to be liberally construed to effectuate the congressional purpose." Id., at 13. The plurality's disregard of these principles gives credence to the frequently voiced criticism that they are honored only when the Court finds itself in substantive agreement with the agency action at issue.

In short, today's decision represents a usurpation of decisionmaking authority that has been exercised by and properly belongs with Congress and its authorized representatives. [713] The plurality's construction has no support in the statute's language, structure, or legislative history. The threshold finding that the plurality requires is the plurality's own invention. It bears no relationship to the acts or intentions of Congress, and it can be understood only as reflecting the personal views of the plurality as to the proper allocation of resources for safety in the American workplace.

C

The plurality is obviously more interested in the consequences of its decision than in discerning the intention of Congress. But since the language and legislative history of the Act are plain, there is no need for conjecture about the effects of today's decision. "It is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated." TVA v. Hill, 437 U. S., at 185. I do not pretend to know whether the test the plurality erects today is, as a matter of policy, preferable to that created by Congress and its delegates: the area is too fraught with scientific uncertainty, and too dependent on considerations of policy, for a court to be able to determine whether it is desirable to require identification of a "significant" risk before allowing an administrative agency to take regulatory action. But in light of the tenor of the plurality opinion, it is necessary to point out that the question is not one-sided, and that Congress' decision to authorize the Secretary to promulgate the regulation at issue here was a reasonable one.

In this case the Secretary found that exposure to benzene at levels above 1 ppm posed a definite albeit unquantifiable risk of chromosomal damage, nonmalignant blood disorders, and leukemia. The existing evidence was sufficient to justify the conclusion that such a risk was presented, but it did not permit even rough quantification of that risk. Discounting for the various scientific uncertainties, the Secretary gave [714] "careful consideration to the question of whether th[e] substantial costs" of the standard "are justified in light of the hazards of exposure to benzene," and concluded that "these costs are necessary in order to effectuate the statutory purpose. . . and to adequately protect employees from the hazards of exposure to benzene." 43 Fed. Reg. 5941 (1978).

In these circumstances it seems clear that the Secretary found a risk that is "significant" in the sense that the word is normally used. There was some direct evidence of chromosomal damage, nonmalignant blood disorders, and leukemia at exposures at or near 10 ppm and below. In addition, expert after expert testified that the recorded effects of benzene exposure at higher levels justified an inference that an exposure level above 1 ppm was dangerous. The plurality's extraordinarily searching scrutiny of this factual record reveals no basis for a conclusion that quantification is, on the basis of "the best available evidence," possible at the present time. If the Secretary decided to wait until definitive information was available, American workers would be subjected for the indefinite future to a possibly substantial risk of benzene-induced leukemia and other illnesses. It is unsurprising, at least to me, that he concluded that the statute authorized him to take regulatory action now.

Under these circumstances, the plurality's requirement of identification of a "significant" risk will have one of two consequences. If the plurality means to require the Secretary realistically to "quantify" the risk in order to satisfy a court that it is "significant," the record shows that the plurality means to require him to do the impossible. But regulatory inaction has very significant costs of its own. The adoption of such a test would subject American workers to a continuing risk of cancer and other serious diseases; it would disable the Secretary from regulating a wide variety of carcinogens for which quantification simply cannot be undertaken at the present time.

[715] There are encouraging signs that today's decision does not extend that far.^[114] My Brother POWELL concludes that the Secretary is not prevented from taking regulatory action "when reasonable quantification cannot be accomplished by any known methods." See ante, at 666. The plurality also indicates that it would not prohibit the Secretary from promulgating safety standards when quantification of the benefits is impossible. See ante, at 656-657, and n. 63. The Court might thus allow the Secretary to attempt to make a very rough quantification of the risk imposed by a carcinogenic substance, and give considerable deference to his finding that the risk was significant. If so, the Court would permit the Secretary to promulgate precisely the same regulation involved in these cases if he had not relied on a carcinogen "policy," but undertaken a review of the evidence and the [716] expert testimony and concluded, on the basis of conservative assumptions, that the risk addressed is a significant one. Any other interpretation of the plurality's approach would allow a court to displace the agency's judgment with its own subjective conception of "significance," a duty to be performed without statutory guidance.

The consequences of this second approach would hardly be disastrous; indeed, it differs from my own principally in its assessment of the basis for the Secretary's decision in these cases. It is objectionable, however, for three reasons. First, the requirement of identification of a "significant" risk simply has no relationship to the statute that the Court today purports to construe. Second, if the "threshold finding" requirement means only that the Secretary must find "that there is a need for such a standard," ante, at 643, n. 48, the requirement was plainly satisfied by the Secretary's express statement that the standard's costs "are necessary in order to effectuate the statutory purpose . . . and to adequately protect employees from the hazards of exposure to benzene." 43 Fed. Reg. 5941 (1978). Third, the record amply demonstrates that in light of existing scientific knowledge, no purpose would be served by requiring the Secretary to take steps to quantify the risk of exposure to benzene at low levels. Any such quantification would be based not on scientific "knowledge" as that term is normally understood, but on considerations of policy. For carcinogens like benzene, the assumptions on which a dose-response curve must be based are necessarily arbitrary. To require a quantitative showing of a "significant" risk, therefore, would either paralyze the Secretary into inaction or force him to deceive the public by acting on the basis of assumptions that must be considered too speculative to support any realistic assessment of the relevant risk. See McGarity, Substantive and Procedural Discretion in Administrative Resolution of Science Policy Questions: Regulating Carcinogens in EPA and OSHA, 67 Geo. L. J. 729, 806 (1979). It is encouraging that the Court appears willing [717] not to require quantification when it is not fairly possible. See ante, at 656-657, and n. 63.

Though it is difficult to see how a future Congress could be any more explicit on the matter than was the Congress that passed the Act in 1970, it is important to remember that today's decision is subject to legislative reversal. Congress may continue to believe that the Secretary should not be prevented from protecting American workers from cancer and other fatal diseases until scientific evidence has progressed to a point where he can convince a federal court that the risk is "significant." Today's decision is objectionable not because it is final, but because it places the burden of legislative inertia on the beneficiaries of the safety and health legislation in question in these cases. By allocating the burden in this fashion, the Court requires the American worker to return to the political arena and to win a victory that he won once before in 1970. I am unable to discern any justification for that result.

D

Since the plurality's construction of the "reasonably necessary or appropriate" clause is unsupportable, I turn to a brief discussion of the other arguments that respondents offer in support of the judgment below.

First, respondents characterize the Act as a pragmatic statute designed to balance the benefits of a safety and health regulation against its costs. Respondents observe that the statute speaks in terms of relative protection by providing that safety must be assured "so far as possible," 29 U. S. C. § 651 (b), and by stating that the "no material impairment" requirement is to be imposed only "to the extent feasible."^[115] [718] Respondents contend that the term "feasible" should be read to require consideration of the economic burden of a standard, not merely its technological achievability. I do not understand the Secretary to disagree. But respondents present no argument that the expenditure required by the benzene standard is not feasible in that respect. The Secretary concluded on the basis of substantial evidence that the costs of the standard would be readily absorbed by the 20 affected industries. One need not define the feasibility requirement with precision in order to conclude that the benzene standard is "feasible" in the sense that it will not materially harm the financial condition of the regulated industries.

Respondents suggest that the feasibility requirement should be understood not merely to refer to a standard's expense, but also to mandate a finding that the benefits of an occupational safety and health standard bear a reasonable relation [719] to its costs. I believe that the statute's language, structure, and legislative history foreclose respondents' position. In its ordinary meaning an activity is "feasible" if it is capable of achievement, not if its benefits outweigh its costs. See Webster's Third New International Dictionary 831 (1976). Moreover, respondents' interpretation would render § 655 (b) (5) internally inconsistent by reading into the term "feasible" a requirement irreconcilable with the express language authorizing the Secretary to set standards assuring that "no employee will suffer material impairment. . . ." Respondents' position would render that language merely hortatory. As noted above, no cost-benefit analysis is referred to at any point in the statute or its legislative history, an omission which cannot be deemed inadvertent in light of the explicit cost-benefit requirements inserted into other regulatory legislation.^[116] Finally, the legislative history of the feasibility requirement, see n. 8, supra, demonstrates that Congress' sole concern was that standards be economically and technologically achievable. The legislative intent was to prevent the Secretary from materially harming the financial condition of regulated industries in order to eliminate risks of impairment. Congress did not intend to preclude the Secretary from taking regulatory action where, as here, no such threat to industry is posed.^[117]

[720] In order to decide these cases, however, it is not necessary to resolve the question whether the term "feasible" may contemplate some balancing of the costs and benefits of regulatory action.^[118] Taking into account the uncertainties in existing knowledge, the Secretary made an express finding that the hazards of benzene exposure were sufficient to justify the regulation's costs. 43 Fed. Reg. 5941 (1978). Any requirement to balance costs and benefits cannot be read to invalidate this wholly rational conclusion. A contrary result, forcing the Secretary to wait for quantitative data that may not be available in the foreseeable future, would run directly counter to the protective purposes of the Act.^[119]

[721] Finally, respondents suggest broadly that the Secretary did not fulfill his statutory responsibility to act on the basis of "research, demonstrations, experiments," and to consider "the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws." 29 U. S. C. § 655 (b) (5). Here, they contend, the Secretary based his decision solely on "views and arguments." Brief for Respondents American Petroleum Institute et al. 52. I disagree. The Secretary compiled an extensive record composed of over 50 volumes of exhibits. Most of those exhibits are the reported results of research and demonstrations representing "the latest available scientific data." The Secretary offered a careful discussion of these data in the statement accompanying the permanent standard. His ultimate conclusions were grounded in extensive findings of fact. Where, as here, there are gaps in existing knowledge, the Secretary's decision must necessarily be based on considerations of policy as well as on empirically verifiable facts.

In passing the Occupational Safety and Health Act of 1970, Congress was aware that it was authorizing the Secretary to regulate in areas of scientific uncertainty. But it intended to require stringent regulation even when definitive information was unavailable. In reducing the permissible level of exposure to benzene, the Secretary applied proper legal standards. His determinations are supported by substantial evidence. [722] The Secretary's decision was one, then, which the governing legislation authorized him to make.^[120]

IV

In recent years there has been increasing recognition that the products of technological development may have harmful effects whose incidence and severity cannot be predicted with certainty. The responsibility to regulate such products has fallen to administrative agencies. Their task is not an enviable one. Frequently no clear causal link can be established between the regulated substance and the harm to be averted. Risks of harm are often uncertain, but inaction has considerable costs of its own. The agency must decide whether to take regulatory action against possibly substantial risks or to wait until more definitive information becomes available—a judgment [723] which by its very nature cannot be based solely on determinations of fact.^[121]

Those delegations, in turn, have been made on the understanding that judicial review would be available to ensure that the agency's determinations are supported by substantial evidence and that its actions do not exceed the limits set by Congress. In the Occupational Safety and Health Act, Congress expressed confidence that the courts would carry out this important responsibility. But in these cases the plurality has far exceeded its authority. The plurality's "threshold finding" requirement is nowhere to be found in the Act and is antithetical to its basic purposes. "The fundamental policy questions appropriately resolved in Congress . . . are not subject to re-examination in the federal courts under the guise of judicial review of agency action." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U. S., at 558 (emphasis in original). Surely this is no less true of the decision to ensure safety for the American worker than the decision to proceed with nuclear power. See ibid.

Because the approach taken by the plurality is so plainly irreconcilable with the Court's proper institutional role, I am certain that it will not stand the test of time. In all likelihood, today's decision will come to be regarded as an extreme reaction to a regulatory scheme that, as the Members of the plurality perceived it, imposed an unduly harsh burden on regulated industries. But as the Constitution "does not enact Mr. Herbert Spencer's Social Statics," Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting), so the responsibility to scrutinize federal administrative action does not authorize this Court to strike its own balance between the [724] costs and benefits of occupational safety standards. I am confident that the approach taken by the plurality today, like that in Lochner itself, will eventually be abandoned, and that the representative branches of government will once again be allowed to determine the level of safety and health protection to be accorded to the American worker.

[1] Together with No. 78-1036, Marshall, Secretary of Labor v. American Petroleum Institute et al., also on certiorari to the same court.

[2] Briefs of amici curiae urging reversal were filed by John A. Fillion for the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; and by Richard E. Ayres for the Natural Resources Defense Council, Inc.

Briefs of amici curiae urging affirmance were filed by Alfred V. J. Prather for Anaconda Co.; by Anthony J. Obadal and Stephen C. Yohay for the Capital Legal Foundation; and by Robert V. Zener, Stephen A. Bokat, and William L. Kovacs for the Chamber of Commerce of the United States.

Briefs of amici curiae were filed by William J. Kilberg, Thaddeus Holt, and Lawrence Z. Lorber for ASARCO Inc.; by David B. Robinson for the Chocolate Manufacturers Association; and by James R. Richards for Joseph Cimino et al.

[3] The second and third sentences of this section, which impose feasibility limits on the Secretary and allow him to take into account the best available evidence in developing standards, may apply to all health and safety standards. This conclusion follows if the term "subsection" used in the second sentence refers to the entire subsection 6 (b) (which sets out procedures for the adoption of all types of health and safety standards), rather than simply to the toxic materials subsection, § 6 (b) (5). While MR. JUSTICE MARSHALL, post, at 694, and respondents agree with this position, see Brief for Respondents American Petroleum Institute et. al. 39; see also Currie, OSHA, 1976 Am. Bar Found. Research J. 1107, 1137, n. 151, the Government does not, see Brief for Federal Parties 58; see also Berger & Riskin, Economic and Technological Feasibility in Regulating Toxic Substances Under the Occupational Safety and Health Act, 7 Ecology L. Q. 285, 294 (1978). There is no need for us to decide this issue in these cases.

[4] OSHA is the administrative agency within the Department of Labor that is responsible for promulgating and enforcing standards under the Act. In this opinion, we refer to the "Secretary,' "OSHA" and the "Agency" interchangeably.

[5] "The Act imposes on OSHA the obligation to enact only standards that are reasonably necessary or appropriate to provide safe or healthful workplaces. If a standard does not fit in this definition, it is not one that OSHA is authorized to enact." 581 F. 2d, at 502.

[6] "Although 29 U. S. C. A. § 655 (b) (5) requires the goal of attaining the highest degree of health and safety protection for the employee, it does not give OSHA the unbridled discretion to adopt standards designed to create absolutely risk-free workplaces regardless of cost. To the contrary, that section requires standards to be feasible, and it contains a number of pragmatic limitations in the form of specific kinds of information OSHA must consider in enacting standards dealing with toxic materials. Those include `the best available evidence,' `research, demonstrations, experiments, and such other information as may be appropriate,' `the latest available scientific data in the field,' and `experience gained under this and other health and safety laws.' Moreover, in standards dealing with toxic materials, just as with all other occupational safety and health standards, the conditions and other requirements imposed by the standard must be `reasonably necessary or appropriate to provide safe or healthful employment and places of employment.' 29 U. S. C. A. § 652 (8)." Ibid.

[7] "The lack of substantial evidence of discernable benefits is highlighted when one considers that OSHA is unable to point to any empirical evidence documenting a leukemia risk at 10 ppm even though that has been the permissible exposure limit since 1971. OSHA's assertion that benefits from reducing the permissible exposure limit from 10 ppm to 1 ppm are likely to be appreciable, an assumption based only on inferences drawn from studies involving much higher exposure levels rather than on studies involving these levels or sound statistical projections from the high-level studies, does not satisfy the reasonably necessary requirement limiting OSHA's action. Aqua Slide requires OSHA to estimate the extent of expected benefits in order to determine whether those benefits bear a reasonable relationship to the standard's demonstrably high costs." Id., at 503-504.

[8] OSHA's figures indicate that 795,000 service station employees have some heightened exposure to benzene as a result of their employment. See 2 U. S. Dept. of Labor, OSHA, Technology Assessment and Economic Impact Study of an OSHA Regulation for Benzene, p. D-7 (May 1977) (hereinafter Economic Impact Statement), 11 Record, Ex. 5B, p. D-7. These employees are specifically excluded from the regulation at issue in this case. See infra, at 628. OSHA states that another 629,000 employees, who are covered by the regulation, work in the other industries described. 43 Fed. Reg. 5935 (1978).

It is not clear from the record or its explanation of the permanent standard how OSHA arrived at the estimate of 629,000 exposed employees. OSHA's consultant, Arthur D. Little, Inc., estimated that there were 191,000 exposed employees, 30,000 of whom were exposed to 1 ppm or more of benzene. 1 Economic Impact Statement, p. 3-5, 11 Record, Ex. 5A, p. 3-5. In its explanation of the permanent standard OSHA stated that there were 1,440 exposed employees who worked in benzene plants, 98,000 in other petroleum refineries, 24,000 in coke ovens, 4,000 in light oil plants, 2,760 in the petrochemical industry, 52,345 who worked in bulk terminals, 23,471 drivers who loaded benzene from those terminals, 74,000 in oil and gas production, 17,000 in pipeline work, 100 at tank-car facilities, 200 at tank-truck facilities, 480 on barges, 11,400 in tire-manufacturing plants, and 13,050 in other types of rubber production. 43 Fed. Reg. 5936-5938 (1978). Although OSHA gave no estimate for laboratory workers, the A.D. little study indicated that there were 25,000 exposed workers in that industry. These figures add up to 347,246 exposed employees— approximately 282,000 less than the overall estimate of 629,000. It is possible that some or all of these employees work in the "other industries" briefly described in OSHA's explanation; these are primarily small firms that manufacture adhesives, paint and ink or that use benzene solvents. Id., at 5939. No estimate of the number of exposed employees in those industries or the aggregate cost of compliance by those industries is given either by OSHA or by A.D. Little in its consulting report.

[9] Section 6 (a) of the Act, as set forth in U. S. C. § 655 (a), provides:

"Without regard to chapter 5 of Title 5 or to the other subsections of this section, the Secretary shall, as soon as practicable during the period beginning with the effective date of this chapter and ending two years after such date, by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard, unless he determines that the promulgation of such a standard would not result in improved safety or health for specifically designated employees. In the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees."

In this case the Secretary complied with the directive to choose the most protective standard by selecting the ANSI standard of 10 ppm, rather than the 25 ppm standard adopted by the American Conference of Government Industrial Hygienists. 43 Fed. Reg. 5919 (1978).

[10] See Delore & Borgomano, Leucemie aigue au cours de l'intoxication benzenique. Sur l'origine toxique de certaines leucemies aigues et leurs relations avec les anemies graves, 9 Journal de Medecine de Lyon 227 (1928). A translation of that document appears in the benzene administrative record. 2 Record, Ex. 2-60. See also Hunter, Chronic Exposure to Benzene (Benzol). II. The Clinical Effects, 21 J. Ind. Hyg. & Toxicol. 331 (1939), 3 Record, Ex. 2-74, which refers to "leucemia" as a side effect of chronic exposure to benzene.

[11] Dr. Muzaffer Aksoy, a Turkish physician who testified at the hearing on the proposed benzene standard, did a number of studies concerning the effects of benzene exposure on Turkish shoemakers. The workers in Dr. Aksoy's studies used solvents containing large percentages of benzene and were constantly exposed to high concentrations of benzene vapors (between 150 and 650 ppm) under poorly ventilated and generally unhygienic conditions. See Aksoy, Acute Leukemia Due to Chronic Exposure to Benzene, 52 Am. J. of Medicine 160 (1972), 1 Record, Ex. 2-29; Aksoy, Benzene (Benzol): Its Toxicity and Effects on the Hematopoietic System, Istanbul Faculty of Medicine Monograph Series No.51 (1970), 2 Record, Ex.2-55; Aksoy, Erdem, & DinCol, Leukemia in Shoe-Workers Exposed Chronically to Benzene, 44 Blood 837 (1974), 2 Record, Ex.2-53 (reporting on 26 shoeworkers who had contracted leukemia from 1967 to 1973; this represented an incidence of 13 per 100,000 rather than the 6 cases per 100,000 that would normally be expected).

Dr. Enrico Vigliani also reported an excess number of leukemia cases among Italian shoemakers exposed to glues containing a high percentage of benzene and workers in rotogravure plants who had been exposed over long periods of time to inks and solvents containing as much as 60% benzene. See Vigliani & Saita, Benzene and Leukemia, 271 New Eng. J. of Medicine 872-876 (1964), 1 Record, Ex. 2-27; Forni & Vigliani, Chemical Leukemogenesis in Man, 7 Ser. Haemat. 211 (1974), 2 Record, Ex. 2-50.

[12] Title 29 U. S. C. § 669 (a) (3) requires the Department of Health, Education, and Welfare (HEW) (now in part the Department of Health and Human Services) to develop "criteria" dealing with toxic materials and harmful physical agents that describe "exposure levels that are safe for various periods of employment." HEW's obligations under this section have been delegated to NIOSH, 29 U. S. C.§ 671.

[13] See Dept. of HEW, NIOSH, Criteria for a Recommended Standard— Occupational Exposure to Benzene 74-75 (Pub. No. 74-137, 1974), 1 Record, Ex. 2-3. In response to a letter from the director of the Office of Standards Division, NIOSH stated that its 10 ppm standard was designed to protect against leukemia, as well as other health risks. NIOSH noted, however, that further research was necessary in order to establish adequate dose-response data for benzene and leukemia. 12 Record, Ex. 32A, 32B.

[14] Aksoy published another study in 1976 reporting on an additional eight leukemia cases uncovered after 1973. In that article, he also noted that a 1969 ban on the use of benzene as a solvent had led to a decline in the number of reported leukemia cases beginning in 1974. Aksoy, Types of Leukemia in Chronic Benzene Poisoning, 55 Acta Haematologica 65 (1976), 1 Record, Ex. 2-30. Vigliani also noted a decline in leukemia cases in Italy after benzene was no longer used in glues and inks. See Vigliani & Forni, Benzene and Leukemia, 11 Environmental Res. 122 (1976), 1 Record, Ex. 2-15; Vigliani, Leukemia Associated with Benzene Exposure, 271 Annals N. Y. Acad. of Sciences 143 (1976), 2 Record, Ex. 2-49. In the latter study Vigliani noted that in the past 100% pure benzene solvents had been used and workers had been exposed on a prolonged basis to concentrations of 200-500 ppm, with peaks of up to 1500 ppm.

A number of epidemiological studies were also done among American rubber workers during this period Dr. A. J. McMichael's studies indicated a ninefold increase in the risk of contracting leukemia among workers who were heavily exposed in the 1940's and 1950's to pure benzene used as a solvent. McMichael, Spirtas, Kupper, & Gamble, Solvent Exposure and Leukemia Among Rubber Workers: An Epidemiologic Study, 17 J. of Occup. Med. 234, 238 (1975), 2 Record, Ex. 2-37. See also Andjelkovic, Taulbee, & Symons, Mortality Experience of a Cohort of Rubber Workers, 1964-1973, 18 J. of Occup. Med. 387 (1976), 2 Record, Ex. 2-54 (also indicating an excess mortality rate from leukemia among rubber workers).

[15] Section 655 (c) provides:

"(1) The Secretary shall provide, without regard to the requirements of chapter 5 of title, 5, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employers are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such standard is necessary to protect employees from such danger.

"(2) Such standard shall be effective until superseded by a standard promulgated in accordance with the procedures prescribed in paragraph (3) of this subsection.

"(3) Upon publication of such standard in the Federal Register the Secretary shall commence a proceeding in accordance with subsection (b) of this section, and the standard as published shall also serve as a proposed rule for the proceeding. The Secretary shall promulgate a standard under this paragraph no later than six months after publication of the emergency standard as provided in paragraph (2) of this subsection."

[16] At the hearing on the permanent standard NIOSH representatives testified that they had selected 1 ppm initially in connection with the issuance of a proposed standard for vinyl chloride. In that proceeding they had discovered that 1 ppm was approximately the lowest level detectable through the use of relatively unsophisticated monitoring instruments. With respect to benzene, they also thought that 1 ppm was an appropriate standard because any lower standard might require the elimination of the small amounts of benzene (in some places up to 0.5 ppm) that are normally present in the atmosphere. Tr. 1142-1143. NIOSH's recommendation was not based on any evaluation of the feasibility, either technological or economic, of eliminating all exposures above 1 ppm. Id., at 1156.

[17] Seven fatalities from leukemia were discovered out of the 748 workers surveyed. However, Dr. Infante, who conducted the study, stated that his statistical techniques had probably underestimated the number of leukemia cases that had actually occurred. Id., at 747. The normal expected incidence of leukemia in such a population would be 1.4. 2 Record, Ex. 2-51, p. 6.

[18] The authors' statement with respect to exposure levels was based on a 1946 report by the Ohio Industrial Commission indicating that, after some new ventilation equipment had been installed, exposures at the St. Marys plant had been brought within "safe" limits, in most instances ranging from zero to 10 to 15 ppm. Id., at 3. As the authors later admitted the level considered "safe" in 1946 was 100 ppm. Tr. 814-815. Moreover, only one of the seven workers who died of leukemia had begun working at St. Marys after 1946. Five of the others had worked at the Akron plant, which employed 310 of the 748 workers surveyed. Id., at 2537-2538. A 1948 report by the Ohio Department of health indicated exposure levels at the Akron plant of well over 100 ppm, with excursions in some areas up to 1,000 ppm. 17 Record, Ex. 84A, App. A, pp. 61-62. Surveys taken in the intervening years, as well as testimony by St. Marys employees at the hearing on the proposed standard, Tr. 3432-3437, indicated that both of the plants may have had relatively high exposures through the 1970's.

Industry representatives argued at the hearing that this evidence indicated that the exposure levels had been very high, as they had been in the other epidemiological studies conducted in the past. See Post-Hearing Brief for American Petroleum Institute in No. H-059 (OSHRC), pp. 23-37, 31 Record, Ex. 217-33, pp. 23-37. NIOSH witnesses, however, simply stated that actual exposure levels for the years in question could not be determined; they did agree, however, that their study should not be taken as proof of a fivefold increase in leukemia risk at 10-15 ppm. Tr, 814-815. In its explanation of the permanent standard, OSHA agreed with the NIOSH witness that no dose-response relationship could be inferred from the study:

"Comments at the hearing demonstrated that there were area exposures during this study period exceeding these levels [10-15 ppm], at times reaching values of hundreds of parts per million. Since no personal monitoring data are available, any conclusion regarding the actual individual time-weighted average exposure is speculative. Because of the lack of definitive exposure data, OSHA cannot derive any conclusions linking the excess leukemia risk observed with any specific exposure level." 43 Fed. Reg. 5927 (1978).

[19] OSHA also sought public comment as to whether certain industries should be exempt from compliance, whether the proposed compliance procedures and labeling techniques were adequate, what the environmental and economic consequences of the regulation would be, and whether it was feasible to replace benzene in solvents and other products of which it constituted more than 1%.

[20] It became clear at the hearing that OSHA had not promulgated the proposed standard in response to any new concern about the nonmalignant effects of low-level benzene exposure. See Tr. 126-127:

"Is it accurate to say that the reason why the—why OSHA has proposed to reduce the exposure limits in the standard below the current levels is because of a perceived risk of leukemia, and not because of any new evidence it has received that the current standards are inadequate to protect against acute or chronic benzene toxicity, other than leukemia?

"MR. WRENN: I think I will simply refer the part of my statement you were referring to, in which it says, it is however benzene's leukemogenicity which is of greatest concern to OSHA. That is certainly the central issue within the ETS [emergency temporary standard] and the proposed standard."

[21] Mr. Wrenn testified:

"The proposed standard requires that employee exposure to benzene in air be reduced to one part per million, with a five part per million ceiling allowable over any fifteen minute during an eight hour work shift, and prohibits eye or prolonged skin contact with liquid benzene.

"This airborne exposure limit is based on OSHA's established regulatory policy, that in the absence of a demonstrated safe level, or a no effect level for a carcinogen, it will be assumed that none exist, and that the agency will attempt to limit employee exposure to the lowest level feasible." Id., at 29-30.

See also:

"MR. WARREN: Mr. Wrenn, in promulgating the emergency temporary, and proposed permanent, benzene standards, OSHA heavily, and I am quoting from your testimony now, on the regulatory policy that there is no safe level for carcinogens at any—for any exposed population, and the fact that leukemia, and a leukemogen is a carcinogen, is that correct?

"MR. WRENN: I believe that I stated that slightly differently in any oral summary of the statement than it is stated in the statement itself. I said that in the absence of a known or demonstrated safe level or no effect level, our policy is to assume that none exists, and to regulate accordingly." Id., at 48-49.

"MR. WRENN: I would prefer to state it as I have on a couple of occasions already this morning, and that in the absence of a demonstrated safe level of exposure, we will assume that none exists for the purpose of regulatory policy." Id., at 50.

[22] In answer to the question of what demonstration would suffice to establish a "safe level," Mr. Wrenn stated:

"I would like to draw a distinction, however, between what I have referred to as the demonstration that a safe level exists, and speculation or elaborate theories that one may make, and I think that the agency in its history and very likely its future regulatory policy, would, in the face of evidence demonstrating that a carcinogenic hazard does exit or did exist, in this particular set of circumstances, would be very reluctant to accept as the basis for its regulatory decisions, a theoretical argument that a safe level may, in fact, exist for a particular substance." Id., at 51-52.

A NIOSH representative who testified later put it more succinctly, stating that ". . . if benzene causes leukemia, and if leukemia is a cancer, then exposure really is also moot." Id., at 1007.

[23] An amendment to the standard was promulgated on June 27, 1978. 43 Fed. Reg. 27962. See n. 22, infra.

[24] Apart from its exclusion of gasoline storage and distribution facilities (an exclusion retained in the final rule, see text, at n. 25, infra), the proposed rule also excluded from coverage work operations in which liquid mixtures containing 1% or less benzene were used. After a year this exclusion was to be narrowed to operations where 0.1% benzene solutions were used. The rationale for the exclusion was that airborne exposures from such liquids would generally be within the 1 ppm limit. However, testimony at the hearing on the proposed rule indicated that there was no "consistent predictable relationship" between benzene content in a liquid and the resulting airborne exposure. Therefore, OSHA abandoned the idea of a percentage exclusion for liquid benzene in its final standard. 43 Fed. Reg. 5942 (1978).

OSHA later reconsidered its position and, in an amendment to the permanent standard, reinstated an exclusion for liquids, setting the level at 0.5%, to-be reduced to 0.1% after three, years, id., at 27962.

[25] The exemption from the monitoring and medical testing portion of the standard for workplaces with benzene exposure levels below 0.5 ppm was not predicated on any finding that regulation of such workplaces was not feasible. OSHA's consultant, Arthur D. Little Inc., concluded that 1 ppm was a feasible exposure limit even assuming that there was no action level (or, to put it another way, assuming that the action level was zero). Rather, it was, as NIOSH witness stated, a practical decision based on a determination that, where benzene exposures are below 0.5 ppm, they will be unlikely ever to rise above the permissible exposure level of 1 ppm. NIOSH was also concerned that, in the absence of an action level, employers who used sophisticated analytical equipment might be required to monitor and provide medical examinations simply because of the presence of benzene in the ambient air. Tr. 1030-1032, 1133-1134.

[26] Indeed, in its explanation of the standard OSHA states that an employer is required to institute engineering controls (for example, installing new ventilation hoods) even if those controls are insufficient, by themselves, to achieve compliance and respirators must therefore be used as well. 43 Fed. Reg. 5952 (1978). OSHA's preference for engineering modifications is based on its opinion that respirators are rarely used properly (because they are uncomfortable, are often not properly fitted, etc.) and therefore cannot be considered adequate protective measures.

[27] It is also inapplicable to work operations involving 0.5% liquid benzene (0.1% after three years), see n.22, supra, and to the handling of benzene in sealed containers or systems, except insofar as employers are required to provide cautionary notices and appropriate employee training.

[28] Prior to the introduction of the action-level concept, A.D. Little estimated that compliance costs for the service station industry might be as high as $4 billion. Tr. 508-509. Moreover, A. D. Little's Economic Impact Statement indicated that service station employees were generally exposed to very low levels of benzene. 1 Economic Impact Statement, p. 4-21, 11 Record, Ex. 5A, p. 4-21. Still, in its explanation, accompanying the permanent standard OSHA did not rule out regulation of this industry entirely, stating that it was in the process of studying whether and to what extent it should regulate exposures to gasoline in general. 43 Fed. Reg. 5943 (1978).

[29] OSHA's estimate of recurring annual costs was based on the assumption that the exposure levels it had projected would be confirmed by initial monitoring and that, after the first year, engineering controls would be successful in bringing most exposures within the 1 ppm limit. Under these circumstances, the need for monitoring, medical examinations, and respirators would, of course, be drastically reduced.

[30] Three hundred of these employees work in benzene plants, 5,000 in other petroleum refineries, 4,000 in light oil plants, 552 in the petrochemical industry, 156 in benzene transportation, 1,250 in laboratories, 11,400 in tire-manufacturing plants, and 13,050 in other rubber-manufacturing plants. OSHA also estimated that another 16,216 workers (5,000 in petroleum refineries, 1,104 in the petrochemical industry, 7,300 in bulk terminals, 312 in benzene transportation, and 2,500 in laboratories) would be exposed to 0.5 to 1 ppm of benzene and thus would receive a benefit in terms of more comprehensive medical examinations. Id., at 5936-5938.

[31] The high cost per employee in the latter two industries is attributable to OSHA's policy of requiring engineering controls rather than allowing respirators to be used to reduce exposures to the permissible limit. The relatively low estimated cost per employee in the rubber industry is based on OSHA's assumption that other solvents and adhesives can be substituted for those that contain benzene and that capital costs will therefore not be required.

[32] the other issue before us is whether the Court of Appeals correctly refused to enforce the dermal contact ban. That issue is discussed in Part IV, infra.

In the court below respondents also challenged the monitoring and medical testing requirements,arguing that certain industries should have been totally exempt from them and that, as to other industries, the Agency had not demonstrated that all the requirements were reasonably necessary to ensure worker health and safety. They also argued that OSHA's requirement that the permissible exposure limit be met through engineering controls rather than through respirators was not reasonably necessary under the Act. Because it invalidated the 1 ppm exposure limit, the Fifth Circuit had no occasion to deal with these issues, and they are not now before this Court.

[33] As we have often held, the validity of an agency's determination must be judged on the basis of the agency's stated reasons for making that determination. See SEC v. Chenery Corp., 318 U. S. 80, 95 ("[A]n administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained"); FPC v. Texaco Inc., 417 U. S. 380, 397; FTC v. Sperry & Hutchinson Co., 405 U. S. 233,249.

[34] OSHA itself noted, some blood abnormalities caused by benzene exposure may not have any discernible health effects, while others may lead to significant impairment and even death. 43 Fed. Reg. 5921 (1978).

[35] A dose-response curve shows the relationship between different exposure levels and the risk of cancer [or any other disease] associated with those exposure levels. Generally, exposure to higher levels carries with it a higher risk, and exposure to lower levels is accompanied by a reduced risk." 581 F. 2d, at 504, n. 24.

OSHA's comments with respect to the insufficiency of the data were addressed primarily to the lack of data at low exposure levels. OSHA did not discuss whether it was possible to make a rough estimate, based on the more complete epidemiological and animal studies done at higher exposure levels, of the significance of the risks attributable to those levels, not did it discuss whether it was possible to extrapolate from such estimates to derive a risk estimate for low-level exposures.

[36] OSHA did not invoke the automatic rule of reducing exposures to the lowest limit feasible that it applies to cancer risks. Instead, the Secretary reasoned that prudent health policy merely required that the permissible exposure limit be set "sufficiently below the levels at which adverse effects have been observed to assure adequate protection for all exposed employees." 43 Fed. Reg. 5925 (1978). While OSHA concluded that application of this rule would lead to an exposure limit "substantially less than 10 ppm," it did not state either what exposure level it considered to present a significant risk of harm or what safety factor should be applied to that level to establish a permissible exposure limit.

[37] While citing these studies, OSHA also noted that other studies of similarly exposed workers had not indicated any increased level of chromosome damage.

[38] "The evidence in the record conclusively establishes that benzene is a human carcinogen. The determination of benzene's leukemogenicity is derived from the evaluation of all the evidence in totality and is not based on any one particular study. OSHA recognizes, as indicated above that individual reports vary considerably in quality, and that some investigations have significant methodological deficiencies. While recognizing the strengths and weaknesses in individual studies, OSHA nevertheless concludes that the benzene record as a whole clearly establishes a casual relationship between benzene and leukemia." Id., at 5931.

[39] In rejecting these studies, OSHA stated that: "Although the epidemiological method can provide strong evidence of a causal relationship between exposure and disease in the case of positive findings, it is by its very nature relatively crude and an insensitive measure." After noting a number of specific ways in which such studies are often defective, the Agency stated that it is "OSHA's policy when evaluating negative studies, to hold them to higher standards of methodological accuracy." Id., at 5931-5932. Viewing the industry studies in this light, OSHA concluded that each of them had sufficient methodological defects to make them unreliable indicators of the safety of low-level exposures to benzene.

[40] OSHA rejected this testimony in part because it believed the exposure data in the epidemiological studies to be inadequate to formulate a dose-response curve. It also indicated that even if the testimony was accepted— indeed as long as there was any increase in the risk of cancer—the Agency was under an obligation to "select the level of exposure which is most protective of exposed employers." Id., at 5941.

[41] In this dissenting opinion, MR. JUSTICE MARSHALL states that the Agency did not rely "blindly on some Draconian carcinogen `policy'" in setting a permissible exposure limit for benzene. He points to the large number of witness the Agency heard and the voluminous record it complied as evidence that it relied instead on the particular facts concerning benzene. With all due respect, we disagree with MR. JUSTICE MARSHALL'S interpretation of the Agency's rationale for its decision. After hearing the evidence, the Agency relied on the same policy view it had stated at the outset, see supra,at 623-625, namely, that, in the absence of clear evidence to the contrary, it must be assumed that no safe level exists for exposure to a carcinogen. The Agency also reached the entirely predictable conclusion that industry had not carried its concealed impossible burden, see n. 41, infra, of proving that a safe level of exposure exists for benzene. As the Agency made clear later in its proposed generic cancer policy, see n. 51 infra, it felt compelled to allow industry witnesses to go over the same ground in each regulation dealing with a carcinogen, despite its policy view. The generic policy, which has not yet gone into effect, was specifically designed to eliminate this duplication of effort in each case by foreclosing industry from arguing that there is a safe level for the particular carcinogen being regulated. 42 Fed. Reg. 54154-54155 (1977).

[42] "As stated above, the positive studies on benzene demonstrate the casual relationship of benzene to the induction of leukemia. Although these studies, for the most part involve high exposure levels, it is OSHA's view that once the carcinogenicity of a substance has been established qualitatively, any exposure must be considered to be attended by risk when considering any given population. OSHA therefore believes that occupational exposure to benzene at low levels poses a carcinogenic risk to workers." 43 Fed. Reg. 5932 (1978).

[43] The so-called "one hit" theory is based on laboratory studies indicating that one molecule of a carcinogen may react in the test tube with one molecule of DNA to produce a mutation. The theory is that, if this occurred in the human body, the mutated molecule could replicate over a period of years and eventually develop into a cancerous tumor. See OSHA's Proposed Rule on the Identification, Classification and Regulation of Toxic Substances Posing a Potential Carcinogenic Risk, 42 Fed. Reg. 54148, 54165-54167 (1977). Industry witnesses challenged this theory, arguing that the presence of several different defense mechanisms in the human body make it unlikely that a person would actually contract cancer as a result of absorbing one carcinogenic molecule. Thus, the molecule might be detoxified before reaching a critical site, damage to a DNA molecule might be repaired, or a mutated DNA molecule might be destroyed by the body's immunological defenses before it could develop into a cancer. Tr. 2836.

In light of the improbability of a person's contracting cancer as a result of a single hit, a number of the scientists testifying on both sides of the issue agreed that every individual probably does have a threshold exposure limit below which he or she will not contract cancer. See, e. g., id., at 1179-1181. The problem, however, is that individual susceptibility appears to vary greatly and there is at present no way to calculate each and every person's threshold. Thus, even industry witnesses agreed that if the standard must ensure with absolute certainty that every single worker is protected from any risk of leukemia, only a zero exposure limit would suffice. Id., at 2492, 2830.

[44] "There is no doubt that benzene is a carcinogen and must, for the protection and safety of workers, be regulated as such. Given the inability to demonstrate a threshold or establish a safe level, it is appropriate that OSHA prescribe that the permissible exposure to benzene be reduced to the lowest level feasible" 43 Fed. Reg. 5932 (1978).

[45] At an earlier point in its explanation, OSHA stated:

"There is general agreement that benzene exposure cause leukemia as well as other fatal diseases of the blood forming organs. In spite of the certainty of this conclusion, there does not exist an adequate scientific basis for establishing the quantitative does response relationship between exposure to benzene and the induction of leukemia and other blood diseases. The uncertainty in both the actual magnitude of expected deaths and in the theory of extrapolation from existing data to the OSHA exposure levels places the estimation of benefits on `the frontiers of scientific knowledge.' While the actual estimation of the number of cancers to be prevented is highly uncertain, the evidence indicates that the number may be appreciable. There is general agreement that even in the absence of the ability to establish a `threshold' or `safe' level for benzene and other carcinogens, a dose response relationship is likely to exist; that is, exposure to higher doses carries with it a higher risk of cancer, and conversely, exposure to lower levels is accompanied by a reduced risk, even though a precise quantitative relationship cannot be established." Id., at 5940.

[46] The court did, however, hold that the Agency's other conclusions— that there is some risk of leukemia at 10 ppm and that the risk would decrease by decreasing the exposure limit to 1 ppm—were supported by substantial evidence. 581 F. 2d, at 503.

[47] We cannot accept the argument that § 3 (8) is totally meaningless. The Act authorizes the Secretary to promulgate three different kinds of standards—national consensus standards, permanent standards, and temporary emergency standards. The only substantive criteria given for two of these—national consensus standards and permanent standards for safety hazards not covered by § 6 (b) (5)—are set forth in § 3. While it is true that § 3 is entitled "definitions," that fact does not drain each definition of substantive content. For otherwise there would be no purpose in defining the critical terms of the statute. Moreover, if the definitions were ignored, there would no statutory criteria at all to guide the Secretary in promulgating either national consensus standards or permanent standards other than those dealing with toxic materials and harmful physical agents. We may not except Congress to display perfect craftsmanship, but it is unrealistic to assume that it intended to give no direction whatsoever to the Secretary in promulgating most of his standards.

The structure of the separate subsection describing emergency temporary standards, 29 U. S. C. § 655 (c), quoted in n. 13, supra, supports this conclusion. It authorizes the Secretary to bypass the normal procedures for setting permanent standards if he makes two findings: (A) that employees are exposed to "grave danger" from exposure to toxic substances and (B) that an emergency standard is "necessary" to toxic protect the employees from that danger. Those findings are to be compared with those that are simplicity required by the definition of the permanent standard—(A) that there be a significant—as opposed to a "grave"—risk, and (B) that additional regulation is "reasonably necessary or appropriate"—as opposed to "necessary." It would be anomalous for Congress to require specific findings for temporary standards but to give the Secretary a carte blanche for permanent standards.

[48] The Government does not concede that the feasibility requirement in the second sentence of § 6 (b) (5) applies to health and safety standards other than toxic substances standards. See n. 1, supra. However, even if it did, the Government's interpretation of the term "feasible," when coupled with its view § 3 (8), would still allow the Agency to require the elimination of even insignificant risks at great cost, so long as an entire industry's viability would not be jeopardized.

[49] Section 6 (b) (5) parallels § 6 (a) in this respect. Section 6 (a) requires the Secretary, when faced with a choice between two national consensus standards, to choose the more protective standard, see n.7, supra. Just as § 6 (a) does not suggest that this more protective standard need not meet the definition of a national consensus standard set forth in § 3 (9), so § 6 (b) (5) does not suggest that the most protective toxic material standard need not conform to the definition of a "standard" in § 3 (8).

[50] The rest § 6 (b) (5), while requiring the Secretary to promulgate the standard that "most adequately assures . . . that no employee will suffer material impairment of health or functional capacity,"also contains phrases implying that the Secretary should consider differences in degrees of significance rather than simply a total elimination of all risks. Thus, the standard to be selected is one that "most adequately assures, to the extent feasible, on the basis of the best available evidence," that no such harm will result. The Secretary is also directed to take into account "research, demonstrations, experiments, and such other information as may be appropriate" and to consider "[i]n addition to the attainment of the highest degree of health and safety protection for the employee . . . the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws."

MR. JUSTICE MARSHALL states that our view of § 3 (8) would make the first sentence in § 6 (b) (5) superfluous. We disagree. The first sentence of § 6 (b) (5) requires the Secretary to select a highly protective standard once he has determined that a standard should be promulgated. The threshold finding that there is a need for such a standard in the sense that there is a significant risk in the workplace is not unlike the threshold finding that a chemical is toxic or a physical agent is harmful. Once the Secretary has made the requisite threshold finding, § 6 (b) (5) directs him to choose the most protective standard that still meets the definition of a standard under § 3 (8), consistent feasibility.

[51] "First, 29 U. S. C. § 655 (g) requires the Secretary to establish priorities in setting occupational health and safety standards so that the more serious hazards are addressed first. In setting such priorities the Secretary must, of course, consider the relative costs, benefits and risks." Reply Brief for Federal Parties 13. The Government argues that the Secretary's setting of priorities under this section is not subject to judicial review. Tr. of Oral Arg. 23. While we agree that a court cannot tell the Secretary which of two admittedly significant risks he should act to regulate first, this section, along with §§ 3 (8) and 6 (b) (5), indicates that the Act does limit the Secretary's power to requiring the elimination of significant risks.

[52] Section 6 (b) (8), as set forth in 28 U. S. C. § 655 (b) (8), provides:

"Whenever a rule promulgated by the Secretary differs substantially from an existing national consensus standard, the Secretary shall, at the same time, publish in the Federal Register a statement of the reasons why the rule as adopted will better effectuate the purposes of this chapter than the national consensus standard."

[53] OSHA's proposed generic cancer policy, 42 Fed. Reg. 54148 (1977), indicates that this possibility is not merely hypothetical. Under its proposal, whenever there is a certain quantum of proof—either from animal experiments, or, less frequently, from epidemiological studies—that a substance causes cancer at any exposure level, an emergency temporary standard would be promulgated immediately, requiring employers to provide monitoring and medical examinations and to reduce exposures to the lowest feasible level. A proposed rule would then be issued along the same lines, with objecting employers effectively foreclosed from presenting evidence that there is little or no risk associated with current exposure levels. Id., at 54154-54155; 29 CFR, Part 1990 (1977).

The scope of the proposed regulation is indicated by the fact that NIOSH has published a list of 2,415 potential occupational carcinogens, NIOSH, Suspected Carcinogens: A Subfile of the Registry of Toxic Effects of Chemical Substances (HEW Pub. No. 77-149, 2d ed. 1976). OSHA has tentatively concluded that 269 of these substances have been proved to be carcinogens and therefore should be subject to full regulation. See OSHA Press Release, USDL 78-625 (July 14, 1978).

[54] In criticizing the Committee bill, Senator Dominick also made the following observations:

"It is unrealistic to attempt, as this section apparently does, to establish a utopia free from any hazards. Absolute safety is an impossibility and it will only create confusion in the administration of this act for the Congress to set clearly unattainable goals." 116 Cong. Rec. 37614 (1970), Leg. Hist. 480.

"But I ask, Mr. President, just thinking about that language, let us take a fellow who is a streetcar conductor or a bus conductor at the present time. How in the world, in the process of the pollution we have in the streets or in the process of the automobile accidents that we have all during a working day of any one driving a bus or trolley car, or whatever it may be, can we set standards that will make sure he will not have any risk to his life for the rest of his life? It is totally impossible for this to be put in a bill; and yet it is in the committee bill." 116 Cong. Rec., at 37337, Leg. Hist. 423.

As an opponent of the legislation, Senator Dominick may have exaggerated the significance of the problem since the language in § 3 (8) already was sufficient to prevent the Secretary from trying "to establish a utopia free from any hazards." Nevertheless, the fact that Congress amended the bill to allay Senator Dominick's concern demonstrates that it did not intend the statute to achieve "clearly unattainable goals."

[55] Senator Dominick had also been concerned that the placement of the word "feasibly" could be read to require the Secretary to "ban all occupations in which there remains some risk of injury, impaired health, or life expectancy," since the way to most "adequately and "feasibly" assure absolute protection might well be to prohibit the occupation entirely. 116 Cong. Rec., at 36530, Leg. Hist. 366-367. In his final amendment, he attempted to cure this problem by relocating the feasibility requirement, changing "the standard which most adequately and feasibly assures" to "the standard which most adequately assures, to the extent feasible."

[56] MR. JUSTICE MARSHALL argues that Congress could not have thought § 3 (8) had any substantive meaning inasmuch as § 6 (b) (5), as originally drafted, applied to all standards and not simply to standards for toxic materials and harmful physical substances. However, as this legislative history indicates,it appears that the omission of the words "toxic substances" and "harmful physical agents" from the original draft of § 6 (b) (5) was entirely inadvertent. As Senator Dominick noted, the Committee had always intended that subsection to apply only to that limited category of substances. The reason that Congress drafted a special section for these substances was not, as MR. JUSTICE MARSHALL suggests, because it thought that there was a need for special protection in these areas. Rather, it was because Congress recognized that there were problems in regulating health risks as opposed to safety risks. In the latter case, the risks are generally immediate and obvious, while in the former, the risks may not be evident until a worker has been exposed for long periods of time to particular substances. It was to ensure that the Secretary took account of these long-term risks that Congress enacted § 6 (b) (5).

[57] Reply Brief for Federal Parties 24-26. While it is true that some of Senator Dominick's comments were concerned with the relative unimportance of minor injuries (see his "fly" example quoted supra, at 647), it is clear that he was also concerned with the remote possibility of major injuries, see n. 52, supra.

[58] One union suggested a 0.5 ppm permissible exposure limit for oil refineries and a 1 ppm ceiling (rather than a time-weighted average) exposure for all other industries, with no use of an action level, Tr. 1250, 1257. Another wanted a 1 ppm ceiling limit for all industries, id., at 3375-3376.

[59] "A need for an action level is also suggested by the record evidence that some minimal exposure to benzene occurs naturally from animal and plant matter (Tr. 749-750; 759-760). Naturally occurring benzene concentrations, it appears, many range from 0.02 to 15 per billion (Ex. 117, p. 1). Additionally, it was suggested by certain employers that their operations be exempted from the requirements of the standard because these operations involve only intermittent and low level exposures to benzene. The use of the action level concept should accommodate these concerns in all cases where exposures are indeed extremely low since it substantially reduces the monitoring of employees who are below the action level and removes for these employees the requirements for medical surveillance. At the same time, employees with significant overexposure are afforded the full protection of the standard." (Emphasis added.) 43 Fed. Reg. 5942 (1978).

[60] The Government also states that it is OSHA's policy to attempt to quantity benefits wherever possible. While this is certainly a reasonable position, it is not consistent with OSHA's own view of its duty under § 6 (b) (5). In light of the inconsistencies in OSHA's position and the legislative history of the Act, we decline to defer to the Agency's interpretation.

[61] In Florida Peach Growers Assn., Inc. v. U. S. Dept. of Labor, 489 F. 2d 120, 130, and n. 16 (CA5 1974), the court noted that Congress intended to restrict the use of emergency standards, which are promulgated without any notice or hearing. It held that, in promulgating an emergency standard, OSHA must find not only a danger of exposure or even some danger from exposure, but also a grave danger from exposure necessitating emergency action. Accord, Dry Color Mfrs. Assn., Inc. v. U. S. Dept. of Labor, 486 F. 2d 98, 100 (CA3 1973) (an emergency standard must be supported by something more than a possibility that a substance may cause cancer in man).

Congress also carefully circumscribed the Secretary's enforcement powers by crating a new, independent board to handle appeals from citations issued by the Secretary, for noncompliance with health and safety standards. See. 28 U. S. C. §§ 659-661.

[62] As noted above, OSHA acknowledged that there was no empirical evidence to support the conclusion that there was any risk whatsoever of deaths due to exposures at 10 ppm. What OSHA relied upon was a theory that, because leukemia deaths had occurred at much higher exposures, some (although fewer) were also likely to occur at relatively low exposures. The Court of Appeals specifically held that its conclusion that the number was "likely" to be appreciable was unsupported by the record. See supra, at 638.

[63] See Environmental Defense Fund, Inc. v. EPA, 179 U. S. App. D. C. 43, 49, 57-63, 548 F. 2d 998, 1004, 1012-1018 (1977), cert. denied, 431 U. S. 925, where the court rejected the argument that the EPA has the burden of proving that a pesticide is unsafe in order to suspend its registration under the Federal Insecticide, Fungicide, and Rodenticide Act. The court noted that Congress had deliberately shifted the ordinary burden of proof under the Administrative Procedure Act, requiring manufacturers to establish the continued safety of their products.

[64] In his dissenting opinion, post, at 706, MR. JUSTICE MARSHALL states: "[W]hen the question involves determination of the acceptable level of risk, the ultimate decision must necessarily be based on considerations of policy as well as empirically verifiable facts. Factual determinations can at most define the risk in some statistical way; the judgment whether that risk is tolerable cannot be based solely on a resolution of the facts." We agree. Thus, while the Agency must support its finding that a certain level risk exists by substantial evidence, we recognize that its determination that a particular level of risk is "significant" will be based largely on policy considerations. At this point we have no need to reach the issue of what level of scrutiny a reviewing court should apply to the latter type of determination.

[65] MR. JUSTICE MARSHALL states that, under our approach, the Agency must either wait for deaths to occur or must "deceive the public" by making a basically meaningless determination of significance based on totally inadequate-evidence. MR. JUSTICE MARSHALL's view, however, rests on the erroneous premise that the only reason OSHA did not attempt to quantify benefits in this case was because it could not do so in any reasonable manner. As the discussion of the Agency's rejection of an industry attempt at formulating a dose-response curve demonstrates, however, see supra, 635-655, the Agency's rejection of methods such as dose-response curves was based at least in part on its view that nothing less than absolute safety would suffice.

[66] For example,in the coke-oven emissions standard, OSHA had calculated that 21,000 exposed coke-oven workers had an annual excess mortality of over 200 and that the proposed standard might well eliminate the risk entirely. 41 Fed. Reg. 46742, 46750 (1976), upheld in American Iron & Steel Inst. v. OSHA, 577 F. 2d 825 (CA3 1978), cert. granted, post, p. 909. In hearings on the coke-oven emissions standard, the Council on Wage and Price Stability estimated that 8 to 35 lives would be saved each year, out of an estimated population of 14,000 workers, as a result of proposed standard. Although nothing that the range of benefits would vary depending on the assumptions used, OSHA did not make a finding as to whether its own staff estimate or CWPS's was correct, on the ground that it was not required to quantify the expected benefits of the standard or to weigh those benefits against the projected costs.

In other proceedings, the Agency has had a good deal of data from animal experiments on which it could base a conclusion on the significance of the risk. For example, the record on the vinyl chloride standard indicated that a significant number of animals had developed tumors of the liver, lung, and skin when they were exposed to 50 ppm of vinyl chloride over a period of 11 months. One hundred out of 200 animals died during that period. 39 Fed. Reg. 35890, 35891 (1974). Similarly, in a 1974 standard regulating 14 carcinogens, OSHA found that one of the substances had caused lung cancer in mice or rats at 1 ppm and even 0.1 ppm, while another had caused tumors in 80% of the animals subjected to high doses. Id., at 3756, 3757, upheld in Synthetic Organic Chemical Mfrs. Assn. v. Brennan, 503 F. 2d 1155 (CA3 1974), cert. denied, 420 U. S. 973, and Synthetic Organic Chemical Mfrs. Assn. v. Brennan, 506 F. 2d 385 (CA3 1974), cert. denied, 423 U. S. 830.

In this case the Agency did not have the benefit of animal studies, because scientists have been unable as yet to induce leukemia in experimental animals as a result of benzene exposure. It did, however, have a fair amount of epidemiological evidence, including both positive and negative studies. Although the Agency stated that this evidence was insufficient to construct a precise correlation between exposure levels and cancer risks, it would at least be helpful in determining whether it is more likely than not that there is a significant risk at 10 ppm.

[67] See GAF Corp. v. Occupational Safety and Health Review Comm'n, 183 U. S. App. D. C. 20, 561 F. 2d 913 (1977), where the court upheld the asbestos standard insofar as it required employers to provide medical examinations for employees exposed to any asbestos fibers, even if they were exposed to concentrations below the permissible exposure limit.

The respondent industry representatives have never disputed OSHA's power to require monitoring and medical examinations in general, although they did object to some of the specific requirements imposed in this case. See n. 30, supra. Because of our disposition of the case, we have no occasion to pass on these specific objections or to determine what cost-benefit considerations, if any, should govern the Agency's imposition of such requirements.

[68] This is precisely the type of information-gathering function that Congress had in mind when it enacted § 6 (b) (7), which empowers the Secretary to require medical examinations to be furnished to employees exposed to certain hazards and potential hazards "in order to most effectively determine whether the health of such employees is adversely affected by such exposure." See S. Rep. No. 91-1282, p. 7 (1970), Leg. Hist. 147.

[69] In its explanation of the final standard OSHA noted that there was some testimony that blood abnormalities would disappear after exposure had ceased. 43 Fed. Reg. 5946 (1978). Again, however, OSHA refused to rely on the hypothesis that this would always occur. Yet, in requiring medical examinations of employees exposed to between 0.5 ppm and 1 ppm, OSHA was essentially providing itself with the same kind of backstop.

[70] These portions of the plurality opinion address OSHA's special carcinogen policy, rather than OSHA's argument that it also made evidentially findings. I do not necessarily agree with every observation in the plurality opinion concerning the presence or a absence of such findings. I also express no view on the question whether a different interpretation of the statute would violate the non delegation doctrine of A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495 (1935), and Panama Refining Co. v. Ryan, 293 U. S. 495 (1935). See post, at 672-687 (REHNQUIST, J., concurring in judgment).

[71] The Secretary of Labor promulgated the relevant standard pursuant to his statutory authority. Since OSHA is the agency responsible for developing such regulations under the Secretary's direction, this opinion refers to "OSHA" or "the agency" as the decision-maker most directly concerned.

[72] OSHA has adopted a formal policy for regulating carcinogens effective April 21, 1980. 45 Fed. Reg. 5282 (1980) (to be codified at 29 CFR, Part 1990). But no such policy was in effect when the agency promulgated its benzene regulation. Moreover, neither the factual determinations nor the administrative judgments upon which the policy rests are supported adequately on this record alone. Accordingly, we have no occasion to consider the extent to which valid agency policies may supply a basis for finding that health risks exist in particular cases.

[73] OSHA argues that § 6 (b) (5) requires it to promulgate standards that are "feasible" only in the sense that they are "capable of achievement"; that is, achievable "at bearable cost with available technology." Brief for Federal Parties 57. the lower courts have indicated that a standard is not "infeasible" under OSHA's test unless it would precipitate "massive economic dislocation" in the affected industry. See, e. g., American Federation of Labor v. Brennan, 530 F. 2d 109, 123 (CA3 1975). In this case, OSHA simply asked a consulting firm to ascertain the costs of complying with a 1 ppm standard. See ante, at 621. OSHA then concluded that "the economic impact of [compliance] will not . . . threaten the financial welfare of the affected firms or the general economy." 43 Fed. Reg. 5939 (1978). The cost of complying with a standard, may be "bearable" and still not reasonably related to the benefits expected. A manufacturing company, for example, may have financial resources that enable it to pay the OSHA-ordered costs. But expenditures for unproductive purposes may limit seriously its financial ability to remain competitive and provide jobs.

[74] I will not repeat the detailed summary of the legislative history contained in the plurality opinion. Ante, at 646-652. Many of the considerations that the plurality relies upon to show Congress' concern with significant harms persuade me that Congress did not intend OSHA to reduce each significant hazard without regard to economic consequences. Senator Williams, a sponsor of the legislation, stated: "Our bill is fair and reasonable. It is a good-faith effort to balance the need of workers to have a sa[f]e and healthy work environment against the requirement of industry to function without undue interference." 116 Cong. Rec. 37342 (1970). Legislative history of the Occupational Safety and health Act of 1970 (Committee Print complied for the Senate Committee on Labor and Public Welfare), p. 435 (1971). There could be no such "balance" if OSHA were authorized to impose standards without regard to economic consequences short of serious dislocation.

Senator Dominick described a preliminary version of §6 (b) (5) as follows:

"What we were trying to do in the bill . . . was to say that when we are dealing with toxic agents or physical agents, we ought to take such steps as are feasible and practical to provide an atmosphere within which a person's health or safety would not be affected. Unfortunately, we had language providing that anyone [sic] would be assured that no one would have a hazard. . . .

"It was an unrealistic standard. . . ." 116 Cong. Rec. 37622 (1970), Legislative History, supra, at 502 (emphasis added).

Senator Dominick's objection to the "unrealistic" standard of the forerunner of § 6 (b) (5) does not imply that he thought § 3 (8) of the Act lacked substantive content. See post, at 710-711 (MARSHALL, J., dissenting). The Senator hardly would have proposed that § 6 (b) (5) be deleted entirely, see ante, at 647, if he had not thought that other sections of the Act required health regulations that were reasonable and practical.

[75] Congress has assigned OSHA an extremely difficult and complex task, and the guidance afforded OSHA is considerably less than clear. The agency's primary responsibility, reflected in its title, is to minimize health and safety risks in the workplace. Yet the economic health of our highly industrialized society requires a high rate of employment and adequate response to increasingly vigorous foreign competition. There can be little doubt that Congress intended OSHA to balance reasonably the societal interest in health and safety with the often conflicting goal of maintaining a strong national economy.

[76] For example, OSHA's reading of § 6 (b) (5) could force the depletion of an industry's resources in an effort to reduce a single risk by some speculative amount, even though other significant risks remain unregulated.

[77] The decision that costs justify benefits is largely a policy judgment delegated to OSHA by Congress. When a court reviews such judgments under the "substantial evidence" standard mandated by 29 U. S. C. § 655 (f), the court must determine whether the responsible agency has "careful[ly] identifi[ed] . . . the reasons why [it] chooses to follow one course rather than another" as the most reasonable method of effectuating the purposes of the applicable law. Industrial Union Dept. v. Hodgson, 162 U. S. App. D. C. 331, 339-340, 499 F. 2d 467, 475-476 (1974). Since OSHA failed to identify its reasons in these cases, I express no opinion as to the standard of review that may be appropriate in other situations.

[78] J. Locke, Second Treatise of Civil Government, in the Tradition of Freedom, ¶ 141, p. 244 (M. Mayer ed. 1957). In the same treatise, Locke also wrote that "[t]he legislative cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others." Ibid.

[79] As early as 1812, this Court had considered and rejected an argument that a statute authorizing the President to terminate a trade embargo on Britain and France if those two nations ceased violating "the neutral commerce of the United States" delegated too much discretion to the Executive Branch. See The Brig Aurora v. United States, 7 Cranch 382, 383, 386, 388.

[80] Respondents argue that, despite its seemingly general application, the original version of § 6 (b) (5) actually referred only to health hazards as opposed to safety hazards. See Addendum B to Brief for Respondents American Petroleum Institute et al. 5b-6b. In support of this proposition, they cite a portion of the legislative history where the House Committee on Education and Labor stated that the proposed version of § 6 (b) (5) would apply when the Secretary set an "occupational health standard." H. R. Rep. No. 91-1291, p. 18 (1970), Leg. Hist. 848.

[81] The legislative history indicates strongly that Senator Dominick himself saw little, if any, difference between the phrases "most adequately and feasibly assures" and "most adequately assures, to the extent feasible." In the course of his earlier attempt to delete the first sentence of § 6 (b) (5) entirely, be paraphrased the unamended version of that section as requiring the Secretary to promulgate standards that "most adequately and feasibly assure to the extent possible" that no employee would suffer harm. See 116 Cong. Rec. 36530 (1970), Leg. Hist. 367 (emphasis added). Unless Senator Dominick found a significant difference between the words "possible" and "feasible", it is clear that there is little difference between Senator Dominick's perception of what the unamended section required in the way of feasibility and what that section required after his amendment.

[82] Sections 211 (c) (2) (A) and (B) of the Clean Air Act, as amended on Dec. 31, 1970, 84 Stat. 1698, authorize the Environmental Protection Agency to regulate, control, or prohibit automotive fuel additives after "consideration of other technologically or economically feasible means of achieving emission standards. . . ." 42 U. S. C. § 7545 (c) (2) (A) (1976 ed., Supp. II) (emphasis added).

[83] See J. Ely, Democracy and Distrust, A Theory of Judicial Review 131-134 (1980); J. Freedman, Crisis and Legitimacy, The Administrative process and American Government 78-94 (1978); T. Lowi, The End of Liberalism; Ideology, Policy, and the Crisis of Public Authority 129-146, 297-299 (1969); Wright, Beyond Discretionary Justice, 81 Yale L. J. 575, 582-587 (1972); Waist-Deep in Regulation, Washington Post, Nov. 3, 1979, p. A10, col. 1. Cf. W. Douglas, Go East, Young Man 217 (1974).

[84] See K. Davis, Discretionary Justice: A Preliminary Inquiry 49-51 (1969); Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1693-1697 (1975). Cf. Jaffe, The Illusion of the Ideal Administration, 86 Harv. L. Rev. 1183, 1190, n. 37 (1973).

[85] This ruling would not have any effect upon standards governing toxic substances or harmful physical agents for which safe levels are feasible, upon extant standards promulgated as "national consensus standards" under § 6 (a), not upon the Secretary's authority to promulgate "emergency temporary standards" under § 6 (c).

[86] Legislative History of the Occupational Safety and Health Act of 1970 (Committee Print compiled for the Senate Committee on Labor and Public Welfare), p. iii (1971) (Foreword by Sen. Williams) (hereinafter Leg. Hist.).

[87] S. Rep. No. 91-1282, p. 2 (1970), Leg. Hist. 142.

[88] Leg. Hist. iii.

[89] S. Rep. No. 91-1282, p. 2 (1970), Leg. Hist. 142; 116 Cong. Rec. 37326 (1970), Leg. Hist. 415 (Sen. Williams); H. R. Rep. No. 91-1291, p. 19 (1970), Leg. Hist. 849; 116 Cong. Rec. 38392-38393 (1970), Leg. Hist. 1049 (Rep. Karth).

[90] 116 Cong. Rec. 38375 (1970), Leg. Hist. 1003 (Sen. Daniels).

[91] 116 Cong. Rec., at 37623, Leg. Hist. 503 (Sen. Dominick); H. R. No. 91-1291, p. 28 (1970), Leg. Hist. 858.

[92] See n. 34, infra.

[93] An earlier version of the bill had provided:

"The Secretary, in promulgating standards under this subsection, shall set the standard which most adequately and feasibly assures, on the basis of the best available evidence, that no employee will suffer any impairment of health or functional capacity, or diminished life expectancy even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." S. 2193, 91st Cong., 2d Sess., 39 (1970), Leg. Hist. 242.

This standard, it was feared, "could be read to require the Secretary to ban all occupations in which there remains some risk of injury, impaired health, or life expectancy. In the case of all occupations, it will be impossible to eliminate all risks to safety and health. Thus, the present criteria could, if literally applied, close every business in this nation. In addition, in many cases, the standard which might most `adequately' and `feasibly' assure the elimination of the danger would be the prohibition of the occupation itself." 116 Cong. Rec. 36530 (1970), Leg. Hist. 367 (Statement on Amendment of Sen. Dominick). In explaining the present language, Senator Dominick stated:

"What we were trying to do in the bill—unfortunately, we did not have the proper wording or the proper drafting—was to say that when we are dealing with toxic agents or physical agents, we ought to take such steps as are feasible and practical to provide an atmosphere within which a person's health or safety would not be affected. Unfortunately, we had language providing that anyone would be assured that no one would have a hazard . . . so that no one would have any problem for the rest of his working life.

"It was an unrealistic standard. As modified, we would be approaching the problem by looking at the problem and setting a standard or criterion which would not result in harm." 116 Cong. Rec., at 37622, Leg. Hist. 502.

[94] I do not, of course, suggest that it is appropriate for a federal court reviewing agency action blindly to defer to the agency's findings of fact and determinations of policy. Under Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 416 (1971), courts must undertake a "searching and careful" judicial inquiry into those factors. Such an inquiry is designed to require the agency to take a "hard look," Kleppe v. Sierra Club, 427 U. S. 390, 410, n. 21 (1976) (citation omitted), by considering the proper factors and weighing them in a reasonable manner. There is also room for especially rigorous judicial scrutiny of agency decisions under a rationale akin to that offered in United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938). See Environmental Defense Fund v. Ruckelshaus, 142 U. S. App. D. C. 74, 439 F. 2d 584 (1971).

I see no basis, however, for the approach taken by the plurality today, which amounts to nearly de novo review of questions of fact and of regulatory policy on behalf of institutions that are by no means unable to protect themselves in the political process. Such review is especially inappropriate when the factual questions at issue are ones about which the Court cannot reasonably be expected to have expertise.

[95] Tr. 258-259, 1039.

[96] Id., at 148, 200-201, 258.

[97] Id., at 145, 173-174, 352, 1227, 1928, 3206; 15 Record, Ex. 43B, p. 166.

[98] Id., at 149, 360-361, 997, 1023, 2543, 2689, 3203; 11 Record, Ex. 3.

[99] Tr. 149, 1218, 2692, 2847.

[100] Id., at 308, 314, 747, 768, 769-770, 874, 2445. As the Secretary observed, the issue of the exposure level in the NIOSH study was extensively debated during the hearings. A report from the Industrial Commission of Ohio suggested that concentrations generally ranged from zero to 10 or 15 ppm. But the Secretary concluded that evidence at the hearings showed that area exposures during the study period had sometimes substantially exceeded that level. Because of the conflicting evidence and the absence of monitoring data, he found that the excess leukemia risk observed in the NIOSH study could not be linked to any particular exposure level.

[101] As to the study on which industry relied most heavily, for example, the Secretary, largely repeating the author's own admissions, observed that (1) a number of employees included in the sample may not have been exposed to benzene at any time; (2) there was inadequate followup of numerous employees, so that persons who may have contracted leukemia were not included in the data; (3) the diagnoses were subject to serious question, and cases of leukemia may have gone unnoticed; (4) no determination of exposure levels had been made; and (5) the occupational histories of the workers were admittedly incomplete. 43 Fed. Reg. 5928 (1978).

[102] Tr. 1023-1024, 1227; 22A Record, Ex. 154.

[103] The testimony of Dr. Aksoy, one of the world's leading experts, was typical; "[E]ven one ppm . . . causes leukemia." Tr. 204. See also id., at 30, 150, 262, 328, 351-352, 363-364, 394, 745-746, 1057, 1210, 2420; 9 Record, Ex. 2.8-272, p. 1.

[104] Tr. 130, 360, 414-415, 416-417, 760-761, 781-782, 925, 1055-1056; 17 Record, Ex. 75, p. 2; 1 Record, Ex. 2-4, p. 11.

[105] Tr. 382, 401, 405, 1372, 2846, 2842-2843.

[106] Id., at 148-149 ("the permissible exposure limit for benzene should be zero") (testimony of Dr. Aksoy). See also id., at 1251 et seq., 3506 et seq.

[107] The plurality's estimate of the amount of expenditure per employee, see ante, at 629, is highly misleading. Most of the costs of the benzene standard would be incurred only once and would thus protect an unascertainable number of employees in the future; that number will be much higher than the number of employees currently employed.

[108] The projection, designed as an extrapolation from an amalgamation of existing studies, was dependent on a number of assumptions which the Secretary could reasonably view as questionable. Indeed, the witness himself stated that his estimate was based on "a lousy set of data," was "slightly better than a guess," Tr. 2772, and that there was "no real basis," id., at 2719, for a dose-response curve on which the estimate was wholly dependent.

The witness' assumptions were severely tested during the hearings, see id., at 2795 et seq., and the Secretary could reasonably reject them on the basis of the evidence in the record. For example: (1) The witness appeared to assume that in previous tests leukemia had been contracted after a lifetime of exposure; the evidence afforded no basis for that assumption, and the duration of exposure may have been quite short for particular employees. If the duration period was short, the witness' estimate would have been much too low. (2) The witness assumed that exposure levels in the NIOSH study were around 100 ppm. The Secretary found, however, that no such assumption could be made, and there was evidence that exposure levels had generally been between zero and 10-15 ppm. (3) The witness assumed that the dose-response curve was linear at all levels, but there was no basis for that assumption. In the case of vinyl chloride (another carcinogen for which the Secretary has promulgated exposure standards), recent evidence suggested that the dose-response curve rises steeply at low doses and becomes less steep as the levels are increased. (4) Twenty-five percent of the workers in the NIOSH study had not been found, and the witness assumed that they were still alive and would not contract leukemia. Six hundred additional workers exposed in that study were still alive; the witness assumed they too would not contract leukemia. There was considerable testimony that, for these and other reasons, the NIOSH study significantly underestimated the risk. The witness assumes that it had not. (5) The NIOSH study found a fivefold excess risk from benzene exposure; the witness assumed that the excess was much lower, despite the NIOSH finding and the testimony that that finding was a significant understatement of the risk. In light of these uncertainties, the Secretary could conclude that the witness' estimate was unsupportable.

[109] Witnesses testifying to the inability to construct a dose-response curve referred primarily to the impossibility of correlating the incidence of leukemia, blood disorders, and chromosomal damage with the levels and duration of exposure in past studies. Thus Dr. Herman Kraybill of the National Cancer Institute testified:

"[W]e like to estimate risk factors. This has been done, as many of you recall, with vinyl chloride several years ago.

". . . [T]o estimate the risk factors on [the basis of] experimental data, this presupposes if you have good toxicity data. When I say toxicity data, I mean good dose-response data on vinyl chloride, which indeed we did have that.

"But with benzene, it appeared that we didn't have this situation, so therefore, most of us gave up. . . .

.....

". . . With benzene, we sort of struck out." Id., at 760-761.

Because of the enormous uncertainties in levels and duration of exposure in prior studies, any assumptions would necessarily be arbitrary. The possible range of assumptions was so great that the ultimate conclusion would be entirely uninformative. See id., at 360, 415, 1055-1056.

[110] At one point the Secretary did indicate that appreciable benefits were "likely" to result. The Court of Appeals held that this conclusion was unsupported by substantial evidence. The Secretary's suggestion, however, was made in the context of a lengthy discussion intended to show that appreciable benefits "may" be predicted but that their likelihood could not be quantified. The suggestion should not be taken as a definitive statement that appreciable benefits were more probable than not.

For reasons stated infra, there is nothing in the Act to prohibit the Secretary from acting when he is unable to conclude that appreciable benefits are more probable than not.

[111] This is not to say that the Secretary is prohibited from examining relative costs and benefits in the process of setting priorities among hazardous substances, or that systematic consideration of costs and benefits is not to be attempted in the standard-setting process. Efforts to quantify costs and benefits, like statements of reasons generally, may help to promote informed consideration of decisional factors and facilitate judicial review. See Dunlop v. Bachowski, 421 U. S. 560, 571-574 (1975). The Secretary indicates that he has attempted to quantify costs and benefits in the past. See 43 Fed. Reg. 54354, 54427-54431 (1978) (lead); id., at 27350, 27378-27379 (cotton dust).

It is not necessary in the present litigation to say whether the Secretary must show a reasonable relation between costs and benefits. Discounting for the scientific uncertainty, the Secretary expressly—and reasonably— found such a relation here.

[112] It is useful to compare the Act with other regulatory statutes in which Congress has required a showing of a relationship between costs and benefits or of an "unreasonable risk." In some statutes Congress has expressly required cost-benefit analysis or a demonstration of some reasonable relation between costs and benefits. See 33 U. S. C. § 701a (Flood Control Act of 1936); 42 U. S. C. § 7545 (c) (2) (B) (1976 ed., Supp. II) (Clean Air Act); 33 U. S. C. § 1314 (b) (4) (B) (1976 ed., Supp. II) (Clean Water Act). In others Congress has imposed two independent requirements: that administrative action be "feasible" and justified by a balancing of costs and benefits, e. g., 43 U. S. C. § 1347 (b) (1976 ed., Supp. II) (Outer Continental Shelf Lands Act); 42 U. S. C. § 6295 (a) (2) (D) (1976 ed., Supp. II) (Energy Policy and Conservation Act). This approach demonstrates a legislative awareness of the difference between a feasibility constraint and a constraint based on weighing costs and benefits. See infra, at 719-720. In still others Congress has authorized regulation of "unreasonable risk," a term which has been read by some courts to require a balancing of costs and benefits. See, e. g., Aqua Slide `N' Dive Corp. v. Consumer Product Safety Comm'n, 569 F. 2d 831 (CA5 1978) (construing 15 U. S. C. § 2058 (c) (2) (A) (Consumer Product Safety Act)); Forester v. Consumer Product Safety Comm'n, 182 U. S. App. D. C. 153, 559 F. 2d 774 (1977) (construing 15 U. S. C. § 1261 (s) (Child Protection and Toy Safety Act)).

[113] The plurality also relies on its perception that if the "reasonably necessary" clause were not given the meaning it ascribes to it, there would be no guidance for "standards other than those dealing with toxic materials and harmful physical agents." Ante, at 640, n. 45. For two reasons this argument is without force. First, even if the "reasonably necessary" clause does have independent content, and even if that content is as the plurality describes it, it cannot under any fairminded reading supersede the express language of § 655 (b) (5) for toxic substances and harmful physical agents.

Second, as noted above, an earlier version of the bill applied the "no employee will suffer" language to all substances. At that time, there was no "gap," and accordingly it could not be argued that the "reasonably necessary or appropriate" clause had the content the plurality ascribes to it. In this light, the plurality's reasoning must be that when Congress amended the bill to apply the strict § 655 (b) (5) requirements only to toxic substances, the definitional clause gained an independent meaning that in turn comprehended all standards. But surely this argument turns congressional purposes on their head. It reasons that when Congress singled out toxic substances for special regulation, it simultaneously created a more lenient ("reasonably necessary") test for standards generally, and that once that more lenient test was applicable, it somehow superseded the strict requirements for toxic substances. That reasoning is both illogical and circular. Nor is there any basis for the plurality's suggestion, see ante, at 649, n. 54, that the original bill's application to all standards was "entirely inadvertent."

[114] The plurality suggests that it is for the agency "to determine, in the first instance, what it considers to be a `significant' risk," and that the agency "is free to use conservative assumptions in interpreting the data. . . ." Ante, at 655, 656. Moreover, my Brother POWELL would not require "quantification of risk in every case." Ante, at 666 (opinion concurring in part and concurring in judgment). As I read his opinion, MR. JUSTICE POWELL would have permitted the Secretary to promulgate the standard at issue here if the Secretary had provided a more carefully reasoned explanation of his conclusion that the risk at issue justified the admittedly significant costs of the benzene standard. MR. JUSTICE POWELL also suggests that such a conclusion would be subject to relatively deferential review. Ante, at 670-671, n. 8.

In this respect, the differences between my approach and that of MR. JUSTICE POWELL may be comparatively narrow. We are agreed on two propositions that I regard as critical to a fairminded interpretation of the Act: (1) the Secretary may regulate risks that are not subject to quantification on the basis of the "best available evidence"; and (2) the Secretary's judgment that a particular health risk merits regulatory action is subject to limited judicial scrutiny. It is encouraging that at least five Members of the Court accept these basic propositions.

For reasons stated in the text, however, I disagree with my Brother POWELL'S conclusion that it is appropriate to hold in these cases that the Act requires the Secretary to show a reasonable relationship between costs and benefits.

[115] Finding obscurity in the word "feasible," my Brother REHNQUIST invokes the nondelegation doctrine, which was last used to invalidate an Act of Congress in 1935. A. L. A. Schecter Poultry Corp. v. United States, 295 U. S. 495 (1935). While my Brother REHNQUIST eloquently argues that there remains a place for such a doctrine in our jurisprudence, I am frankly puzzled as to why the issue is thought to be of any relevance here. The nondelegation doctrine is designed to assure that the most fundamental decisions will be made by Congress, the elected representatives of the people, rather than by administrators. Some minimal definiteness is therefore required in order for Congress to delegate its authority to administrative agencies.

Congress has been sufficiently definite here. The word "feasible" has a reasonably plain meaning, and its interpretation can be informed by other contexts in which Congress has used it. See n. 27, supra. Since the term is placed in the same sentence with the "no employee will suffer" language, it is clear that "feasible" means technologically and economically achievable. Under the Act, the Secretary is afforded considerably more guidance than are other administrators acting under different regulatory statutes. In short, Congress has made "the critical policy decisions" in these cases, see ante, at 687 (REHNQUIST, J., concurring in judgment).

The plurality's apparent suggestion, see ante, at 646, that the nondelegation doctrine might be violated if the Secretary were permitted to regulate definite but nonquantifiable risks is plainly wrong. Such a statute would be quite definite and would thus raise no constitutional question under Schechter Poultry. Moreover, Congress could rationally decide that it would be better to require industry to bear "feasible" costs than to subject American workers to an indeterminate risk of cancer and other fatal diseases.

[116] See n. 27, supra.

[117] Congress' antipathy toward cost-benefit balancing is evident throughout the legislative history of the Act. For example:

"The costs that will be incurred by employers in meeting the standards of health and safety to be established under this bill are, in my view, reasonable and necessary costs of doing business. Whether we as individuals, are motivated by simple humanity or by simple economics, we can no longer permit profits to be dependent upon an unsafe or unhealthy worksite." 116 Cong. Rec. 41766 (1970), Leg. Hist. 1150-1151 (Sen. Eagleton).

Similarly, Senator Yarborough stated:

"We are talking about people's lives, not the indifference of some cost accountants. We are talking about assuring the men and women who work in our plants and factories that they will go home after a day's work with their bodies intact. We are talking about assuring our American workers who wo[r]k with deadly chemicals that when they have accumulated a few year's seniority they will not have accumulated lung congestion and poison in their bodies, or something that will strike them down before they reach retirement age." 116 Cong. Rec., at 37625, Leg. Hist. 510.

[118] Nor need I discuss the possibility, raised by counsel for the federal parties in oral argument, that a decision to regulate a substance posing a negligible threat to health and safety could itself be challenged as arbitrary and capricious under the Administrative Procedure Act. See Tr. of Oral Arg. 23.

[119] Respondents also rely on the statutory requirement that the Secretary may act only to prevent "material" impairment. They contend that the standard promulgated here does not fall within that category because the risk is so low. This interpretation derives no support from the statute or its legislative history. The statute itself states that standards should ensure that no employee will suffer "material impairment," not material risk of impairment.

The language is consistent with the legislative history. In an early version of the Act, the word "impairment" was modified by "any" rather than "material." See n. 8, supra. The feasibility and materiality requirements were added simultaneously as part of an effort to qualify the original language authorizing the Secretary to ensure that "no employee will suffer any impairment of health or functional capacity, or diminished life expectancy." Senator Dominick was concerned that the phrase "any" impairment would require the Secretary to prevent insect bites. 116 Cong. Rec. 36522 (1970), Leg. Hist. 345.

The respondents' construction would pose an enormous obstacle to efforts to regulate toxic substances under § 655 (b) (5). The probability of contracting cancer will in most contexts be quite small with respect to any particular employee. If the statute were read to authorize the Secretary to act only to assure that "no employee will suffer material risk of impairment," the Secretary would be disabled from regulating substances which poses a small risk with respect to any particular employee but which will nonetheless result in the death of numerous members of the employee pool.

[120] Although the Court of Appeals accepted the Secretary's finding that dermal contact with benzene could cause leukemia, it set aside the dermal contact standard because of the Secretary's failure to perform an experiment recommended by an industry witness. The failure to conduct this test, according to the court, violated the statutory requirement that the Secretary act on the basis of "the best available evidence" and "the latest available scientific data in the field."

In the hearings before the agency, respondents presented no substantial challenge to the position that benzene could be absorbed through the skin, and there was evidence in the record to support that position. Both animal and human studies had found such absorption. In these circumstances, the Secretary was not obligated to undertake additional studies simply because a witness testified that such studies would be informative. The imposition of such a requirement would paralyze the standard-setting process. The Secretary's mandate is to act on the basis of "available" evidence, not evidence which may become available in the future.

In setting aside the dermal contact standard, the Court of Appeals also relied on its conclusion that the Secretary had not shown that quantifiable benefits would result from the standard. As the discussion above indicates, the court applied incorrect legal standards in so holding.

[121] See W. Lowrance, Of Acceptable Risk: Science and the Determination of Safety (1976); Stewart, Paradoxes of Liberty, Integrity and Fraternity: The Collective Nature of Environmental Quality and Judicial Review of Administrative Action, 7 Environ. L. 463, 469-472 (1977).

276 U.S. 394 (1928)

CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS APPEALS.

[395] Mr. Walter E. Hampton for petitioner.

[400] MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.

J.W. Hampton, Jr., & Company made an importation into New York of barium dioxide, which the collector of customs assessed at the dutiable rate of six cents per pound. This was two cents per pound more than that fixed by statute, par. 12, ch. 356, 42 Stat. 858, 860. The rate was raised by the collector by virtue of the proclamation of the President, 45 Treas. Dec. 669, T.D. 40216, issued under, and by authority of, § 315 of Title III of the Tariff Act of September 21, 1922, ch. 356, 42 Stat. 858, 941, which is the so-called flexible tariff provision. Protest was made and an appeal was taken under § 514, Part 3, Title IV, ch. 356, 42 Stat. 969-70. The case came on for hearing before the United States Customs Court, 49 Treas. Dec. 593. A majority held the Act constitutional. Thereafter the case was appealed to the United States Court of Customs Appeals. On the 16th day of October, 1926, the Attorney General certified that in his opinion the case was of such importance as to render expedient its review by this Court. Thereafter the judgment of the United States Customs Court was affirmed. [401] 14 Ct. Cust. App. 350. On a petition to this Court for certiorari, filed May 10, 1927, the writ was granted, 274 U.S. 735. The pertinent parts of § 315 of Title III of the Tariff Act, ch. 356, 42 Stat. 858, 941 U.S.C., Tit. 19, §§ 154, 156, are as follows:

"Section 315(a). That in order to regulate the foreign commerce of the United States and to put into force and effect the policy of the Congress by this Act intended, whenever the President, upon investigation of the differences in costs of production of articles wholly or in part the growth or product of the United States and of like or similar articles wholly or in part the growth or product of competing foreign countries, shall find it thereby shown that the duties fixed in this Act do not equalize the said differences in costs of production in the United States and the principal competing country he shall, by such investigation, ascertain said differences and determine and proclaim the changes in classifications or increases or decreases in any rate of duty provided in this Act shown by said ascertained differences in such costs of production necessary to equalize the same. Thirty days after the date of such proclamation or proclamations, such changes in classification shall take effect, and such increased or decreased duties shall be levied, collected, and paid on such articles when imported from any foreign country into the United States or into any of its possessions (except the Philippine Islands, the Virgin Islands, and the islands of Guam and Tutuila): Provided, That the total increase or decrease of such rates of duty shall not exceed 50 per centum of the rates specified in Title I of this Act, or in any amendatory Act. . . .

"(c). That in ascertaining the differences in costs of production, under the provisions of subdivisions (a) and (b) of this section, the President, in so far as he finds it practicable, shall take into consideration (1) the differences [402] in conditions in production, including wages, costs of material, and other items in costs of production of such or similar articles in the United States and in competing foreign countries; (2) the differences in the wholesale selling prices of domestic and foreign articles in the principal markets of the United States; (3) advantages granted to a foreign producer by a foreign government, or by a person, partnership, corporation, or association in a foreign country; and (4) any other advantages or disadvantages in competition.

"Investigations to assist the President in ascertaining differences in costs of production under this section shall be made by the United States Tariff Commission, and no proclamation shall be issued under this section until such investigation shall have been made. The commission shall give reasonable public notice of its hearings and shall give reasonable opportunity to parties interested to be present, to produce evidence, and to be heard. The commission is authorized to adopt such reasonable procedure, rules, and regulations as it may deem necessary.

"The President, proceeding as hereinbefore provided for in proclaiming rates of duty, shall, when he determines that it is shown that the differences in costs of production have changed or no longer exist which led to such proclamation, accordingly as so shown, modify or terminate the same. Nothing in this section shall be construed to authorize a transfer of an article from the dutiable list to the free list or from the free list to the dutiable list, nor a change in form of duty. Whenever it is provided in any paragraph of Title I of this Act, that the duty or duties shall not exceed a specified ad valorem rate upon the articles provided for in such paragraph, no rate determined under the provision of this section upon such articles shall exceed the maximum ad valorem rate so specified."

[403] The President issued his proclamation May 19, 1924. After reciting part of the foregoing from § 315, the proclamation continued as follows:

"Whereas, under and by virtue of said section of said act, the United States Tariff Commission has made an investigation to assist the President in ascertaining the differences in costs of production of and of all other facts and conditions enumerated in said section with respect to . . . barium dioxide, . . .

"Whereas in the course of said investigation a hearing was held, of which reasonable public notice was given and at which parties interested were given a reasonable opportunity to be present, to produce evidence, and to be heard;

"And whereas the President upon said investigation . . . has thereby found that the principal competing country is Germany, and that the duty fixed in said title and act does not equalize the differences in costs of production in the United States and in . . . Germany, and has ascertained and determined the increased rate of duty necessary to equalize the same.

"Now, therefore, I, Calvin Coolidge, President of the United States of America, do hereby determine and proclaim that the increase in the rate of duty provided in said act shown by said ascertained differences in said costs of production necessary to equalize the same is as follows:

"`An increase in said duty on barium dioxide (within the limit of total increase provided for in said act) from 4 cents per pound to 6 cents per pound.

"`In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

"`Done at the City of Washington this nineteenth day of May in the year of our Lord one thousand nine hundred and twenty-four, and of the Independence of the [404] United States of America the one hundred and forty-eighth.

"`Calvin Coolidge.

"`By the President: Charles E. Hughes, Secretary of State.'"

The issue here is as to the constitutionality of § 315, upon which depends the authority for the proclamation of the President and for two of the six cents per pound duty collected from the petitioner. The contention of the taxpayers is two-fold — first, they argue that the section is invalid in that it is a delegation to the President of the legislative power, which by Article I, § 1 of the Constitution, is vested in Congress, the power being that declared in § 8 of Article I, that the Congress shall have power to lay and collect taxes, duties, imposts and excises. The second objection is that, as § 315 was enacted with the avowed intent and for the purpose of protecting the industries of the United States, it is invalid because the Constitution gives power to lay such taxes only for revenue.

First. It seems clear what Congress intended by § 315. Its plan was to secure by law the imposition of customs duties on articles of imported merchandise which should equal the difference between the cost of producing in a foreign country the articles in question and laying them down for sale in the United States, and the cost of producing and selling like or similar articles in the United States, so that the duties not only secure revenue but at the same time enable domestic producers to compete on terms of equality with foreign producers in the markets of the United States. It may be that it is difficult to fix with exactness this difference, but the difference which is sought in the statute is perfectly clear and perfectly intelligible. Because of the difficulty in practically determining what that difference is, Congress seems to have [405] doubted that the information in its possession was such as to enable it to make the adjustment accurately, and also to have apprehended that with changing conditions the difference might vary in such a way that some readjustments would be necessary to give effect to the principle on which the statute proceeds. To avoid such difficulties, Congress adopted in § 315 the method of describing with clearness what its policy and plan was and then authorizing a member of the executive branch to carry out this policy and plan, and to find the changing difference from time to time, and to make the adjustments necessary to conform the duties to the standard underlying that policy and plan. As it was a matter of great importance, it concluded to give by statute to the President, the chief of the executive branch, the function of determining the difference as it might vary. He was provided with a body of investigators who were to assist him in obtaining needed data and ascertaining the facts justifying readjustments. There was no specific provision by which action by the President might be invoked under this Act, but it was presumed that the President would through this body of advisers keep himself advised of the necessity for investigation or change, and then would proceed to pursue his duties under the Act and reach such conclusion as he might find justified by the investigation, and proclaim the same if necessary.

The Tariff Commission does not itself fix duties, but before the President reaches a conclusion on the subject of investigation, the Tariff Commission must make an investigation and in doing so must give notice to all parties interested and an opportunity to adduce evidence and to be heard.

The well-known maxim "Delegata potestas non potest delegari," applicable to the law of agency in the general and common law, is well understood and has had wider [406] application in the construction of our Federal and State Constitutions than it has in private law. The Federal Constitution and State Constitutions of this country divide the governmental power into three branches. The first is the legislative, the second is the executive, and the third is the judicial, and the rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the State executive, the Governor, the executive power, and the Courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination.

The field of Congress involves all and many varieties of legislative action, and Congress has found it frequently necessary to use officers of the Executive Branch, within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in such officers to make public regulations interpreting a statute and directing the details of its execution, even to the extent of providing for penalizing a breach of such regulations. United States v. Grimaud, 220 U.S. 506, 518; Union Bridge Co. v. United States, 204 U.S. 364; Buttfield v. [407] Stranahan, 192 U.S. 470; In re Kollock, 165 U.S. 526; Oceanic Navigation Co. v. Stranahan, 214 U.S. 320.

Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave the determination of such time to the decision of an Executive, or, as often happens in matters of state legislation, it may be left to a popular vote of the residents of a district to be effected by the legislation. While in a sense one may say that such residents are exercising legislative power, it is not an exact statement, because the power has already been exercised legislatively by the body vested with that power under the Constitution, the condition of its legislation going into effect being made dependent by the legislature on the expression of the voters of a certain district. As Judge Ranney of the Ohio Supreme Court in Cincinnati, Wilmington and Zanesville Railroad Co. v. Commissioners, 1 Ohio St. 77, 88, said in such a case:

"The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." See also Moers v. Reading, 21 Penn. St. 188, 202; Locke's Appeal, 72 Penn. St. 491, 498.

Again, one of the great functions conferred on Congress by the Federal Constitution is the regulation of interstate commerce and rates to be exacted by interstate carriers for the passenger and merchandise traffic. The rates to be fixed are myriad. If Congress were to be required to fix every rate, it would be impossible to exercise the power at all. Therefore, common sense requires that in the fixing of such rates, Congress may provide a Commission, [408] as it does, called the Interstate Commerce Commission, to fix those rates, after hearing evidence and argument concerning them from interested parties, all in accord with a general rule that Congress first lays down, that rates shall be just and reasonable considering the service given, and not discriminatory. As said by this Court in Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194, 214, "The Congress may not delegate its purely legislative power to a commission, but, having laid down the general rules of action under which a commission shall proceed, it may require of that commission the application of such rules to particular situations and the investigation of facts, with a view to making orders in a particular matter within the rules laid down by the Congress."

The principle upon which such a power is upheld in state legislation as to fixing railway rates is admirably stated by Judge Mitchell, in the case of State v. Chicago, Milwaukee & St. Paul Railway Company, 38 Minn. 281, 298 to 302. The learned Judge says on page 301:

"If such a power is to be exercised at all, it can only be satisfactorily done by a board or commission, constantly in session, whose time is exclusively given to the subject, and who, after investigation of the facts, can fix rates with reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates to suit the ever-varying conditions of traffic. . . . Our legislature has gone a step further than most others, and vested our commission with full power to determine what rates are equal and reasonable in each particular case. Whether this was wise or not is not for us to say; but in doing so we can not see that they have transcended their constitutional authority. They have not delegated to the commission any authority or discretion as to what the law [409] shall be, — which would not be allowable, — but have merely conferred upon it an authority and discretion, to be exercised in the execution of the law, and under and in pursuance of it, which is entirely permissible. The legislature itself has passed upon the expediency of the law, and what it shall be. The commission is intrusted with no authority or discretion upon these questions." See also the language of Justices Miller and Bradley in the same case in this Court. 134 U.S. 418, 459, 461, 464.

It is conceded by counsel that Congress may use executive officers in the application and enforcement of a policy declared in law by Congress, and authorize such officers in the application of the Congressional declaration to enforce it by regulation equivalent to law. But it is said that this never has been permitted to be done where Congress has exercised the power to levy taxes and fix customs duties. The authorities make no such distinction. The same principle that permits Congress to exercise its rate making power in interstate commerce, by declaring the rule which shall prevail in the legislative fixing of rates, and enables it to remit to a rate-making body created in accordance with its provisions the fixing of such rates, justifies a similar provision for the fixing of customs duties on imported merchandise. If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under Congressional authority. This conclusion is amply sustained by a case in which there was no advisory commission [410] furnished the President — a case to which this Court gave the fullest consideration nearly forty years ago. In Field v. Clark, 143 U.S. 649, 680, the third section of the Act of October 1, 1890, contained this provision:

"That with a view to secure reciprocal trade with countries producing the following articles, and for this purpose, on and after the first day of January, eighteen hundred and ninety-two, whenever, and so often as the President shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agricultural or other products of the United States, which in view of the free introduction of such sugar, molasses, coffee, tea and hides into the United States he may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty to suspend, by proclamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea and hides, the production of such country, for such time as he shall deem just, and in such case and during such suspension duties shall be levied, collected, and paid upon sugar, molasses, coffee, tea and hides, the product of or exported from such designated country as follows, namely:"

Then followed certain rates of duty to be imposed. It was contended that this section delegated to the President both legislative and treaty-making powers and was unconstitutional. After an examination of all the authorities, the Court said that while Congress could not delegate legislative power to the President, this Act did not in any real sense invest the President with the power of legislation, because nothing involving the expediency or just operation of such legislation was left to the determination of the President; that the legislative power was exercised when Congress declared that the suspension should take effect upon a named contingency. What [411] the President was required to do was merely in execution of the act of Congress. It was not the making of law. He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.

Second. The second objection to § 315 is that the declared plan of Congress, either expressly or by clear implication, formulates its rule to guide the President and his advisory Tariff Commission as one directed to a tariff system of protection that will avoid damaging competition to the country's industries by the importation of goods from other countries at too low a rate to equalize foreign and domestic competition in the markets of the United States. It is contended that the only power of Congress in the levying of customs duties is to create revenue, and that it is unconstitutional to frame the customs duties with any other view than that of revenue raising. It undoubtedly is true that during the political life of this country there has been much discussion between parties as to the wisdom of the policy of protection, and we may go further and say as to its constitutionality, but no historian, whatever his view of the wisdom of the policy of protection, would contend that Congress, since the first revenue Act, in 1789, has not assumed that it was within its power in making provision for the collection of revenue, to put taxes upon importations and to vary the subjects of such taxes or rates in an effort to encourage the growth of the industries of the Nation by protecting home production against foreign competition. It is enough to point out that the second act adopted by the Congress of the United States, July 4, 1789, ch. 2, 1 Stat. 24, contained the following recital.

"SEC. 1. Whereas it is necessary for the support of government, for the discharge of the debts of the United States, and the encouragement and protection of manufactures, [412] that duties be laid on goods, wares and merchandises imported: Be it enacted, etc."

In this first Congress sat many members of the Constitutional Convention of 1787. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, long acquiesced in, fixes the construction to be given its provisions. Myers v. United States, 272 U.S. 52, 175, and cases cited. The enactment and enforcement of a number of customs revenue laws drawn with a motive of maintaining a system of protection, since the revenue law of 1789, are matters of history.

More than a hundred years later, the titles of the Tariff Acts of 1897 and 1909 declared the purpose of those acts, among other things, to be that of encouraging the industries of the United States. The title of the Tariff Act of 1922, of which § 315 is a part, is "An Act to provide revenue, to regulate commerce with foreign countries, to encourage the industries of the United States and for other purposes." Whatever we may think of the wisdom of a protection policy, we can not hold it unconstitutional.

So long as the motive of Congress and the effect of its legislative action are to secure revenue for the benefit of the general government, the existence of other motives in the selection of the subjects of taxes can not invalidate Congressional action. As we said in the Child Labor Tax Case, 259 U.S. 20, 38: "Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them, and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive." [413] And so here, the fact that Congress declares that one of its motives in fixing the rates of duty is so to fix them that they shall encourage the industries of this country in the competition with producers in other countries in the sale of goods in this country, can not invalidate a revenue act so framed. Section 315 and its provisions are within the power of Congress. The judgment of the Court of Customs Appeals is affirmed.

Affirmed.

          [Syllabus from pages 388-390 intentionally omitted]

Page 391

          Messrs. J. N. Saye, of Longview, Tex., and F. W. Fischer, of Tyler, Tex., for petitioners.

  [Argument of Counsel from pages 391-398 intentionally omitted]

Page 398

          Mr. Harold M. Stephens, Asst. Atty. Gen., for respondents.

  [Argument of Counsel from pages 398-405 intentionally omitted]

Page 405

           Mr. Chief Justice HUGHES delivered the opinion of the Court.

          On July 11, 1933, the President, by Executive Order No. 6199 (15 USCA § 709 note), prohibited 'the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly

Page 406

authorized agency of a State.'¹ This action was based on section 9(c) of title 1 of the National Industrial Recovery Act of June 16, 1933, 48 Stat. 195, 200, 15 U.S.C. tit. 1, § 709(c), 15 USCA § 709(c). That section provides:

          'Sec. 9. * * *

          '(c) The President is authorized to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State. Any violation of any order of the President issued under the provisions of this subsection shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both.'

          On July 14, 1933, the President, by Executive Order No. 6204 (15 USCA § 709 note), authorized the Secretary of the Interior to exercise all the powers vested in the President 'for the purpose of en-

Page 407

forcing Section 9(c) of said act and said order' of July 11, 1933, 'including full authority to designate and appoint such agents and to set up such boards and agencies as he may see fit, and to promulgate such rules and regulations as he may deem necessary.'² That order was made under section 10(a) of the National Industrial Recovery Act, 48 Stat. 200, 15 U.S.C. § 710(a), 15 USCA § 710(a), authorizing the President 'to prescribe such rules and regulations as may be necessary to carry out the purposes' of title 1 of the National Industrial Recovery Act and providing that 'any violation of any such rule or regulation shall be punishable by fine of not to exceed $500, or imprisonment for not to exceed six months, or both.'

          On July 15, 1933, the Secretary of the Interior issued regulations to carry out the President's orders of July 11 and 14, 1933. These regulations were amended by orders

Page 408

of July 25, 1933, and August 21, 1933, prior to the commencement of these suits. Regulation IV provided, in substance, that every producer of petroleum should file a monthly statement under oath, beginning August 15, 1933, with the Division of Investigations of the Department of the Interior giving information with respect to the residence and post office address of the producer, the location of his producing properties and wells, the allowable production as prescribed by state authority, the amount of daily production, all deliveries of petroleum, and declaring that no part of the petroleum or products produced and shipped had been produced or withdrawn from storage in excess of the amount permitted by state authority. Regulation V required every purchaser, shipper (other than a producer), and refiner of petroleum, including processors, similarly to file a monthly statement under oath, giving information as to residence and post office address, the place and date of receipt, the parties from whom and the amount of petroleum received and the amount held in storage, the disposition of the petroleum, particulars as to deliveries, and declaring, to the best of the affiant's information and belief, that none of the petroleum so handled had been produced or withdrawn from storage in excess of that allowed by state authority. Regulation VII provided that all persons embraced within the terms of section 9(c) of the act, 15 USCA § 709(a) and the executive orders and regulations issued thereunder, should keep 'available for inspection by the Division of Investigations of the Department of the Interior adequate books and records of all transactions involving the production and transportation of petroleum and the products thereof.'

          On August 19, 1933, the President, by Executive Order No. 6256, stating that his action was taken under title 1 of the National Industrial Recovery Act, approved a 'Code of

Page 409

Fair Competition for the Petroleum Industry.'³ By a further Executive Order of August 28, 1933, the President designated the Secretary of the Interior as Administrator, and the Department of the Interior as the federal agency, to exercise on behalf of the President all the powers vested in him under that act and code. Section 3(f) of title 1 of the National Industrial Recovery Act, 15 USCA § 703(f), provides that, when a code of fair competition has been approved or prescribed by the President under that title, 'any violation of any provision thereof in any transaction in or affecting interstate or foreign commerce shall

Page 410

be a misdemeanor and upon conviction thereof an offender shall be fined not more than $500 for each offense, and each day such violation continues shall be deemed a separate offense.'

          This 'Petroleum Code' (in its original form and as officially printed) provided in section 3 of article III relating to 'Production' for estimates of 'required production of crude oil to balance consumer demand for petroleum products' to be made at intervals by the federal agency. This 'required production' was to be 'equitably allocated' among the several states. These estimates and allocations, when approved by the President, were to be deemed to be 'the net reasonable market demand,' and the allocations were to be recommended 'as the operating schedules for the producing States and for the industry.' By section 4 of article III, the subdivision, with respect to producing properties, of the production allocated to each state, was to be made within the state. The second paragraph of that section further provided:

          'If any subdivision into quotas of production allocated to any State shall be made within a State any production by any person, as person is defined in Article I, Section 3 of this code in excess of any such quota assigned to him, shall be deemed an unfair trade practice and in violation of this code.'

          By an Executive Order of September 13, 1933, No. 6284-a, modifying certain provisions of the Petroleum Code, this second paragraph of section 4 of article III was eliminated. It was reinstated by Executive Order of September 25, 1934, No. 6855.

          These suits were brought in October, 1933.

          In No. 135, the Panama Refining Company, as owner of an oil refining plant in Texas, and its coplaintiff, a producer having oil and gas leases in Texas, sued to restrain the defendants, who were federal officials, from enforcing Regulations IV, V, and VII prescribed by the Secretary of the Interior under section 9(c) of the National Industrial

Page 411

Recovery Act. Plaintiffs attacked the validity of section 9(c) as an unconstitutional delegation to the President of legislative power and as transcending the authority of the Congress under the commerce clause. The regulations, and the attempts to enforce them by coming upon the properties of the plaintiffs, gauging their tanks, digging up pipe lines, and otherwise, were also assailed under the Fourth and Fifth Amendments of the Constitution.

          In No. 260, the Amazon Petroleum Corporation and its coplaintiffs, all being oil producers in Texas and owning separate properties, sued to enjoin the Railroad Commission of that state, its members and other state officers, and the other defendants who were federal officials, from enforcing the state and federal restrictions upon the production and disposition of oil. The bill alleged that the legislation of the state and the orders of its commission in curtailing production violated the Fourteenth Amendment of the Federal Constitution. As to the federal requirements, the bill not only attacked section 9(c) of the National Industrial Recovery Act, and the regulations of the Secretary of the Interior thereunder, upon substantially the same grounds as those set forth in the bill of the Panama Refining Company, but also challenged the validity of provisions of the Petroleum Code. While a number of these provisions were set out in the bill, the contest on the trial related to the limitation of production through the allocation of quotas pursuant to section 4 of article III of the code.

          As the case involved the constitutional validity of orders of the state commission and an interlocutory injunction was sought, a court of three judges was convened under section 266 of the Judicial Code (28 U.S.C. § 380 (28 USCA § 380)). That court decided that the cause of action against the federal officials was not one within section 266, but was for the consideration of the District Judge alone. The parties agreed that the causes of action should be severed and that each cause

Page 412

should be submitted to the tribunal having jurisdiction of it. Hearing was had both on the applications for interlocutory injunction and upon the merits. The court of three judges, sustaining the state orders, denied injunction, and dismissed the bill as against the state authorities. Amazon Petroleum Corp. v. Railroad Comm. (D.C.) 5 F.Supp. 633, 634, 639.

          In both cases against the federal officials, that of the Panama Refining Company and that of the Amazon Petroleum Corporation, heard by the District Judge, a permanent injunction was granted. 5 F.Supp. 639. In the case of the Amazon Petroleum Corporation, the court specifically enjoined the defendants from enforcing section 4 of article III of the Petroleum Code; both plaintiffs and defendants and the court being unaware of the amendment of September 13, 1933.

          The Circuit Court of Appeals reversed the decrees against the federal officials and directed that the bills be dismissed. Ryan v. Amazon Petroleum Corp., 71 F.(2d) 1; Ryan v. Panama Refining Co., 71 F.(2d) 8. The cases come here on writs of certiorari granted on October 8, 1934, 293 U.S. 539, 55 S.Ct. 102, 79 L.Ed. -; 293 U.S. 539, 55 S.Ct. 83, 79 L.Ed. —-.

          First. The controversy with respect to the provision of section 4 of article III of the Petroleum Code was initiated and proceeded in the courts below upon a false assumption. That assumption was that this section still contained the paragraph (eliminated by the Executive Order of September 13, 1933) by which production in excess of assigned quotas was made an unfair practice and a violation of the code. Whatever the cause of the failure to give appropriate public notice of the change in the section, with the result that the persons affected, the prosecuting authorities, and the courts, were alike ignorant of the alteration, the fact is that the attack in this respect was upon a provision which did not exist. The government's announcement that, by reason of the elimination of this paragraph, the government 'cannot, and therefore it does not intend to, prosecute petitioners or other producers of oil in Texas, criminally or otherwise,

Page 413

for exceeding, at any time prior to September 25, 1934, the quotas of production assigned to them under the laws of Texas,' but that, if 'petitioners, or other producers, produce in excess of such quotas after September 25, 1934, the government intends to prosecute them,' cannot avail to import into the present case the amended provision of that date.⁴ The case is not one where a subsequent law is applicable to a pending suit and controls its disposition.⁵ When this suit was brought and when it was heard, there was no cause of action for the injunction sought with respect to the provision of section 4 of article III of the code; as to that, there was no basis for real controversy. See California v. San Pablo & T.R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747; United States v. Alaska Steamship Co., 253 U.S. 113, 116, 40 S.Ct. 448, 64 L.Ed. 808; Barker Painting Co. v. Local No. 734, Brotherhood of Painters, etc., 281 U.S. 462, 50 S.Ct. 356, 74 L.Ed. 967. If the government undertakes to enforce the new provision, the petitioners, as well as others, will have an opportunity to present their grievance, which can then be considered, as it should be, in the light of the facts as they will then appear.

          For this reason, we pass to the other questions presented, and we express no opinion as to the interpretation or validity of the provisions of the Petroleum Code.

          Second. Regulations IV, V, and VII, issued by the Secretary of the Interior prior to these suits, have since been amended. But the amended regulations continue sub-

Page 414

stantially the earlier requirements and expand them. They present the same constitutional questions, and the cases as to these are not moot. Southern Pacific Company v. Interstate Commerce Commission, 219 U.S. 433, 452, 31 S.Ct. 288, 55 L.Ed. 283; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 514—516, 31 S.Ct. 279, 55 L.Ed. 310; McGrain v. Daugherty, 273 U.S. 135, 181, 182, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1.

          The original regulations of July 15, 1933, as amended July 25, 1933, and August 21, 1933, were issued to enforce the Executive Orders of July 11 and July 14, 1933. The Executive Order of July 11, 1933, was made under section 9(c) of the National Industrial Recovery Act, and the Executive Order of July 14, 1933, under section 10(a) of that act, authorizing the Secretary of the Interior to promulgate regulations, was for the purpose of enforcing section 9(c) and the Executive Order of July 11, 1933. The amended regulations have been issued for the same purpose. The fundamental question as to these regulations thus turns upon the validity of section 9(c) and the executive orders to carry it out.

          Third. The statute provides that any violation of any order of the President issued under section 9(c) shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both. We think that these penalties would attach to each violation, and in this view the plaintiffs were entitled to invoke the equitable jurisdiction to restrain enforcement, if the statute and the executive orders were found to be invalid. Philadelphia Company v. Stimson, 223 U.S. 605, 620, 621, 32 S.Ct. 340, 56 L.Ed. 570; Terrace v. Thompson, 263 U.S. 197, 214—216, 44 S.Ct. 15, 68 L.Ed. 255; Hygrade Provision Company v. Sherman, 266 U.S. 497, 499, 500, 45 S.Ct. 141, 69 L.Ed. 402.

          Fourth. Section 9[c] is assailed upon the ground that it is an unconstitutional delegation of legislative power. The section purports to authorize the President to pass a prohibitory law. The subject to which this authority relates is defined. It is the transportation in interstate and

Page 415

foreign commerce of petroleum and petroleum products which are produced or withdrawn from storage in excess of the amount permitted by state authority. Assuming for the present purpose, without deciding, that the Congress has power to interdict the transportation of that excess in interstate and foreign commerce, the question whether that transportation shall be prohibited by law is obviously one of legislative policy. Accordingly, we look to the statute to see whether the Congress has declared a policy with respect to that subject; whether the Congress has set up a standard for the President's action; whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition.

          Section 9(c) is brief and unambiguous. It does not attempt to control the production of petroleum and petroleum products within a state. It does not seek to lay down rules for the guidance of state Legislatures or state officers. It leaves to the states and to their constituted authorities the determination of what production shall be permitted. It does not qualify the President's authority by reference to the basis or extent of the state's limitation of production. Section 9(c) does not state whether or in what circumstances or under what conditions the President is to prohibit the transportation of the amount of petroleum or petroleum products produced in excess of the state's permission. It establishes no creterion to govern the President's course. It does not require any finding by the President as a condition of his action. The Congress in section 9(c) thus declares no policy as to the transportation of the excess production. So far as this section is concerned, it gives to the President an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit. And disobedience to his order is made a crime punishable by fine and imprisonment.

Page 416

          We examine the context to ascertain if it furnishes a declaration of policy or a standard of action, which can be deemed to relate to the subject of section 9(c) and thus to imply what is not there expressed. It is important to note that section 9 (15 USCA § 709) is headed 'Oil Regulation'—that is, section 9 is the part of the National Industrial Recovery Act which particularly deals with that subject-matter. But the other provisions of section 9 afford no ground for implying a limitation of the broad grant of authority in section 9(c). Thus section 9(a) authorizes the President to initiate before the Interstate Commerce Commission 'proceedings necessary to prescribe regulations to control the operations of oil pipe lines and to fix reasonable, compensatory rates for the transportation of petroleum and its products by pipe lines,' and the Interstate Commerce Commission is to grant preference 'to the hearings and determination of such cases.' Section 9(b) authorizes the President to institute proceedings 'to divorce from any holding company any pipe-line company controlled by such holding company which pipeline company by unfair practices or by exorbitant rates in the transportation of petroleum or its products tends to create a monopoly.' It will be observed that each of these provisions contains restrictive clauses as to their respective subjects. Neither relates to the subject of section 9(c).

          We turn to the other provisions of title 1 of the act. The first section (15 USCA § 701) is a 'declaration of policy.'⁶ It declares that a national emergency exists which is 'pro-

Page 417

ductive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people.' It is declared to be the policy of Congress 'to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof;' 'to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups;' 'to induce and maintain united action of labor and management under adequate governmental sanctions and supervision;' 'to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.'

          This general outline of policy contains nothing as to the circumstances or conditions in which transportation of petroleum or petroleum products should be prohibited—nothing as to the policy of prohibiting or not prohibiting the transportation of production exceeding what the

Page 418

states allow. The general policy declared is 'to remove obstructions to the free flow of interstate and foreign commerce.' As to production, the section lays down no policy of limitation. It favors the fullest possible utilization of the present productive capacity of industries. It speaks, parenthetically, of a possible temporary restriction of production, but of what, or in what circumstances, it gives no suggestion. The section also speaks in general terms of the conservation of natural resources, but it prescribes no policy for the achievement of that end. It is manifest that this broad outline is simply an introduction of the act, leaving the legislative policy as to particular subjects to be declared and defined, if at all, by the subsequent sections.

          It is no answer to insist that deleterious consequences follow the transportation of 'hot oil'—oil exceeding state allowances. The Congress did not prohibit that transportation. The Congress did not undertake to say that the transportation of 'hot oil' was injurious. The Congress did not say that transportation of that oil was 'unfair competition.' The Congress did not declare in what circumstances that transportation should be forbidden, or require the President to make any determination as to any facts or circumstances. Among the numerous and diverse objectives broadly stated, the President was not required to choose. The President was not required to ascertain and proclaim the conditions prevailing in the industry which made the prohibition necessary. The Congress left the matter to the President without standard or rule, to be dealt with as he pleased. The effort by ingenious and diligent construction to supply a criterion still permits such a breadth of authorized action as essentially to commit to the President the functions of a Legislature rather than those of an executive or administrative

Page 419

officer executing a declared legislative policy. We find nothing in section 1 which limits or controls the authority conferred by section 9(c).

          We pass to the other sections of the act. Section 2 (15 USCA § 702) relates to administrative agencies which may be constituted. Section 3 (15 USCA § 703) provides for the approval by the President of 'codes' for trades or industries. These are to be codes of 'fair competition' and the authority is based upon certain express conditions which require findings by the President. Action under section 9(c) is not made to depend on the formulation of a code under section 3. In fact, the President's action under section 9(c) was taken more than a month before a Petroleum Code was approved. Subdivision (e) of section 3 (15 USCA § 703(e) authorizes the President, on his own motion or upon complaint, as stated, in case any article is being imported into the United States 'in substantial quantities or increasing ratio to domestic production of any competitive article,' under such conditions as to endanger the maintenance of a code or agreement under title 1, to cause an immediate investigation by the Tariff Commission. The authority of the President to act, after such investigation, is conditioned upon a finding by him of the existence of the underlying facts, and he may permit entry of the articles concerned upon such conditions and with such limitations as he shall find it necessary to prescribe in order that the entry shall not tend to render the code or agreement ineffective. Section 4 (15 USCA § 704) relates to agreements and licenses for the purposes stated. Section 5 (15 USCA § 705) refers to the application of the anti-trust laws. Sections 6 and 7 (15 USCA §§ 706, 707) impose limitations upon the application of title 1, bearing upon trade associations and other organizations and upon the relations between employers and employees. Section 8 (15 USCA § 708), contains provisions with respect to the application of the Agricultural Adjustment Act of May 12, 1933 (7 USCA § 601 et seq.).

Page 420

          None of these provisions can be deemed to prescribe any limitation of the grant of authority in section 9(c).

          Fifth. The question whether such a delegation of legislative power is permitted by the Constitution is not answered by the argument that it should be assumed that the President has acted, and will act, for what he believes to be the public good. The point is not one of motives, but of constitutional authority, for which the best of motives is not a substitute. While the present controversy relates to a delegation to the President, the basic question has a much wider application. If the Congress can make a grant of legislative authority of the sort attempted by section 9(c), we find nothing in the Constitution which restricts the Congress to the selection of the President as grantee. The Congress may vest the power in the officer of its choice or in a board or commission such as it may select or create for the purpose. Nor, with respect to such a delegation, is the question concerned merely with the transportation of oil, or of oil produced in excess of what the state may allow. If legislative power may thus be vested in the President or other grantee as to that excess of production, we see no reason to doubt that it may similarly be vested with respect to the transportation of oil without reference to the state's requirements. That reference simply defines the subject of the prohibition which the President is authorized to enact or not to enact as he pleases. And, if that legislative power may be given to the President or other grantee, it would seem to follow that such power may similarly be conferred with respect to the transportation of other commodities in interstate commerce with or without reference to state action, thus giving to the grantee of the power the determination of what is a wise policy as to that transportation, and authority to permit or prohibit it, as the person or board or commission so chosen may

Page 421

think desirable. In that view, there would appear to be no ground for denying a similar prerogative of delegation with respect to other subjects of legislation.

          The Constitution provides that 'All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Article 1, § 1. And the Congress is empowered 'To make all Laws which shall be necessary and proper for carrying into Execution' its general powers. Article 1, § 8, par. 18. The Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national Legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility. But the constant recognition of the necessity and validity of such provisions and the wide range of administrative authority which has been developed by means of them cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained.

          The Court has had frequent occasion to refer to these limitations and to review the course of congressional action. At the very outset, amid the disturbances due to war in Europe, when the national safety was imperiled

Page 422

and our neutrality was disregarded, the Congress passed a series of acts, as a part of which the President was authorized, in stated circumstances, to lay and revoke embargoes, to give permits for the exportation of arms and military stores, to remit and discontinue the restraints and prohibitions imposed by acts suspending commercial intercourse with certain countries, and to permit or interdict the entrance into waters of the United States of armed vessels belonging to foreign nations.⁷ These early acts were not the subject of judicial decision, and, apart from that, they afford no adequate basis for a conclusion that the Congress assumed that it possessed an unqualified power of delegation. They were inspired by the vexations of American commerce through the hostile enterprises of the belligerent powers,⁸ they were directed to the effective execution of policies repeatedly declared by the Congress, and they confided to the President, for the purposes and under the conditions stated, an authority which was cognate to the conduct by him of the foreign relations of the government.⁹

Page 423

          The first case relating to an authorization of this description was that of The Aurora v. United States, 7 Cranch, 382, 388, 3 L.Ed. 378. The cargo of that vessel had been condemned as having been imported from Great Britain in violation of the Nonintercourse Act of March 1, 1809 (2 Stat. 528). That act expired on May 1, 1810,¹⁰ when Congress passed another

Page 424

act (2 Stat. 605, 606) providing that, in case either Great Britain or France before March 3, 1811, 'shall * * * so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation, and if the other nation shall not within three months thereafter so revoke or modify her edicts in like manner' (section 4), then, with respect to that nation, as stated, the provisions of the act of 1809, after three months from that proclamation, 'shall * * * be revived and have full force and effect.' On November 2, 1810, the President issued his proclamation declaring that France had so revoked or modified her edicts, and it was contended that the provisions of the act of 1809, as to the cargo in question, had thus been revived. The Court said that it could see no sufficient reason why the Legislature should not exercise its discretion in reviving the act of 1809, 'either expressly or conditionally, as their judgment should direct.' The provision of that act declaring 'that it should continue in force to a certain time, and no longer,' could not restrict the power of the Legislature to extend its operation 'without limitation upon the occurrence of any subsequent combination of events.' This was a decision, said the Court in Field v. Clark, 143 U.S. 649, 683, 12 S.Ct. 495, 501, 36 L.Ed. 294, 'that it was competent for congress to make the revival of an act depend upon the proclamation of the president, showing the ascertainment by him of the fact that the edicts of certain nations had been so revoked or modified that they did not violate the neutral commerce of the United States.'

          In Field v. Clark, supra, the Court applied that ruling to the case of 'the suspension of an act upon a contingency to be ascertained by the president, and made known by his proclamation.' The Court was dealing with section 3 of the Act of October 1, 1890, 26 Stat. 567, 612.

Page 425

That section provided that, 'with a view to secure reciprocal trade' with countries producing certain articles, 'whenever, and so often as the President shall be satisfied' that the government of any country producing them imposed 'duties or other exactions upon the agricultural or other products of the United States' which, in view of the free list established by the act, the President 'may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty,' to suspend the free introduction of those articles by proclamation to that effect, and that during that suspension the duties specified by the section should be levied. The validity of the provision was challenged as a delegation to the President of legislative power. The Court reviewed the early acts to which we have referred, as well as later statutes considered to be analogous.¹¹ While sustaining the provision, the Court emphatically declared that the principle that 'congress cannot delegate legislative power to the president' is 'universally

Page 426

recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.' The Court found that the act before it was not inconsistent with that principle; that it did not 'in any real sense, invest the president with the power of legislation.' As 'the suspension was absolutely required when the president ascertained the existence of a particular fact,' it could not be said 'that in ascertaining that fact, and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws.' 'He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.' Id., pages 692, 693 of 143 U.S., 12 S.Ct. 495, 504, 505. The Court referred with approval to the distinction pointed out by the Supreme Court of Ohio in Cincinnati, Wilmington, etc., Railroad v. Clinton County Commissioners, 1 Ohio St. 88, between 'the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.'

          Applying that principle, authorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed have constantly been sustained. Moreover the Congress may not only give such authorizations to determine specific facts, but may establish primary standards, devolving upon others the duty to carry out the declared legislative policy; that is, as Chief Justice Marshall expressed it, 'to fill up the details' under the general provisions made by the Legislature. Wayman v. Southard, 10 Wheat. 1, 43, 6 L.Ed. 253. In Buttfield v. Stranahan, 192 U.S. 470, 496, 24 S.Ct. 349, 352, 48 L.Ed. 525, the Act of March 2, 1897 (29 Stat. 604, 605, § 3 (see 21 USCA § 43)), was upheld, which authorized the Secretary of the Treasury, upon the recommendation of a board of experts, to 'establish uniform standards of purity, quality, and fitness

Page 427

for consumption of all kinds of teas imported into the United States.' The Court construed the statute as expressing 'the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality.' The Congress, the Court said, thus fixed 'a primary standard' and committed to the Secretary of the Treasury 'the mere executive duty to effectuate the legislative policy declared in the statute.' 'Congress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute.' See Red 'C' Oil Co. v. Board of Agriculture of North Carolina, 222 U.S. 380, 394, 32 S.Ct. 152, 56 L.Ed. 240.

          Another notable illustration is that of the authority given to the Secretary of War to determine whether bridges and other structures constitute unreasonable obstructions to navigation and to remove such obstructions. Act of March 3, 1899, § 18, 30 Stat. 1153, 1154 (33 USCA § 502). By that statute the Congress declared 'a general rule and imposed upon the Secretary of War the duty of ascertaining what particular cases came within the rule' as thus laid down. Union Bridge Co. v. United States, 204 U.S. 364, 386, 27 S.Ct. 367, 51 L.Ed. 523; Monongahela Bridge Co. v. United States, 216 U.S. 177, 193, 30 S.Ct. 356, 54 L.Ed. 435; Philadelphia Co. v. Stimson, 223 U.S. 605, 638, 32 S.Ct. 340, 56 L.Ed. 570. Upon this principle rests the authority of the Interstate Commerce Commission, in the execution of the declared policy of the Congress in enforcing reasonable rates, in preventing undue preferences and unjust discriminations, in requiring suitable facilities for transportation in interstate commerce, and in exercising other powers held to have been validly conferred. St. Louis, I.M. & S. Ry. Co. v. Taylor, 210 U.S. 281, 287, 28 S.Ct. 616, 52 L.Ed. 1061; Inter-Mountain Rate Cases, 234 U.S. 476, 486, 34 S.Ct. 986, 58 L.Ed. 1408; Avent v. United States, 266 U.S. 127, 130, 45 S.Ct. 34, 69 L.Ed. 202; New York Central Securities Corporation

Page 428

v. United States, 287 U.S. 12, 24, 25, 53 S.Ct. 45, 77 L.Ed. 138. Upon a similar ground the authority given to the President, in appropriate relation to his functions as Commander-in-Chief, by the Trading with the Enemy Act, as amended by the Act of March 28, 1918 (40 Stat. 460, § 12 (50 USCA Appendix § 12)), with respect to the disposition of enemy property, was sustained. 'The determination,' said the Court, 'of the terms of sales of enemy properties in the light of facts and conditions from time to time arising in the progress of war was not the making of a law; it was the application of the general rule laid down by the act.' United States v. Chemical Foundation, 272 U.S. 1, 12, 47 S.Ct. 1, 5, 71 L.Ed. 131.¹²

          The provisions of the Radio Act of 1927 (44 Stat. 1162, 1163), providing for assignments of frequencies or wave lengths to various stations, afford another instance. In granting licenses, the Radio Commission is required to act 'as public convenience, interest, or necessity requires.' Section 4. In construing this provision, the Court found that the statute itself declared the policy as to 'equality of radio broadcasting service, both of transmission and of reception,' and that it conferred authority to make allocations and assignments in order to secure, according to stated criteria, an equitable adjustment in the distribution of facilities.¹³ The standard set up was not so indefinite 'as to confer an unlimited power.' Federal Radio Commission v. Nelson Brothers Co., 289 U.S. 266, 279, 285, 53 S.Ct. 627, 634, 77 L.Ed. 1166.

          So also, from the beginning of the government, the Congress has conferred upon executive officers the power to make regulations—'not for the government of their departments, but for administering the laws which did govern.' United States v. Grimaud, 220 U.S. 506, 517, 31 S.Ct. 480, 483, 55 L.Ed. 563. Such regulations become, indeed, binding rules of con-

Page 429

duct, but they are valid only as subordinate rules and when found to be within the framework of the policy which the Legislature has sufficiently defined. In the case of Grimaud, supra, a regulation made by the Secretary of Agriculture requiring permits for grazing sheep on a forest reserve of lands belonging to the United States was involved. The Court referred to the various acts for the establishment and management of forest reservations and the authorization of rules which would 'insure the objects of such reservations,' that is, 'to regulate their occupancy and use, and to preserve the forests thereon from destruction.' The Court observed that 'it was impracticable for Congress to provide general regulations for these various and varying details of management,' and that, in authorizing the Secretary of Agriculture to meet local conditions, Congress 'was merely conferring administrative functions upon an agent, and not delegating to him legislative power.' Id., pages 515, 516 of 220 U.S., 31 S.Ct. 480, 482. The Court quoted with approval the statement of the principle in Field v. Clark, supra, that the Congress cannot delegate legislative power, and upheld the regulation in question as an administrative rule for the appropriate execution of the policy laid down in the statute. See Wayman v. Southard, supra; Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194, 214, 215, 32 S.Ct. 436, 56 L.Ed. 729; Selective Draft Law Cases, 245 U.S. 366, 389, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A. 1918C, 361, Ann.Cas. 1918B, 856; McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668.

          The applicable considerations were reviewed in Hampton, Jr., & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 352, 72 L.Ed. 624, where the Court dealt with the so-called 'flexible tariff provision' of the Act of September 21, 1922 (42 Stat. 858, 941, 942, § 315 (19 USCA §§ 154—159)), and with the authority which it conferred upon the President. The Court applied the same principle that permitted the Congress to exercise its ratemaking power in interstate commerce, and found that a similar provision was justified for the fixing of customs duties; that is, as the Court said: 'If Congress shall lay down by

Page 430

legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under congressional authority.' The Court sustained the provision upon the authority of Field v. Clark, supra, repeating with approval what was there said, that 'What the President was required to do was merely in execution of the act of Congress.' Id., pages 409 411 of 276 U.S., 48 S.Ct. 348, 352.

          Thus, in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. We think that section 9(c) goes beyond those limits. As to the transportation of oil production in excess of state permission, the Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited.

          If section 9(c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its lawmaking function. The reasoning of the many decisions we have reviewed would be made vacuous and their distinctions nugatory. Instead of performing its lawmaking function, the Congress could at will and as to such subjects as it chooses transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government.

Page 431

          Sixth. There is another objection to the validity of the prohibition laid down by the executive order under section 9(c). The executive order contains no finding, no statement of the grounds of the President's action in enacting the prohibition. Both section 9(c) and the executive order are in notable contrast with historic practice (as shown by many statutes and proclamations we have cited in the margin¹⁴) by which declarations of policy are made by the Congress and delegations are within the framework of that policy and have relation to facts and conditions to be found and stated by the President in the appropriate exercise of the delegated authority. If it could be said that from the four corners of the statute any possible inference could be drawn of particular circumstances or conditions which were to govern the exercise of the authority conferred, the President could not act validly without having regard to those circumstances and conditions. And findings by him as to the existence of the required basis of his action would be necessary to sustain that action, for otherwise the case would still be one of an unfettered discretion as the qualification of authority would be ineffectual. The point is pertinent in relation to the first section of the National Industrial Recovery Act. We have said that the first section is but a general introduction, that it declares no policy and defines no standard with respect to the transportation which is the subject of section 9(c). But if from the extremely broad description contained in that section and the widely different matters to which the section refers, it were possible to derive a statement of prerequisites to the President's action under section 9(c), it would still be necessary for the President to comply with those conditions and to show that compliance as the ground of his prohibition. To hold

Page 432

that he is free to select as he chooses from the many and various objects generally described in the first section, and then to act without making any finding with respect to any object that he does select, and the circumstances properly related to that object, would be in effect to make the conditions inoperative and to invest him with an uncontrolled legislative power.

          We are not dealing with action which, appropriately belonging to the executive province, is not the subject of judicial review or with the presumptions attaching to executive action.¹⁵ To repeat, we are concerned with the question of the delegation of legislative power. If the citizen is to be punished for the crime of violating a legislative order of an executive officer, or of a board or commission, due process of law requires that it shall appear that the order is within the authority of the officer, board, or commission, and, if that authority depends on determinations of fact, those determinations must be shown. As the Court said in Wichita Railroad & Light Co. v. Public Utilities Commission, 260 U.S. 48, 59, 43 S.Ct. 51, 55, 67 L.Ed. 124: 'In creating such an administrative agency, the Legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined, and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective.

Page 433

It is pressed on us that the lack of an express finding may be supplied by implication and by reference to the averments of the petition invoking the action of the Commission. We cannot agree to this.' Referring to the ruling in the Wichita Case, the Court said in Mahler v. Eby, 264 U.S. 32, 44, 44 S.Ct. 283, 288, 68 L.Ed. 549: 'We held that the order in that case, made after a hearing and ordering a reduction, was void for lack of the express finding in the order. We put this conclusion, not only on the language of the statute, but also on general principles of constitutional government.' We cannot regard the President as immune from the application of these constitutional principles. When the President is invested with legislative authority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation.

          We see no escape from the conclusion that the Executive Orders of July 11, 1933, and July 14, 1933, Nos. 6199, 6204 (15 USCA § 709 note), and the regulations issued by the Secretary of the Interior thereunder, are without constitutional authority.

          The decrees of the Circuit Court of Appeals are reversed, and the causes are remanded to the District Court, with direction to modify its decrees in conformity with this opinion so as to grant permanent injunctions, restraining the defendants from enforcing those orders and regulations.

          It is so ordered.

           Mr. Justice CARDOZO (dissenting).

          With all that is said in the opinion of the court as to the Code of Fair Competition adopted by the President August 16, 1933, for the Governance of the Petroleum Industry, I am fully in accord. No question is before us at this time as to the power of Congress to regulate production. No question is here as to its competence to clothe the President with a delegated power whereby a code of fair competition may become invested with the force of

Page 434

law. The petitioners were never in jeopardy by force of such a code or of regulations made thereunder. They were not in jeopardy because there was neither statute nor regulation subjecting them to pains or penalties if they set the code at naught. One must deplore the administrative methods that brought about uncertainty for a time as to the terms of executive orders intended to be law. Even so, the petitioners do not stand in need of an injunction to restrain the enforcement of a non-existent mandate.

          I am unable to assent to the conclusion that section 9(c) of the National Recovery Act, 15 USCA § 709(c), a section delegating to the President a very different power from any that is involved in the regulation of production or in the promulgation of a code, is to be nullified upon the ground that his discretion is too broad or for any other reason. My point of difference with the majority of the court is narrow. I concede that to uphold the delegation there is need to discover in the terms of the act a standard reasonably clear whereby discretion must be governed. I deny that such a standard is lacking in respect of the prohibitions permitted by this section when the act with all its reasonable implications is considered as a whole. What the standard is becomes the pivotal inquiry.

          As to the nature of the act which the President is authorized to perform there is no need for implication. That at least is definite beyond the possibility of challenge. He may prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted by any state law or valid regulation or order prescribed thereunder. He is not left to roam at will among all the possible subjects of interstate transportation, picking and choosing as he pleases. I am far from asserting now that delegation would be

Page 435

valid if accompanied by all that latitude of choice. In the laying of his interdict he is to confine himself to a particular commodity, and to that commodity when produced or withdrawn from storage in contravention of the policy and statutes of the states. He has choice, though within limits, as to the occasion, but none whatever as to the means. The means have been prescribed by Congress. There has been no grant to the Executive of any roving commission to inquire into evils and then, upon discovering them, do anything he pleases. His act being thus defined, what else must he ascertain in order to regulate his discretion and bring the power into play? The answer is not given if we look to section 9(c) only, but it comes to us by implication from a view of other sections where the standards are defined. The prevailing opinion concedes that a standard will be as effective if imported into section 9(c) by reasonable implication as if put there in so many words. If we look to the whole structure of the statute, the test is plainly this, that the President is to forbid the transportation of the oil when he believes, in the light of the conditions of the industry as disclosed from time to time, that the prohibition will tend to effectuate the declared policies of the act—not merely his own conception of its policies, undirected by any extrinsic guide, but the policies announced by section 1 (15 USCA § 701) in the forefront of the statute as an index to the meaning of everything that follows.¹

Page 436

          Oil produced or transported in excess of a statutory quota is known in the industry as 'hot oil,' and the record is replete with evidence as to the effect of such production and transportation upon the economic situation and upon national recovery. A declared policy of Congress in the adoption of the act is 'to eliminate unfair competitive practices.' Beyond question an unfair competitive practice exists when 'hot oil' is transported in interstate commerce with the result that lawabiding dealers must compete with lawbreakers. Here is one of the standards set up in the act to guide the President's discretion. Another declared policy of Congress is 'to conserve natural resources.' Beyond question the disregard of statutory quotas is wasting the oil fields in Texas and other states and putting in jeopardy of exhaustion one of the treasures of the nation. All this is developed in the record and in the arguments of counsel for the government with a wealth of illustration. Here is a second standard. Another declared policy of Congress is to 'promote the fullest possible utilization of the present productive capacity of industries,' and 'except as may be temporarily required' to 'avoid undue restriction of production.' Beyond question prevailing conditions in the oil industry have brought about the need for temporary restriction in order to promote in the long run the fullest productive capacity of business in all its many

Page 437

branches, for the effect of present practices is to diminish that capacity by demoralizing prices and thus increasing unemployment. The ascertainment of these facts at any time or place was a task too intricate and special to be performed by Congress itself through a general enactment in advance of the event. All that Congress could safely do was to declare the act to be done and the policies to be promoted, leaving to the delegate of its power the ascertainment of the shifting facts that would determine the relation between the doing of the act and the attainment of the stated ends. That is what it did. It said to the President, in substance: You are to consider whether the transportation of oil in excess of the statutory quotas is offensive to one or more of the policies enumerated in section 1, whether the effect of such conduct is to promote unfair competition or to waste the natural resources or to demoralize prices or to increase unemployment or to reduce the purchasing power of the workers of the nation. If these standards or some of them have been flouted with the result of a substantial obstruction to industrial recovery, you may then by a prohibitory order eradicate the mischief.

          I am not unmindful of the argument that the President has the privilege of choice between one standard and another, acting or failing to act according to an estimate of values that is individual and personal. To describe his conduct thus is to ignore the essence of his function. What he does is to inquire into the industrial facts as they exist from time to time. Cf. Hampton, Jr., & Co. v. United States, 276 U.S. 394, at page 409, 48 S.Ct. 348, 72 L.Ed. 624; Locke's Appeal, 72 Pa. 491, 498, 13 Am.Rep. 716, quoted with approval in Field v. Clark, 143 U.S. 649, at page 694, 12 S.Ct. 495, 36 L.Ed. 294. These being ascertained, he is not to prefer one standard to another in any subjective attitude of mind, in any personal or willful way. He is to study the facts objectively, the violation of a standard

Page 438

impelling him to action or inaction according to its observed effect upon industrial recovery—the ultimate end, as appears by the very heading of the title, to which all the other ends are tributary and mediate. Nor is there any essential conflict among the standards inter se, at all events when they are viewed in relation to section 9 (c) and the power there conferred. In its immediacy, the exclusion of oil from the channels of transportation is a restriction of interstate commerce, not a removal of obstructions. This is self-evident, and, of course, was understood by Congress when the discretionary power of exclusion was given to its delegate. But what is restriction in its immediacy may in its ultimate and larger consequences be expansion and development. Congress was aware that for the recovery of national well-being there might be need of temporary restriction upon production in one industry or another. It said so in section 1. When it clothed the President with power to impose such a restriction—to prohibit the flow of oil illegally produced—it laid upon him a mandate to inquire and determine whether the conditions in that particular industry were such at any given time as to make restriction helpful to the declared objectives of the act and to the ultimate attainment of industrial recovery. If such a situation does not present an instance of lawful delegation in a typical and classic form (Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; Hampton, Jr., & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624), categories long established will have to be formulated anew.

          In what has been written, I have stated, but without developing the argument, that by reasonable implication the power conferred upon the President by section 9(c) is to be read as if coupled with the words that he shall exercise the power whenever satisfied that by doing so he will effectuate the policy of the statute as theretofore declared. Two canons of interpretation, each familiar to our law,

Page 439

leave no escape from that conclusion. One is that the meaning of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in view. Cherokee Intermarriage Cases (Red Bird v. U.S.), 203 U.S. 76, 89, 27 S.Ct. 29, 51 L.Ed. 96; McKee v. United States, 164 U.S. 287, 17 S.Ct. 92, 41 L.Ed. 437; Talbott v. Board of Com'rs of Silver Bow County, 139 U.S. 438, 443, 444, 11 S.Ct. 594, 35 L.Ed. 210. The other is that, when a statute is reasonably susceptible of two interpretations, by one of which it is unconstitutional and by the other valid, the court prefers the meaning that preserves to the meaning that destroys. United States v. Delaware & Hudson Co., 213 U.S. 366, 407, 29 S.Ct. 527, 53 L.Ed. 836; Knights Templars' & Masons' Life Indemnity Co. v. Jarman, 187 U.S. 197, 205, 23 S.Ct. 108, 47 L.Ed. 139. Plainly, section 1, with its declaration of the will of Congress, is the chart that has been furnished to the President to enable him to shape his course among the reefs and shallows of this act. If there could be doubt as to this when section 1 (15 USCA § 701) is viewed alone, the doubt would be dispelled by the reiteration of the policy in the sections that come later. In section 2 (15 USCA § 702). which relates to administrative agencies, in section 3 (15 USCA § 703), which relates to codes of fair competition, in section 4 (15 USCA § 704), which relates to agreements and licenses, in section 6 (15 USCA § 706), which prescribes limitations upon the application of the statute, and in section 10 (15 USCA § 710), which permits the adoption of rules and regulations, authority is conferred upon the President to do one or more acts as the delegate of Congress when he is satisfied that thereby he will aid 'in effectuating the policy of this title' or in carrying out its provisions. True section 9 (15 USCA § 709), the one relating to petroleum, does not by express words of reference embody the same standard, yet nothing different can have been meant. What, indeed, is the alternative? Either the statute means that the President is to adhere to the declared policy of Congress, or it means that he is to exercise a merely arbitrary will. The one construction invigorates the act; the other saps its life. A choice between them is not hard.

Page 440

          I am persuaded that a reference, express or implied, to the policy of Congress as declared in section 1, is a sufficient definition of a standard to make the statute valid. Discretion is not unconfined and vagrant. It is canalized within banks that keep it from overflowing. Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294, United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563, and Hampton, Jr., & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624, state the applicable principle. Under these decisions the separation of powers between the Executive and Congress is not a doctrinaire concept to be made use of with pedantic rigor. There must be sensible approximation, there must be elasticity of adjustment, in response to the practical necessities of government, which cannot foresee to-day the developments of tomorrow in their nearly infinite variety. The Interstate Commerce Commission, probing the economic situation of the railroads of the country, consolidating them into systems, shaping in numberless ways their capacities and duties, and even making or unmaking the prosperity of great communities (Texas & Pacific R. Co. v. United States, 289 U.S. 627, 53 S.Ct. 768, 77 L.Ed. 1410), is a conspicuous illustration. See, e.g., 41 Stat. 479—482, c. 91, §§ 405, 406, 407, 408, 42 Stat. 27, c. 20, 49 U.S.C. §§ 3, 4, 5 (49 USCA §§ 3—5). Cf. Inter-Mountain Rate Case (U.S. v. Atchison, T. & S.F.R. Co.), 234 U.S. 476, 34 S.Ct. 986, 58 L.Ed. 1408; N.Y. Central Securities Co. v. United States, 287 U.S. 12, 24, 25, 53 S.Ct. 45, 77 L.Ed. 138; Sharfman, The Interstate Commerce Commission, vol. 2, pp. 357, 365. There could surely be no question as to the validity of an act whereby carriers would be prohibited from transporting oil produced in contravention of a statute if in the judgment of the Commission the practice was demoralizing the market and bringing disorder and insecurity into the national economy. What may be delegated to a commission may be delegated to the President. 'Congress may feel itself unable conveniently to determine exactly when its exercise of the legislative power should become effective, because dependent on future conditions, and it may leave

Page 441

the determination of such time to the decision of an executive.' Hampton, Jr., & Co. v. United States, supra, at page 407 of 276 U.S., 48 S.Ct. 348, 351. Only recently (1932) the whole subject was discussed with much enlightenment in the Report by the Committee on Ministers' Powers to the Lord Chancellor of Great Britain. See, especially, pages 23, 51. In the complex life of to-day, the business of government could not go on without the delegation, in greater or less degree, of the power to adapt the rule to the swiftly moving facts.

          A striking illustration of this need is found in the very industry affected by this section, the production of petroleum and its transportation between the states. At the passage of the National Recovery Act (48 Stat. 195) no one could be certain how many of the states would adopt valid quota laws, or how generally the laws would be observed when adopted, or to what extent illegal practices would affect honest competitors or the stability of prices or the conservation of natural resources or the return of industrial prosperity. Much would depend upon conditions as they shaped themselves thereafter. Violations of the state laws might turn out to be so infrequent that the honest competitor would suffer little, if any, damage. The demand for oil might be so reduced that there would be no serious risk of waste, depleting or imperiling the resources of the nation. Apart from these possibilities, the business might become stabilized through voluntary co-operation or the adoption of a code or otherwise. Congress not unnaturally was unwilling to attach to the state laws a sanction so extreme as the cutting off of the privilege of interstate commerce unless the need for such action had unmistakably developed. What was left to the President was to ascertain the conditions prevailing in the industry, and prohibit or fail to prohibit according to the effect of those conditions upon the phases of the national policy relevant thereto.

Page 442

          From a host of precedents available, both legislative and judicial, I cite a few as illustrations. By an act approved June 4, 1794, during the administration of Washington (1 Stat. 372; Field v. Clark, 143 U.S. 649, 683, 12 S.Ct. 495, 36 L.Ed. 294) Congress authorized the President, when Congress was not in session, and for a prescribed period 'whenever, in his opinion, the public safety shall so require, to lay an embargo on all ships and vessels in the ports or the United States, or upon the ships and vessels of the United States, or the ships and vessels of any foreign nation, under such regulations as the circumstances of the case may require, and to continue or revoke the same, whenever he shall think proper.' By an act of 1799, February 9 (1 Stat. 613, 615, § 4), suspending commercial intercourse with France and its dependencies, 'it shall be lawful for the President of the United States, if he shall deem it expedient and consistent with the interest of the United States, by his order, to remit, and discontinue, for the time being, the restraints and prohibitions aforesaid; * * * and also to revoke such order (i.e., ree stablish the restraints), whenever, in his opinion, the interest of the United States shall require.' By an act of October 1, 1890 (26 Stat. 567, 612), sustained in Field v. Clark, supra, the President was authorized to suspend by proclamation the free introduction into this country of enumerated articles when satisfied that a country producing them imposes duties or other exactions upon the agricultural or other products of the United States which he may deem to be reciprocally unequal or unreasonable. By an act of September 21, 1922 (42 Stat. 858, 941, 945 (19 USCA §§ 154—159, 182 et seq.)), sustained in Hampton, Jr., & Co. v. United States, supra, the President was empowered to increase or decrease tariff duties so as to equalize the differences between the costs of production at home and abroad, and empowered, by the same means, to give redress for other acts of discrimination or unfairness 'when he finds that the public interest will be

Page 443

served thereby.' 19 USCA § 182. Delegation was not confined to an inquiry into the necessity or occasion for the change. It included the magnitude of the change, the delegate thus defining the act to be performed. By an act of June 4, 1897 (30 Stat. 11, 35), amended in 1905 (33 Stat. 628), regulating the forest reservations of the nation, the purpose of the reservations was declared to be 'to improve and protect the forest within the reservation,' and to secure 'favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.' Without further guide or standard, the Secretary of Agriculture was empowered to 'make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction.' The validity of these provisions was upheld in United States v. Grimaud, supra, as against the claim by one who violated the rules that there had been an unlawful delegation. Many other precedents are cited in the margin.² They teach one lesson and a clear one.

          There is no fear that the nation will drift from its ancient moorings as the result of the narrow delegation of power permitted by this section. What can be done under cover of that permission is closely and clearly circumscribed both as to subject-matter and occasion. The statute was framed in the shadow of a national disaster. A host of unforeseen contingencies would have to be faced from day to day, and faced with a fullness of under

Page 444

standing unattainable by any one except the man upon the scene. The President was chosen to meet the instant need.

          A subsidiary question remains as to the form of the executive order, which is copied in the margin.³ The question is a subsidiary one, for, unless the statute is invalid, another order with fuller findings or recitals may correct the informalities of this one, if informalities there are. But the order to my thinking is valid as it stands. The President was not required either by the Constitution or by any statute to state the reasons that had induced him to exercise the granted power. It is enough that the grant of power had been made and that pursuant to that grant he had signified the will to act. The will to act being declared, the law presumes that the declaration was preceded by due inquiry and that it was rooted in sufficient grounds. Such, for a hundred years and more, has been the doctrine of this court. The act of February 28, 1795 (1 Stat. 424), authorized the President 'whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe,' to call forth such number of the militia of the states as he shall deem necessary and to issue his

Page 445

orders to the appropriate officers for that purpose. Cf. Const. art. 1, § 8, cl. 15. When war threatened in the summer of 1812, President Madison, acting under the authority of that statute, directed Major General Dearborn to requisition from New York, Massachusetts, and Connecticut certain numbers of the states' militia. American State Papers, Military Affairs, vol. 1, pp. 322 325. No finding of 'imminent danger of invasion' was made by the President in any express way, nor was such a finding made by the Secretary of War or any other official. The form of the requisitions to Massachusetts and Connecticut appears in the state papers of the government (American State Papers, supra); the form of those to New York was almost certainly the same. Replevin was brought by a New York militia man who refused to obey the orders, and whose property had been taken in payment of a fine imposed by a court martial. The defendant, a deputy marshal, defended on the ground that the orders were valid, and the plaintiff demurred because there was no allegation that the President had adjudged that there was imminent danger of an invasion. The case came to this court. Martin v. Mott, 12 Wheat. 19, 32, 6 L.Ed. 537. In an opinion by Story, J., the court upheld the seizure. 'The argument is (he wrote) that the power confided to the president is a limited power, and can be exercised only in the cases pointed out in the statute, and therefore, it is necessary to aver the facts which bring the exercise within the purview of the statute. In short, the same principles are sought t be applied to the delegation and exercise of this power intrusted to the executive of the nation for great political purposes, as might be applied to the humblest officer in the government, acting upon the most narrow and special authority. It is the opinion of the court, that this objection cannot be maintained. When the president exercises an authority confided to him by law, the presumption is, that it is exercised in pursuance

Page 446

of law. Every public officer is presumed to act in obedience to his duty, until the contrary is shown; and, a fortiori, this presumption ought to be favor ably applied to the chief magistrate of the Union. It is not necessary to aver, that the act which he might rightfully do, was so done.' A like presumption has been applied in other cases and in a great variety of circumstances. Philadelphia & Trenton R. Co. v. Stimpson, 14 Pet. 448, 458, 10 L.Ed. 535; Rankin v. Hoyt, 4 How. 327, 335, 11 L.Ed. 996; Carpenter v. Rannels, 19 Wall. 138, 146, 22 L.Ed. 77; Confiscation Cases (U.S. v. Clarke), 20 Wall. 92, 109, 22 L.Ed. 320; Knox County v. Ninth National Bank, 147 U.S. 91, 97, 13 S.Ct. 267, 37 L.Ed. 93; United States v. Chemical Foundation, 272 U.S. 1, 14, 15, 47 S.Ct. 1, 71 L.Ed. 131. This does not mean that the individual is helpless in the face of usurpation. A court will not revise the discretion of the Executive, sitting in judgment on his order as if it were the verdict of a jury. Martin v. Mott, supra. On the other hand, we have said that his order may not stand if it is an act of mere oppression, an arbitrary fiat that overleaps the bounds of judgment. Sterling v. Constantin, 287 U.S. 378, 399, 400, 401, 53 S.Ct. 190, 77 L.Ed. 375. The complainants and others in their position may show, if they can, that in no conceivable aspect was there anything in the conditions of the oil industry in July, 1933, to establish a connection between the prohibitory order and the declared policies of the Congress. This is merely to say that the standard must be such as to have at least a possible relation to the act to be performed under the delegated power. One can hardly suppose that a prohibitory order would survive a test in court if the Executive were to assert a relation between the transportation of petroleum and the maintenance of the gold standard or the preservation of peace in Europe or the Orient. On the other hand, there can be no challenge of such a mandate unless the possibility of a rational nexus is lacking alto-

Page 447

gether. Here, in the case at hand, the relation between the order and the standard is manifest upon the face of the transaction from facts so notorious as to be within the range of our judicial notice. There is significance in the fact that it is not challenged even now.

          The President, when acting in the exercise of a delegated power, is not a quasi judicial officer, whose rulings are subject to review upon certiorari or appeal (Chicago Junction Case, 264 U.S. 258, 265, 44 S.Ct. 317, 68 L.Ed. 667; cf. Givens v. Zerbst, 255 U.S. 11, 20, 41 S.Ct. 227, 65 L.Ed. 475), or an administrative agency supervised in the same way. Officers and bodies such as those may be required by reviewing courts to express their decision in formal and explicit findings to the end that review may be intelligent. Florida v. United States, 282 U.S. 194, 215, 51 S.Ct. 119, 75 L.Ed. 291; Beaumont, Sour Lake & Western R. Co. v. United States, 282 U.S. 74, 86, 51 S.Ct. 1, 75 L.Ed. 221; United States v. Baltimore & Ohio R. Co., 293 U.S. 454, 55 S.Ct. 268, 79 L.Ed. 587, Jan. 7, 1935. Cf. Public Service Commission of Wisconsin v. Wisconsin Telephone Co., 289 U.S. 67, 53 S.Ct. 514, 77 L.Ed. 1036. Such is not the position or duty of the President. He is the Chief Executive of the nation, exercising a power committed to him by Congress, and subject, in respect of the formal qualities of his acts, to the restrictions, if any, accompanying the grant, but not to any others. One will not find such restrictions either in the statute itself or in the Constitution back of it. The Constitution of the United States is not a code of civil practice.

          The prevailing opinion cites Wichita Railroad & Light Co. v. Public Utilities Commission of Kansas, 260 U.S. 48, 43 S.Ct. 51, 67 L.Ed. 124, and Mahler v. Eby, 264 U.S. 32, 44, 44 S.Ct. 283, 68 L.Ed. 549. One dealt with a delegation to a public utilities commission of the power to reduce existing rates if they were found to be unreasonable; the other a delegation to the Secretary of Labor of the power to deport aliens found after notice and a hearing to be undesirable residents. In each it was a

Page 448

specific requirement of the statute that the basic fact conditioning action by the administrative agency be stated in a finding and stated there expressly. If legislative power is delegated subject to a condition, it is a requirement of constitutional government that the condition be fulfilled. In default of such fulfillment, there is in truth no delegation, and hence no official action, but only the vain show of it. The analogy is remote between power so conditioned and that in controversy here.

          Discretionary action does not become subject to review because the discretion is legislative rather than executive. If the reasons for the prohibition now in controversy had been stated in the order, the jurisdiction of the courts would have been no greater and no less. Investigation resulting in an order directed against a particular person after notice and a hearing is not to be confused with investigation preliminary and incidental to the formulation of a rule. An embargo under the act of 1794 would have been more than a nullity though there had been a failure to recite that what was done was essential to the public safety or to enumerate the reasons leading to that conclusion. If findings are necessary as a preamble to general regulations, the requirement must be looked for elsewhere than in the Constitution of the nation.

          There are other questions as to the validity of section 9(c), 15 USCA § 709(c), in matters unrelated to the delegation of power to the President, and also questions as to the regulations adopted in behalf of the President by the Secretary of the Interior. They are not considered in the prevailing opinion. However, they have been well reviewed and disposed of in the opinion of Sibley, J., writing for the court below. It is unnecessary at this time to dwell upon them further.

          The decree in each case should be affirmed.

^{1 The full text of the Executive Order of July 11, 1933, is as follows:}

'Executive Order

'Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products Thereof Unlawfully Produced or Withdrawn from Storage.

'By virtue of the authority vested in me by the Act of Congress entitled 'An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,' approved June 16, 1933 (Public No. 67, 73d Congress), the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State, is hereby prohibited.

'Franklin D. Roosevelt.

'The White House,

'July 11, 1933.'

² The Executive Order of July 14, 1933, is as follows:

'Executive Order

'Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products Thereof Unlawfully Produced or Withdrawn from Storage.

'By virtue of the authority vested in me by the Act of Congress, entitled 'An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,' approved June 16, 1933 (Public No. 67, 73d Congress), in order to effectuate the intent and purpose of the Congress as expressed in Section 9(c) thereof, and for the purpose of securing the enforcement of my order of July 11, 1933, issued pursuant to said act, I hereby authorize the Secretary of the Interior to exercise all the powers vested in me, for the purpose of enforcing Section 9(c) of said act and said order, including full authority to designate and appoint such agents and to set up such boards and agencies as he may see fit, and to promulgate such rules and regulations as he may deem necessary.

'Franklin D. Roosevelt.

'The White House,

'July 14, 1933.'

³ The Executive Order of August 19, 1933, is as follows:

'Executive Order

'Code of Fair Competition for the Petroleum Industry.

'An application having been duly made, pursuant to and in full compliance with the provisions of Title I of the National Industrial Recovery Act, approved June 16, 1933, for my approval of a Code of Fair Competition for the Petroleum Industry, and hearings having been held thereon and the Administrator having rendered his report together with his recommendations and findings with respect thereto, and the Administrator having found that the said Code of Fair Competition complies in all respects with the pertinent provisions of Title I of said Act and that the requirements of clauses (1) and (2) of subsection (a) of Section 3 of the said Act have been met:

'Now, Therefore, I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by Title I of the National Industrial Recovery Act, approved June 16, 1933, and otherwise, do adopt and approve the report, recommendations and findings of the Administrator and do order that the said Code of Fair Competition be and it is hereby approved.

'Franklin D. Roosevelt.

'Approval Recommended:

'Hugh S. Johnson, Administrator.

'The White House,

'August 19, 1933.'

⁴ The government states that, although the second paragraph of section 4 of article III was a part of the code for a short period prior to September 13, 1933, no legal basis exists for prosecution for production in Texas during that period.

⁵ See United States v. The Schooner Peggy, 1 Cranch, 103, 109, 110, 2 L.Ed. 49; Dinsmore v. Southern Express Co., 183 U.S. 115;, 120, 22 S.Ct. 45, 46 L.Ed. 111; Crozier v. Fried Krupp Aktiengesellschaft, 224 U.S. 290, 302, 32 S.Ct. 488, 56 L.Ed. 771; Gulf, Colorado & Santa Fe R. Co. v. Dennis, 224 U.S. 503, 507, 32 S.Ct. 542, 56 L.Ed. 860; Watts, Watts & Co. v. Unione Austriaca, 248 U.S. 9, 21, 39 S.Ct. 1, 63 L.Ed. 100, 3 A.L.R. 323; Duplex Printing Press Co. v. Deering, 254 U.S. 443, 464, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196; American Steel Foundries v. Tri-City Council, 257 U.S. 184, 201, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360; Texas Company v. Brown, 258 U.S. 466, 474, 42 S.Ct. 375, 66 L.Ed. 721.

⁶ The text of section 1 is as follows:

'Section 1. A national emergency productive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people, is hereby declared to exist. It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.'

⁷ Acts of June 4, 1794, 1 Stat. 372; March 3, 1795, 1 Stat. 444; June 13, 1798, 1 Stat. 565, 566; February 9, 1799, 1 Stat. 613, 615; February 27, 1800, 2 Stat. 7, 9, 10; March 3, 1805, 2 Stat. 339, 341, 342; February 28, 1806, 2 Stat. 351, 352; April 22, 1808, 2 Stat. 490.

⁸ Marshall's Life of Washington, vol. 2, p. 319 et seq.

⁹ Thus, prior to the Act of June 4, 1794 (1 Stat. 372), the Congress had laid embargoes, for limited periods, upon vessels in ports of the United States bound to foreign ports. Resolutions of March 26, 1794, and April 18, 1794, 1 Stat. 400, 401. Fearing that the national safety might be endangered, the President, by the Act of June 4, 1794, was authorized to lay an embargo, with appropriate regulations, whenever he found that 'the public safety shall so require' (section 1), the authority not to be exercised while the Congress was in session and the embargo to be limited in any case to 15 days after the commencement of the next session. The Act of March 3, 1795 (1 Stat. 444), authorizing the President to permit the exportation of arms, etc., was 'in cases connected with the security of the commercial interest of the United States, and for public purposes only.' By the Act of June 13, 1798 (1 Stat. 565), commercial intercourse was suspended between the United States and France and its dependencies. The act was to continue only until the end of the next session of Congress, and it was provided (section 5) that if, before the next session, the government of France 'shall clearly disavow, and shall be found to refrain from the aggressions, depredations and hostilities' against the vessels and other property of citizens of the United States, and shall acknowledge the neutrality of the United States, 'it shall be lawful for the President,' 'being well ascertained of the premises,' to remit and discontinue the prohibitions and restraints imposed by the act and to make proclamation accordingly. (continued on p. 423)

The Act of February 9, 1799 (1 Stat. 613), further suspended commercial intercourse between the United States and France and its dependencies until March 3, 1800, and gave a similar authority (section 4) to the President to remit and discontinue the restraints and prohibitions of the act, 'if he shall deem it expedient and consistent with the interest of the United States,' either with respect to the French Republic or to any place belonging to that republic, 'with which a commercial intercourse may safely be renewed,' and to revoke such order if he found that the interest of the United States so required. The suspension of commercial intercourse was renewed by the Act of February 27, 1800 (2 Stat. 7) until March 3, 1801, with a similar provision as to the authority of the President. The Act of March 3, 1805 (2 Stat. 339), related to persons committing treason, felony, etc., within the jurisdiction of the United States and taking refuge in foreign armed vessels, and the authority to the President to permit or prevent the entry of such vessels into the waters of the United States (section 4) was 'in order to prevent insults to the authority of the laws, whereby the peace of the United States with foreign nations may be endangered.' See, also, Act of April 22, 1808, 2 Stat. 490. See, also, Proclamations of President Adams, 'Works of John Adams,' vol. IX, pp. 176, 177.

¹⁰ See Act of June 28, 1809, 2 Stat. 550.

¹¹ Acts of March 3, 1815, 3 Stat. 224; March 3, 1817, 3 Stat. 361; January 7, 1824, 4 Stat. 2; May 24, 1828, 4 Stat. 308; May 31, 1830, 4 Stat. 425; March 6, 1866, 14 Stat. 3; March 3, 1883, 22 Stat. 490; June 26, 1884, 23 Stat. 57; October 1, 1890, 26 Stat. 616; R.S. §§ 2493, 2494, 4219, 4228. Proclamations of Presidents: 3 Stat.App. 1; 4 Stat.App. 3, pp. 814—818; 9 Stat.App. 1001, 1004; 11 Stat.App. 795; 13 Stat.App. 739; 14 Stat.App. 818, 819; 16 Stat.App. 1127; 17 Stat.App. 954, 956, 957; 21 Stat. 800; 23 Stat. 841, 842, 844.

For other analogous statutes, see Acts of December 17, 1813, 3 Stat. 88, 93; June 19, 1886, 24 Stat. 79, 82 (section 17 (46 USCA § 142)); March 3, 1887, 24 Stat. 475 (46 USCA § 143); August 30, 1890, 26 Stat. 414, 415 (sections 4, 5 (21 USCA § 18; 19 USCA § 181)); February 15, 1893, 27 Stat. 449, 452 (section 7 (42 USCA § 111)); March 2, 1895, 28 Stat. 727, 733; September 8, 1916, 39 Stat. 756, 799 (15 USCA §§ 75—77); June 15, 1917, 40 Stat. 217, 225; August 10, 1917, 40 Stat. 276; October 6, 1917, 40 Stat. 411, 422 (section 11 (50 USCA Appendix, § 11)); March 4, 1919, 40 Stat. 1348, 1350; June 17, 1930, 46 Stat. 590, 704 (section 338 (19 USCA § 1338)). Resolutions of March 14, 1912, 37 Stat. 630; January 31, 1922, 42 Stat. 361 (22 USCA §§ 236, 237). Proclamations: 24 Stat. 1024, 1025, 1028, 1030; 27 Stat. 995, 1011; 38 Stat. 1960; 39 Stat. 1756; 40 Stat. 1683, 1689, et seq.

¹² See, also, sections 4(b) and 5(a) of the Trading with the Enemy Act, 40 Stat. 411, 414, 415, 50 USCA Appendix §§ 4(b), 5(a).

¹³ Act of March 28, 1928, § 5 (amending section 9 of the Radio Act of 1927) 45 Stat. 373.

¹⁴ See Acts and Proclamations cited in note 11, supra.

¹⁵ See Philadelphia & T.R.R. Co. v. Stimpson, 14 Pet. 448, 458, 10 L.Ed. 535; Martin v. Mott, 12 Wheat. 19, 30, 32, 6 L.Ed. 537; Dakota Central Telephone Co. v. South Dakota, 250 U.S. 163, 182, 184, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; United States v. Chemical Foundation, 272 U.S. 1, 14, 15, 47 S.Ct. 1, 71 L.Ed. 131; Sterling v. Constantin, 287 U.S. 378, 399, 53 S.Ct. 190, 77 L.Ed. 375.

¹ 'Section 1. * * * It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.'

The act as a whole is entitled as one 'To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,' and the heading of title I, which includes sections 1 to 10, is 'Industrial Recovery.'

² 2 Stat. 411, December 19, 1806; 3 Stat. 224, March 3, 1815; 23 Stat. 31, 32, May 29, 1884; 25 Stat. 659, February 9, 1889; 38 Stat. 717 (15 USCA § 41 et seq.), September 26, 1914; 41 Stat. 593 (8 USCA § 157), May 10, 1920; Williams v. United States, 138 U.S. 514, 11 S.Ct. 457, 34 L.Ed. 1026; Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525; Inter-Mountain Rate Case (U.S. v. Atchison, T. & S.F.R. Co.), 234 U.S. 476, 34 S.Ct. 986, 58 L.Ed. 1408; Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549. Cf. Emergency Banking Act of March 9, 1933, 48 Stat. 1; Agricultural Adjustment Act of May 12, 1933, 48 Stat. 51, 53, § 43.

³ 'Executive Order. Prohibition of Transportation in Interstate and Foreign Commerce of Petroleum and the Products Thereof Unlawfully Produced or Withdrawn from Storage. By virtue of the authority vested in me by the Act of Congress entitled 'An Act To encourage national industrial recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes,' approved June 16, 1933 (Public No. 67, 73d Congress), the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State, is hereby prohibited. Franklin D. Roosevelt. The White House, July 11, 1933.' No. 6199.

A.L.A. Schechter Poultry Corporation et al. v. United States. 

Nos. 854, 864.

Argued May 2, 3, 1935.

Decided May 27, 1935.

*519Mr. Chief Justice HUGHES delivered the opinion of the Court.

Petitioners in No. 854 were convicted in the District Court of the United States for the Eastern District of New York on eighteen counts of an indictment charging violations of what is known as the 'Live Poultry Code,'1 and on an additional count for conspiracy to commit such violations.2 By demurrer to the indictment and appropriate motions on the trial, the defendants contended (1) that the code had been adopted pursuant to an unconstitutional delegation by Congress of legislative power; (2) that it attempted to regulate intrastate transactions which lay outside the authority of Congress; and (3) that in certain provisions it was repugnant to the due process clause of the Fifth Amendment.

*520'The Circuit Court of Appeals sustained the conviction on the conspiracy count and on sixteen counts for violation of the code, but reversed the conviction on two counts which charged violation of requirements as to minimum wages and maximum hours of labor, as these were not deemed to be within the congressional power of regulation. 76 F.(2d) 617. On the respective applications of the defendants (No. 854) and of the government (No. 864), this Court granted writs of certiorari April 15, 1935. 295 U.S. 723, 55 S.Ct. 651, 79 L.Ed. —-.

New York City is the largest live poultry market in the United States. Ninety-six per cent. of the live poultry there marketed comes from other states. Three-fourths of this amount arrives by rail and is consigned to commission men or receivers. Most of these freight shipments (about 75 per cent.) come in at the Manhattan Terminal of the New York Central Railroad, and the remainder at one of the four terminals in New Jersey serving New York City. The commission men transact by far the greater part of the business on a commission basis, representing the shippers as agents, and remitting to them the proceeds of sale, less commissions, freight, and handling charges. Otherwise, they buy for their own account. They sell to slaughterhouse operators who are also called marketmen.

The defendants are slaughterhouse operators of the latter class. A.L.A. Schechter Poultry Corporation and Schechter Live Poultry Market are corporations conducting wholesale poultry slaughterhouse markets in Brooklyn, New York City. Joseph Schechter operated the latter corporation and also guaranteed the credits of the former corporation, which was operated by Martin, Alex, and Aaron Schechter. Defendants ordinarily purchase their live poultry from commission men at the West Washington Market in New York City or at the railroad terminals serving the city, but occasionally they purchase from commission men in Philadelphia. They buy the*521 poultry for slaughter and resale. After the poultry is trucked to their slaughterhouse markets in Brooklyn, it is there sold, usually within twenty-four hours, to retail poultry dealers and butchers who sell directly to consumers. The poultry purchased from defendants is immediately slaughtered, prior to delivery, by shochtim in defendants' employ. Defendants do not sell poultry in interstate commerce.

The 'Live Poultry Code' was promulgated under section 3 of the National Industrial Recovery Act.3 That section, the pertinent provisions of which are set forth in the margin,4 authorizes the President to approve 'codes of*522 fair competition.' SUCH A CODE may be approved for a trade or industry, upon application by one or more trade or industrial associations or groups, if the President finds (1) that such associations or groups 'impose no inequitable restrictions on admission to membership therein and are truly representative,' and (2) that such codes are not designed 'to promote monopolies or to eliminate or oppress small enterprises and will not operate to discrimi*523nate against them, and will tend to effectuate the policy' of title 1 of the act (15 USCA § 701 et seq.). Such codes 'shall not permit monopolies or monopolistic practices.' As a condition of his approval, the President may 'impose such conditions (including requirements for the making of reports and the keeping of accounts) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and may provide such exceptions to and exemptions from the provisions of such code as the President in his discretion deems necessary to effectuate the policy herein declared.' Where such a code has not been approved, the President may prescribe one, either on his own motion or on complaint. Violation of any provision of a code (so approved or prescribed) 'in any transaction in or affecting interstate or foreign commerce' is made a misdemeanor punishable by a fine of not more than $500 for each offense, and each day the violation continues is to be deemed a separate offense.

The 'Live Poultry Code' was approved by the President on April 13, 1934. Its divisions indicate its nature and scope. The code has eight articles entitled (1) 'purposes,' (2) 'definitions,' (3) 'hours,' (4) 'wages,' (5) 'general labor provisions,' (6) 'administration,' (7) 'trade practice provisions,' and (8) 'general.'

The declared purpose is 'To effect the policies of title I of the National Industrial Recovery Act.' The code is established as 'a code for fair competition for the live poultry industry of the metropolitan area in and about the City of New York.' That area is described as embracing the five boroughs of New York City, the counties of Rockland, Westchester, Nassau, and Suffolk in the state of New York, the counties of Hudson and Bergen in the state of New Jersey, and the county of Fairfield in the state of Connecticut.

The 'industry' is defined as including 'every person engaged in the business of selling, purchasing of re*524sale, transporting, or handling and/or slaughtering live poultry, from the time such poultry comes into the New York metropolitan area to the time it is first sold in slaughtered form,' and such 'related branches' as may from time to time be included by amendment. Employers are styled 'members of the industry,' and the term 'employee' is defined to embrace 'any and all persons engaged in the industry, however compensated,' except 'members.'

The code fixes the number of hours for workdays. It provides that no employee, with certain exceptions, shall be permitted to work in excess of forty hours in any one week, and that no employees, save as stated, 'shall be paid in any pay period less than at the rate of fifty (50) cents per hour.' The article containing 'general labor provisions' prohibits the employment of any person under 16 years of age, and declares that employees shall have the right of 'collective bargaining' and freedom of choice with respect to labor organizations, in the terms of section 7(a) of the act (15 USCA § 707(a). The minimum number of employees, who shall be employed by slaughterhouse operators, is fixed; the number being graduated according to the average volume of weekly sales.

Provision is made for administration through an 'industry advisory committee,' to be selected by trade associations and members of the industry, and a 'code supervisor,' to be appointed, with the approval of the committee, by agreement between the Secretary of Agriculture and the Administrator for Industrial Recovery. The expenses of administration are to be borne by the members of the industry proportionately upon the basis of volume of business, or such other factors as the advisory committee may deem equitable, 'subject to the disapproval of the Secretary and/or Administrator.'

The seventh article, containing 'trade practice provisions,' prohibits various practices which are said to consti*525tute 'unfair methods of competition.' The final article provides for verified reports, such as the Secretary or Administrator may require, '(1) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and (2) for the determination by the Secretary or Administrator of the extent to which the declared policy of the act is being effectuated by this code.' The members of the industry are also required to keep books and records which 'will clearly reflect all financial transactions of their respective businesses and the financial condition thereof,' and to submit weekly reports showing the range of daily prices and volume of sales' for each kind of produce.

The President approved the code by an executive order (No. 6675—A) in which he found that the application for his approval had been duly made in accordance with the provisions of title 1 of the National Industrial Recover Act; that there had been due notice and hearings; that the code constituted 'a code of fair competition' as contemplated by the act and complied with its pertinent provisions, including clauses (1) and (2) of subsection (a) of section 3 of title 1 (15 USCA § 703(a)(1, 2); and that the code would tend 'to effectuate the policy of Congress as declared in section 1 of Title I.'5 *526 The executive order also recited that the Secretary of Agriculture and the Administrator of the National Industrial Recovery Act had rendered separate reports as to the provisions within their respective jurisdictions. The Secretary of Agriculture reported that the provisions of the code 'establishing standards of fair competition (a) are regulations of transactions in or affecting the current of interstate and/or foreign commerce and (b) are reason*527able,' and also that the code would tend to effectuate the policy declared in title 1 of the act, as set forth in section 1 (15 USCA § 701). The report of the Administrator for Industrial Recovery dealt with wages, hours of labor, and other labor provisions.6

Of the eighteen counts of the indictment upon which the defendants were convicted, aside from the count for conspiracy, two counts charged violation of the minimum wage and maximum hour provisions of the code, and ten counts were for violation of the requirement (found in the 'trade practice provisions') of 'straight killing.' This requirement was really one of 'straight' selling. The term 'straight killing' was defined in the code as 'the practice of requiring persons purchasing poultry for resale to accept the run of any half coop, coop, or coops, as purchased by slaughterhouse operators, except for culls.'7 The charges in the ten counts, respectively, were*528 that the defendants in selling to retail dealers and butchers had permitted 'selections of individual chickens taken from particular coops and half coops.'

Of the other six counts, one charged the sale to a butcher of an unfit chicken; two counts charged the making of sales without having the poultry inspected or approved in accordance with regulations or ordinances of the city of New York; two counts charged the making of false reports or the failure to make reports relating to the range of daily prices and volume of sales for certain periods; and the remaining count was for sales to slaughterers or dealers who were without licenses required by the ordinances and regulations of the city of New York.

First. Two preliminary points are stressed by the government with respect to the appropriate approach to the important questions presented. We are told that the provision of the statute authorizing the adoption of codes must be viewed in the light of the grave national crisis with which Congress was confronted. Undoubtedly, the conditions to which power is addressed are always to be considered when the exercise of power is challenged. Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.8 The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the*529 imposed limits because they believe that more or different power is necessary. Such assertions of extraconstitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment—'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'

The further point is urged that the national crisis demanded a broad and intensive co-operative effort by those engaged in trade and industry, and that this necessary co-operation was sought to be fostered by permitting them to initiate the adoption of codes. But the statutory plan is not simply one for voluntary effort. It does not seek merely to endow voluntary trade or industrial associations or groups with privileges or immunities. It involves the coercive exercise of the lawmaking power. The codes of fair competition which the statute attempts to authorize are codes of laws. If valid, they place all persons within their reach under the obligation of positive law, binding equally those who assent and those who do not assent. Violations of the provisions of the codes are punishable as crimes.

Second. The Question of the Delegation of Legislative Power. We recently had occasion to review the pertinent decisions and the general principles which govern the determination of this question. Panama Refining Company v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed . 446. The Constitution provides that 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Article 1, § 1. And the Congress is authorized 'To make all Laws which shall be necessary and proper for carrying into Execution' its general powers. Article 1, § 8, par. 18. The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. We have repeatedly recognized the necessity of adapting*530 legislation to complex conditions involving a host of details with which the national Legislature cannot deal directly. We pointed out in the Panama Refining Company Case that the Constitution has never been regarded as denying to Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. But we said that the constant recognition of the necessity and validity of such provisions, and the wide range of administrative authority which has been developed by means of them, cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. Id., 293 U.S. 388, page 421, 55 S.Ct. 241, 79 L.Ed. 446.

Accordingly, we look to the statute to see whether Congress has overstepped these limitations—whether Congress in authorizing 'codes of fair competition' has itself established the standards of legal obligation, thus performing its essential legislative function, or, by the failure to enact such standards, has attempted to transfer that function to others.

The aspect in which the question is now presented is distinct from that which was before us in the case of the Panama Refining Company. There the subject of the statutory prohibition was defined. National Industrial Recovery Act, § 9(c), 15 USCA § 709(c). That subject was the transportation in interstate and foreign commerce of petroleum and petroleum products which are produced or withdrawn from storage in excess of the amount permitted by state authority. The question was with respect to the range of discretion given to the President in prohibiting that transportation. Id., 293 U.S. 388, pages 414, 415, 430, 55 S.Ct. 241, 79 L.Ed. 446. As to the 'codes of fair competition,' under section 3 of the act, the question is more funda*531mental. It is whether there is any adequate definition of the subject to which the codes are to be addressed.

What is meant by 'fair competition' as the term is used in the act? Does it refer to a category established in the law, and is the authority to make codes limited accordingly? Or is it used as a convenient designation for whatever set of laws the formulators of a code for a particular trade or industry may propose and the President may approve (subject to certain restrictions), or the President may himself prescribe, as being wise and beneficient provisions for the government of the trade or industry in order to accomplish the broad purposes of rehabilitation, correction, and expansion which are stated in the first section of title 1?9

  The act does not define 'fair competition.' 'Unfair competition,' as known to the common law, is a limited concept. Primarily, and strictly, it relates to the palming off of one's goods as those of a rival trader. Good-year's Rubber Manufacturing Co. v. Good-year Rubber Co., 128 U.S. 598,*532 604, 9 S.Ct. 166, 32 L.Ed. 535; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 140, 25 S.Ct. 609, 49 L.Ed. 972; Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 413, 36 S.Ct. 357, 60 L.Ed. 713. In recent years, its scope has been extended. It has been held to apply to misappropriation as well as misrepresenation, to the selling of another's goods as one's own to misappropriation of what equitably belongs to a competitor. International News Service v. Associated Press, 248 U.S. 215, 241, 242, 39 S.Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293. Unfairness in competition has been predicated of acts which lie outside the ordinary course of business and are tainted by fraud or coercion or conduct otherwise prohibited by law.10 Id., 248 U.S. 315, page 258, 39 S.Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293. But it is evident that in its widest range, 'unfair competition,' as it has been understood in the law, does not reach the objectives of the codes which are authorized by the National Industrial Recovery Act. The codes may, indeed, cover conduct which existing law condemns, but they are not limited to conduct of that sort. The government does not contend that the act contemplates such a limitation. It would be opposed both to the declared purposes of the act and to its administrative construction.

The Federal Trade Commission Act [section 5 (15 USCA § 45 11 introduced the expression 'unfair methods of competition,' which were declared to be unlawful. That was an expression new in the law. Debate apparently convinced the sponsors of the legislation that the words 'unfair competition,' in the light of their meaning at common law, were too narrow. We have said that the substituted phrase has a broader meaning, that it does not admit of precise definition; its scope being left to judicial determination as controversies arise. Federal Trade Commission v. Raladam Co., 283 U.S. 643, 648, 649, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191; Federal Trade Commission v. R. F. Keppel, 291 U.S. 304, 310—312, 54 S.Ct. 423, 78 L.Ed. 814. What are*533 'UNFAIR METHODS OF COMPETITION' ARE THUS to be determined in particular instances, upon evidence, in the light of particular competitive conditions and of what is found to be a specific and substantial public interest. Federal Trade Commission v. Beech-Nut Packing Co., 257 U.S. 441, 453, 42 S.Ct. 150, 66 L.Ed. 307, 19 A.L.R. 882; Federal Trade Commission v. Klesner, 280 U.S. 19, 27, 28, 50 S.Ct. 1, 74 L.Ed. 138, 68 A.L.R. 838; Federal Trade Commission v. Raladam Co., supra; Federal Trade Commission v. R. F. Keppel, supra; Federal Trade Commission v. Algoma Lumber Co., 291 U.S. 67, 73, 54 S.Ct. 315, 78 L.Ed. 655. To make this possible, Congress set up a special procedure. A commission, a quasi judicial body, was created. Provision was made for formal complaint, for notice and hearing, for appropriate findings of fact supported by adequate evidence, and for judicial review to give assurance that the action of the commission is taken within its statutory authority. Federal Trade Commission v. Raladam Co., supra; Federal Trade Commission v. Klesner, supra.12

In providing for codes, the National Industrial Recovery Act dispenses with this administrative procedure and with any administrative procedure of an analogous character. But the difference between the code plan of the Recovery Act and the scheme of the Federal Trade Commission Act lies not only in procedure but in subject*534matter. We cannot regard the 'fair competition' of the codes as antithetical to the 'unfair methods of competition' of the Federal Trade Commission Act. The 'fair competition' of the codes has a much broader range and a new significance. The Recovery Act provides that it shall not be construed to impair the powers of the Federal Trade Commission, but, when a code is approved, its provisions are to be the 'standards of fair competition' for the trade or industry concerned, and any violation of such standards in any transaction in or affecting interstate or foreign commerce is to be deemed 'an unfair method of competition' within the meaning of the Federal Trade Commission Act. Section 3(b) of the act, 15 USCA § 703(b).

For a statement of the authorized objectives and content of the 'codes of fair competition,' we are referred repeatedly to the 'Declaration of Policy' in section 1 of title 1 of the Recovery Act (15 USCA § 701). Thus the approval of a code by the President is conditioned on his finding that it 'will tend to effectuate the policy of this title.' Section 3(a) of the act, 15 USCA § 703(a). The President is authorized to impose such conditions 'for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and may provide such exceptions to and exemptions from the provisions of such code, as the President in his discretion deems necessary to effectuate the policy herein declared.' Id. The 'policy herein declared' is manifestly that set forth in section 1. That declaration embraces a broad range of objectives. Among them we find the elimination of 'unfair competitive practices.' But, even if this clause were to be taken to relate to practices which fall under the ban of existing law, either common law or statute, it is still only one of the authorized aims described in section 1. It is there declared to be 'the policy of Congress'—'to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount*535 thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.'13

Under section 3, whatever 'may tend to effectuate' these general purposes may be included in the 'codes of fair competition.' We think the conclusion is inescapable that the authority sought to be conferred by section 3 was not merely to deal with 'unfair competitive practices' which offend against existing law, and could be the subject of judicial condemnation without further legislation, or to create administrative machinery for the application of established principles of law to particular instances of violation. Rather, the purpose is clearly disclosed to authorize new and controlling prohibitions through codes of laws which would embrace what the formulators would propose, and what the President would approve or prescribe, as wise and beneficient measures for the government of trades and industries in order to bring about their rehabilitation, correction, and development, according to the general declaration of policy in section 1. Codes of laws of this sort are styled 'codes of fair competition.'

We find no real controversy upon this point and we must determine the validity of the code in question in this aspect. As the government candidly says in its*536 brief: 'The words 'policy of this title' clearly refer to the 'policy' which Congress declared in the section entitled 'Declaration of Policy'—Section 1. All of the policies there set forth point toward a single goal—the rehabilitation of industry and the industrial recovery which unquestionably was the major policy of Congress in adopting the National Industrial Recovery Act.' And that this is the controlling purpose of the code now before us appears both from its repeated declarations to that effect and from the scope of its requirements. It will be observed that its provisions as to the hours and wages of employees and its 'general labor provisions' were placed in separate articles, and these were not included in the article on 'trade practice provisions' declaring what should be deemed to constitute 'unfair methods of competition.' The Secretary of Agriculture thus stated the objectives of the Live Poultry Code in his report to the President, which was recited in the executive order of approval:

'That said code will tend to effectuate the declared policy of title I of the National Industrial Recovery Act as set forth in section 1 of said act in that the terms and provisions of such code tend to: (a) Remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof: (b) to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups; (c) to eliminate unfair competitive practices; (d) to promote the fullest possible utilization of the present productive capacity of industries; (e) to avoid undue restriction of production (except as may be temporarily required); (f) to increase the consumption of industrial and agricultural products by increasing purchasing power; and (g) otherwise to rehabilitate industry and to conserve natural resources.'*537 The government urges that the codes will 'consist of rules of competition deemed fair for each industry by representative members of that industry—by the persons most vitally concerned and most familiar with its problems.' Instances are cited in which Congress has availed itself of such assistance; as, e.g., in the exercise of its authority over the public domain, with respect to the recognition of local customs or rules of miners as to mining claims, 14 or, in matters of a more or less technical nature, as in designating the standard height of drawbars.15 But would it be seriously contended that Congress could delegate its legislative authority to trade or industrial associations or groups so as to empower them to enact the laws they deem to be wise and beneficent for the rehabilitation and expansion of their trade or industries? Could trade or industrial associations or groups be constituted legislative bodies for that purpose because such associations or groups are familiar with the problems of their enterprises? And could an effort of that sort be made valid by such a preface of generalities as to permissible aims as we find in section 1 of title 1? The answer is obvious. Such a delegation of legislative power is unknown to our law, and is utterly inconsistent with the constitutional prerogatives and duties of Congress.

The question, then, turns upon the authority which section 3 of the Recovery Act vests in the President to approve or prescribe. If the codes have standing as penal statutes, this must be due to the effect of the executive action. But Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make*538 whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry. See Panama Refining Company v. Ryan, supra, and cases there reviewed.

Accordingly we turn to the Recovery Act to ascertain what limits have been set to the exercise of the President's discretion: First, the President, as a condition of approval, is required to find that the trade or industrial associations or groups which propose a code 'impose no inequitable restrictions on admission to membership' and are 'truly representative.' That condition, however, relates only to the status of the initiators of the new laws and not to the permissible scope of such laws. Second, the President is required to find that the code is not 'designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them.' And to this is added a proviso that the code 'shall not permit monopolies or monopolistic practices.' But these restrictions leave virtually untouched the field of policy envisaged by section 1, and, in that wide field of legislative possibilities, the proponents of a code, refraining from monopolistic designs, may roam at will, and the President may approve or disapprove their proposals as he may see fit. That is the precise effect of the further finding that the President is to make—that the code 'will tend to effectuate the policy of this title.' While this is called a finding, it is really but a statement of an opinion as to the general effect upon the promotion of trade or industry of a scheme of laws. These are the only findings which Congress has made essential in order to put into operation a legislative code having the aims described in the 'Declaration of Policy.'

Nor is the breadth of the President's discretion left to the necessary implications of this limited requirement as to his findings. As already noted, the President in approving a code may impose his own conditions, adding to*539 or taking from what is proposed, as 'in his discretion' he thinks necessary 'to effectuate the policy' declared by the act. Of course, he has no less liberty when he prescribes a code on his own motion or on complaint, and he is free to prescribe one if a code has not been approved. The act provides for the creation by the President of administrative agencies to assist him, but the action or reports of such agencies, or of his other assistants their recommendations and findings in relation to the making of codes—have no sanction beyond the will of the President, who may accept, modify, or reject them as he pleases. Such recommendations or findings in no way limit the authority which section 3 undertakes to vest in the President with no other conditions than those there specified. And this authority relates to a host of different trades and industries, thus extending the President's discretion to all the varieties of laws which he may deem to be beneficial in dealing with the vast array of commercial and industrial activities throughout the country.

Such a sweeping delegation of legislative power finds no support in the decisions upon which the government especially relies. By the Interstate Commerce Act (49 USCA § 1 et seq.), Congress has itself provided a code of laws regulating the activities of the common carriers subject to the act, in order to assure the performance of their services upon just and reasonable terms, with adequate facilities and without unjust discrimination. Congress from time to time has elaborated its requirements, as needs have been disclosed. To facilitate the application of the standards prescribed by the act, Congress has provided an expert body. That administrative agency, in dealing with particular cases, is required to act upon notice and hearing, and its orders must be supported by findings of fact which in turn are sustained by evidence. Interstate Commerce Commission v. Louisville & Nashville Railroad Company, 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; State of Florida v. United States, 282 U.S. 194, 51 S.Ct. 119, 75 L.Ed. 291; United States*540 v. Baltimore & Ohio Railroad Company, 293 U.S. 454, 55 S.Ct. 268, 79 L.Ed. 587. When the Commission is authorized to issue, for the construction, extension, or abandonment of lines, a certificate of 'public convenience and necessity,' or to permit the acquisition by one carrier of the control of another, if that is found to be 'in the public interest,' we have pointed out that these provisions are not left without standards to guide determination. The authority conferred has direct relation to the standards prescribed for the service of common carriers, and can be exercised only upon findings, based upon evidence, with respect to particular conditions of transportation. New York Central Securities Corporation v. United States, 287 U.S. 12, 24, 25, 53 S.Ct. 45, 77 L.Ed. 138; Texas & Pacific Railway Co. v. Gulf, Colorado & Santa Fe Railway Co., 270 U.S. 266, 273, 46 S.Ct. 263, 70 L.Ed. 578; Chesapeake & Ohio Railway Co. v. United States, 283 U.S. 35, 42, 51 S.Ct. 337, 75 L.Ed. 824.

Similarly, we have held that the Radio Act of 192716 established standards to govern radio communications, and, in view of the limited number of available broadcasting frequencies, Congress authorized allocation and licenses. The Federal Radio Commission was created as the licensing authority, in order to secure a reasonable equality of opportunity in radio transmission and reception. The authority of the Commission to grant licenses 'as public convenience, interest or necessity requires' was limited by the nature of radio communications, and by the scope, character, and quality of the services to be rendered and the relative advantages to be derived through distribution of facilities. These standards established by Congress were to be enforced upon hearing and evidence by an administrative body acting under statutory restrictions adapted to the particular activity. Federal Radio Commission v. Nelson Brothers Bond & Mtg. Co., 289 U.S. 266, 53 S.Ct. 627, 77 L.Ed. 1166.

*541In Hampton, Jr. & Company v. United States, 276 U.S. 394, 48 S.Ct. 348, 350, 72 L.Ed. 624 the question related to the 'flexible tariff provision' of the Tariff Act of 1922.17 We held that Congress had described its plan 'to secure by law the imposition of customs duties on articles of imported merchandise which should equal the difference between the cost of producing in a foreign country the articles in question and laying them down for sale in the United States, and the cost of producing and selling like or similar articles in the United States.' As the differences in cost might vary from time to time, provision was made for the investigation and determination of these differences by the executive branch so as to make 'the adjustments necessary to conform the duties to the standard underlying that policy and plan.' Id. 276 U.S. 394, pages 404, 405, 48 S.Ct. 348, 350, 72 L.Ed. 624. The Court found the same principle to be applicable in fixing customs duties as that which permitted Congress to exercise its rate-making power in interstate commerce, 'by declaring the rule which shall prevail in the legislative fixing of rates,' and then remitting 'the fixing of such rates' in accordance with its provisions 'to a rate-making body.' Id. 276 U.S. 394, page 409, 48 S.Ct. 348, 352, 72 L.Ed. 624. The Court fully recognized the limitations upon the delegation of legislative power. Id. 276 U.S. 394, pages 408—411, 48 S.Ct. 348, 72 L.Ed. 624.

To summarize and conclude upon this point: Section 3 of the Recovery Act (15 USCA § 703 is without precedent. It supplies no standards for any trade, industry, or activity. It does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, section 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction, and expansion described in section 1. In view of the scope of that broad declaration and of the*542 nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power.

Third. The Question of the Application of the Provisions of the Live Poultry Code to Intrastate Transactions.—Although the validity of the codes (apart from the question of delegation) rests upon the commerce clause of the Constitution, section 3(a) of the act (15 USCA § 703(a) is not in terms limited to interstate and foreign commerce. From the generality of its terms, and from the argument of the government at the bar, it would appear that section 3(a) was designed to authorize codes without that limitation. But under section 3(f) of the act (15 USCA § 73(f) penalties are confined to violations of a code provision 'in any transaction in or affecting interstate or foreign commerce.' This aspect of the case presents the question whether the particular provisions of the Live Poultry Code, which the defendants were convicted for violating and for having conspired to violate, were within the regulating power of Congress.

These provisions relate to the hours and wages of those employed by defendants in their slaughterhouses in Brooklyn and to the sales there made to retail dealers and butchers.

Were these transactions 'in' interstate commerce? Much is made of the fact that almost all the poultry coming to New York is sent there from other states. But the code provisions, as here applied, do not concern the transportation of the poultry from other states to New York, or the transactions of the commission men or others to whom it is consigned, or the sales made by such consignees to defendants. When defendants had made their purchases, whether at the West Washington Market in New York City or at the railroad*543 terminals serving the city, or elsewhere, the poultry was trucked to their slaughterhouses in Brooklyn for local disposition. The interstate transactions in relation to that poultry then ended. Defendants held the poultry at their slaughterhouse markets for slaughter and local sale to retail dealers and butchers who in turn sold directly to consumers. Neither the slaughtering nor the sales by defendants were transactions in interstate commerce. Brown v. Houston, 114 U.S. 622, 632, 633, 5 S.Ct. 1091, 29 L.Ed. 257; Public Utilities Commission v. Landon, 249 U.S. 236, 245, 39 S.Ct. 268, 63 L.Ed. 577; Industrial Association v. United States, 268 U.S. 64, 78, 79, 45 S.Ct. 403, 69 L.Ed. 849; Atlantic Coast Line R. Co. v. Standard Oil Co., 275 U.S. 257, 267, 48 S.Ct. 107, 72 L.Ed. 270.

The undisputed facts thus afford no warrant for the argument that the poultry handled by defendants at their slaughterhouse markets was in a 'current' or 'flow' of interstate commerce, and was thus subject to congressional regulation. The mere fact that there may be a constant flow of commodities into a state does not mean that the flow continues after the property has arrived and has become commingled with the mass of property within the state and is there held solely for local disposition and use. So far as the poultry here in question is concerned, the flow in interstate commerce had ceased. The poultry had come to a permanent rest within the state. It was not held, used, or sold by defendants in relation to any further transactions in interstate commerce and was not destined for transportation to other states. Hence decisions which deal with a stream of interstate commerce—where goods come to rest within a state temporarily and are later to go forward in interstate commerce—and with the regulations of transactions involved in that practical continuity of movement, are not applicable here. See Swift & Company v. United States, 196 U.S. 375, 387, 388, 25 S.Ct. 276, 49 L.Ed. 518; Lemke v. Farmers' Grain Company, 258 U.S. 50, 55, 42 S.Ct. 244, 66 L.Ed. 458; Stafford v. Wallace, 258 U.S. 495, 519, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Board of Trade of City of Chi*544cago v. Olsen, 262 U.S. 1, 35, 43 S.Ct. 470, 67 L.Ed. 839; Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 439, 50 S.Ct. 220, 74 L.Ed. 524.

Did the defendants' transactions directly 'affect' interstate commerce so as to be subject to federal regulation? The power of Congress extends, not only to the regulation of transactions which are part of interstate commerce, but to the protection of that commerce from injury. It matters not that the injury may be due to the conduct of those engaged in intrastate operations. Thus, Congress may protect the safety of those employed in interstate transportation, 'no matter what may be the source of the dangers which threaten it.' Southern Railway Company v. United States, 222 U.S. 20, 27, 32 S.Ct. 2, 4, 56 L.Ed. 72. We said in Mondou v. New York, N.H. & H.R. Co. (Second Employers' Liability Cases), 223 U.S. 1, 51, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A.(N.S.) 44, that it is the 'effect upon interstate commerce,' not 'the source of the injury,' which is 'the criterion of congressional power.' We have held that, in dealing with common carriers engaged in both interstate and intrastate commerce, the dominant authority of Congress necessarily embraces the right to control their intrastate operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to secure the freedom of that traffic from interference or unjust discrimination and to promote the efficiency of the interstate service. Houston, E. & W.T.R. Co. v. U.S. (The Shreveport Case), 234 U.S. 342, 351, 352, 34 S.Ct. 833, 58 L.Ed. 1341; Railroad Commission of State of Wisconsin v. Chicago, Burlington & Quincy R. Co., 257 U.S. 563, 588, 42 S.Ct. 232, 66 L.Ed. 371, 22 A.L.R. 1086. And combinations and conspiracies to restrain interstate commerce, or to monopolize any part of it, are none the less within the reach of the Anti-Trust Act (15 USCA § 1 et seq.) because the conspirators seek to attain their end by means of intrastate activities. Coronado Coal Company v. United Mine Workers, 268 U.S. 295, 310, 45 S.Ct. 551, 69 L.Ed. 963; Bedford Cut Stone Company v. Journeyman Stone Cutters' Association, 274 U.S. 37, 46, 47 S.Ct. 522, 71 L.Ed. 916, 54 A.L.R. 791.

We recently had occasion, in Local 167 V. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804, to apply this principle in connection with*545 the live poultry industry. That was a suit to enjoin a conspiracy to restrain and monopolize interstate commerce in violation of the Anti-Trust Act. It was shown that marketmen, teamsters, and slaughterers (shochtim) had conspired to burden the free movement of live poultry into the metropolitan area in and about New York City. Marketmen had organized an association, had allocated retailers among themselves, and had agreed to increase prices. To accomplish their objects, large amounts of money were raised by levies upon poultry sold, men were hired to obstruct the business of dealers who resisted, wholesalers and retailers were spied upon, and by violence and other forms of intimidation were prevented from freely purchasing live poultry. Teamsters refused to handle poultry for recalcitrant marketmen, and members of the shochtim union refused to slaughter. In view of the proof of that conspiracy, we said that it was unnecessary to decide when interstate commerce ended and when intrastate commerce began. We found that the proved interference by the conspirators 'with the unloading, the transportation, the sales by marketmen to retailers, the prices charged, and the amount of profits exacted' operated 'substantially and directly to restrain and burden the untrammelled shipment and movement of the poultry,' while unquestionably it was in interstate commerce. The intrastate acts of the conspirators were included in the injunction because that was found to be necessary for the protection of interstate commerce against the attempted and illegal restraint. Id. 291 U.S. 293, pp. 297, 299, 300, 54 S.Ct. 396, 398, 78 L.Ed. 804.

The instant case is not of that sort. This is not a prosecution for a conspiracy to restrain or monopolize interstate commerce in violation of the Anti-Trust Act. Defendants have been convicted, not upon direct charges of injury to interstate commerce or of interference with persons engaged in that commerce, but of violations of certain provisions of the Live Poultry Code and of con*546spiracy to commit these violations. Interstate commerce is brought in only upon the charge that violations of these provisions—as to hours and wages of employees and local sales—'affected' interstate commerce.

In determining how far the federal government may go in controlling intrastate transactions upon the ground that they 'affect' interstate commerce, there is a necessary and well-established distinction between direct and indirect effects. The precise line can be drawn only as individual cases arise, but the distinction is clear in principle. Direct effects are illustrated by the railroad cases we have cited, as, e.g., the effect of failure to use prescribed safety appliances on railroads which are the highways of both interstate and intrastate commerce, injury to an employee engaged in interstate transportation by the negligence of an employee engaged in an intrastate movement, the fixing of rates for intrastate transportation which unjustly discriminate against interstate commerce. But where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power. If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government. Indeed, on such a theory, even the development of the state's commercial facilities would be subject to federal control. As we said in Simpson v. Shepard (Minnesota Rate Case), 230 U.S. 352, 410, 33 S.Ct. 729, 745, 57 L.Ed. 1511, 48 L.R.A. (N.S.) 1151, Ann. Cas. 1916A, 18: 'In the intimacy of commercial relations, much that is done in the superintendence of local matters may have an indirect bearing upon interstate commerce. The development of local resources and the extension of local facilities may have a very important effect upon communities less favored, and to an appreciable degree*547 alter the course of trade. The freedom of local trade may stimulate interstate commerce, while restrictive measures within the police power of the state, enacted exclusively with respect to internal business, as distinguished from interstate traffic, may in their reflex or indirect influence diminish the latter and reduce the volume of articles transported into or out of the state.' See, also, Kidd v. Pearson, 128 U.S. 1, 21, 9 S.Ct. 6, 32 L.Ed. 346; Heisler v. Thomas Colliery Co., 260 U.S. 245, 259, 260, 43 S.Ct. 83, 67 L.Ed. 237.

The distinction between direct and indirect effects has been clearly recognized in the application of the Anti-Trust Act. Where a combination or conspiracy is formed, with the intent to restrain interstate commerce or to monopolize any part of it, the violation of the statute is clear. Coronado Coal Company v. United Mine Workers, 268 U.S. 295, 310, 45 S.Ct. 551, 69 L.Ed. 963. But, where that intent is absent, and the objectives are limited to intrastate activities, the fact that there may be an indirect effect upon interstate commerce does not subject the parties to the federal statute, notwithstanding its broad provisions. This principle has frequently been applied in litigation growing out of labor disputes. United Mine Workers v. Coronado Coal Company, 259 U.S. 344, 410, 411, 42 S.Ct. 570, 66 L.Ed. 975, 27 A.L.R. 762; United Leather Workers' International Union v. Herkert, 265 U.S. 457, 464—467, 44 S.Ct. 623, 68 L.Ed. 1104, 33 A.L.R. 566; Industrial Association v. United States, 268 U.S. 64, 82, 45 S.Ct. 403, 69 L.Ed. 849; Levering & Garrigues v. Morrin, 289 U.S. 103, 107, 108, 53 S.Ct. 549, 551, 77 L.Ed. 1062. In the case last cited we quoted with approval the rule that had been stated and applied in Industrial Association v. United States, supra, after review of the decisions, as follows: 'The alleged conspiracy, and the acts here complained of, spent their intended and direct force upon a local situation—for building is as essentially local as mining, manufacturing or growing crops—and if, by resulting diminution of the commercial demand, interstate trade was curtailed either generally or in specific instances that was a fortuitous consequence so remote and indirect*548 as plainly to cause it to fall outside the reach of the Sherman Act (15 USCA §§ 1—7, 15 note).'

While these decisions related to the application of the Federal statute, and not to its constitutional validity, the distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one, essential to the maintenance of our constitutional system. Otherwise, as we have said, there would be virtually no limit to the federal power, and for all practical purposes we should have a completely centralized government. We must consider the provisions here in question in the light of this distinction.

The question of chief importance relates to the provisions of the code as to the hours and wages of those employed in defendants' slaughterhouse markets. It is plain that these requirements are imposed in order to govern the details of defendants' management of their local business. The persons employed in slaughtering and selling in local trade are not employed in interstate commerce. Their hours and wages have no direct relation to interstate commerce. The question of how many hours these employees should work and what they should be paid differs in no essential respect from similar questions in other local businesses which handle commodities brought into a state and there dealt in as a part of its internal commerce. This appears from an examination of the considerations urged by the government with respect to conditions in the poultry trade. Thus, the government argues that hours and wages affect prices; that slaughterhouse men sell at a small margin above operating costs; that labor represents 50 to 60 per cent. of these costs; that a slaughterhouse operator paying lower wages or reducing his cost by exacting long hours of work translates his saving into lower prices; that this results in demands for a cheaper grade of goods: and that the cutting*549 of prices brings about a demoralization of the price structure. Similar conditions may be adduced in relation to other businesses. The argument of the government proves too much. If the federal government may determine the wages and hours of employees in the internal commerce of a state, because of their relation to cost and prices and their indirect effect upon interstate commerce, it would seem that a similar control might be exerted over other elements of cost, also affecting prices, such as the number of employees, rents, advertising, methods of doing business, etc. All the processes of production and distribution that enter into cost could likewise be controlled. If the cost of doing an intrastate business is in itself the permitted object of federal control, the extent of the regulation of cost would be a question of discretion and not of power.

The government also makes the point that efforts to enact state legislation establishing high labor standards have been impeded by the belief that, unless similar action is taken generally, commerce will be diverted from the states adopting such standards, and that this fear of diversion has led to demands for federal legislation on the subject of wages and hours. The apparent implication is that the federal authority under the commerce clause should be deemed to extend to the establishment of rules to govern wages and hours in intrastate trade and industry generally throughout the country, thus overriding the authority of the states to deal with domestic problems arising from labor conditions in their internal commerce.

It is not the province of the Court to consider the economic advantages or disadvantages of such a centralized system. It is sufficient to say that the Federal Constitution does not provide for it. Our growth and development have called for wide use of the commerce power of the federal government in its control over the expanded activities of interstate commerce and in protecting that*550 commerce from burdens, interferences, and conspiracies to restrain and monopolize it. But the authority of the federal government may not be pushed to such an extreme as to destroy the distinction, which the commerce clause itself establishes, between commerce 'among the several States' and the internal concerns of a state. The same answer must be made to the contention that is based upon the serious economic situation which led to the passage of the Recovery Act—the fall in prices, the decline in wages and employment, and the curtailment of the market for commodities. Stress is laid upon the great importance of maintaining wage distributions which would provide the necessary stimulus in starting 'the cumulative forces making for expanding commercial activity.' Without in any way disparaging this motive, it is enough to say that the recuperative efforts of the federal government must be made in a manner consistent with the authority granted by the Constitution.

We are of the opinion that the attempt through the provisions of the code to fix the hours and wages of employees of defendants in their intrastate business was not a valid exercise of federal power.

The other violations for which defendants were convicted related to the making of local sales. Ten counts, for violation of the provision as to 'straight killing,' were for permitting customers to make 'selections of individual chickens taken from particular coops and half coops.' Whether or not this practice is good or bad for the local trade, its effect, if any, upon interstate commerce was only indirect. The same may be said of violations of the code by intrastate transactions consisting of the sale 'of an unfit chicken' and of sales which were not in accord with the ordinances of the city of New York. The requirement of reports as to prices and volumes of defendants' sales was incident to the effort to control their intrastate business.

*551In view of these conclusions, we find it unnecessary to discuss other questions which have been raised as to the validity of certain provisions of the code under the due process clause of the Fifth Amendment.

On both the grounds we have discussed, the attempted delegation of legislative power and the attempted regulation of intrastate transactions which affect interstate commerce only indirectly, we hold the code provisions here in question to be invalid and that the judgment of conviction must be reversed.

No. 854—reversed.

No. 864—affirmed.

Mr. Justice CARDOZO (concurring).

The delegated power of legislation which has found expression in this code is not canalized within banks that keep it from overflowing. It is unconfined and vagrant, if I may borrow my own words in an earlier opinion. Panama Refining Co. v. Ryan, 293 U.S. 388, 440, 55 S.Ct. 241, 79 L.Ed. 446.

This court has held that delegation may be unlawful, though the act to be performed is definite and single, if the necessity, time, and occasion of performance have been left in the end to the discretion of the delegate. Panama Refining Co. v. Ryan, supra. I thought that ruling went too far. I pointed out in an opinion that there had been 'no grant to the Executive of any roving commission to inquire into evils and then, upon discovering them, do anything he pleases.' 293 U.S. 388, at page 435, 55 S.Ct. 241, 254, 79 L.Ed. 446. Choice, though within limits, had been given him 'as to the occasion, but none whatever as to the means.' Id. Here, in the case before us, is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. Here in effect is a roving commission to inquire into evils and upon discovery correct them.

*552I have said that there is no standard, definite or even approximate, to which legislation must conform. Let me make my meaning more precise. If codes of fair competition are codes eliminating 'unfair' methods of competition ascertained upon inquiry to prevail in one industry or another, there is no unlawful delegation of legislative functions when the President is directed to inquire into such practices and denounce them when discovered. For many years a like power has been committed to the Federal Trade Commission with the approval of this court in a long series of decisions. Cf. Federal Trade Commission v. R.F. Keppel & Bro., 291 U.S. 304, 312, 54 S.Ct. 423, 78 L.Ed. 814; Federal Trade Commission v. Raladam Co., 283 U.S. 643, 648, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191; Federal Trade Commission v. Gratz, 253 U.S. 421, 40 S.Ct. 572, 64 L.Ed. 993. Delegation in such circumstances is born of the necessities of the occasion. The industries of the country are too many and diverse to make it possible for Congress, in respect of matters such as these, to legislate directly with adequate appreciation of varying conditions. Nor is the substance of the power changed because the President may act at the instance of trade or industrial associations having special knowledge of the facts. Their function is strictly advisory; it is the imprimatur of the President that begets the quality of law. Doty v. Love, 295 U.S. 64, 55 S.Ct. 558, 79 L.Ed. —-. When the task that is set before one is that of cleaning house, it is prudent as well as usual to take counsel of the dwellers.

But there is another conception of codes of fair competition, their significance and function, which leads to very different consequences, though it is one that is struggling now for recognition and acceptance. By this other conception a code is not to be restricted to the elimination of business practices that would be characterized by general acceptation as oppressive or unfair. It is to include whatever ordinances may be desirable or helpful for the well-being or prosperity of the industry*553 affected. In that view, the function of its adoption is not merely negative, but positive; the planning of improvements as well as the extirpation of abuses. What is fair, as thus conceived, is not something to be contrasted with what is unfair or fraudulent or tricky. The extension becomes as wide as the field of industrial regulation. If that conception shall prevail, anything that Congress may do within the limits of the commerce clause for the betterment of business may be done by the President upon the recommendation of a trade association by calling it a code. This is delegation running riot. No such plenitude of power is susceptible of transfer. The statute, however, aims at nothing less, as one can learn both from its terms and from the administrative practice under it. Nothing less is aimed at by the code now submitted to our scrutiny.

The code does not confine itself to the suppression of methods of competition that would be classified as unfair according to accepted business standards or accepted norms of ethics. It sets up a comprehensive body of rules to promote the welfare of the industry, if not the welfare of the nation, without reference to standards, ethical or commercial, that could be known or predicted in advance of its adoption. One of the new rules, the source of ten counts in the indictment, is aimed at an established practice, not unethical or oppressive, the practice of selective buying. Many others could be instanced as open to the same objection if the sections of the code were to be examined one by one. The process of dissection will not be traced in all its details. Enough at this time to state what it reveals. Even if the statute itself had fixed the meaning of fair competition by way of contrast with practices that are oppressive or unfair, the code outruns the bounds of the authority conferred. What is excessive is not sporadic or superficial. It is deep-seated and per*554vasive. The licit and illicit sections are so combined and welded as to be incapable of severance without destructive mutilation.

But there is another objection, far-reaching and incurable, aside from any defect of unlawful delegation.

If this code had been adopted by Congress itself, and not by the President on the advice of an industrial association, it would even then be void, unless authority to adopt it is included in the grant of power 'to regulate commerce with foreign nations, and among the several States.' United States Constitution, art. 1, § 8, cl. 3.

I find no authority in that grant for the regulation of wages and hours of labor in the intrastate transactions that make up the defendants' business. As to this feature of the case, little can be added to the opinion of the court. There is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center. A society such as ours 'is an elastic medium which transmits all tremors throughout its territory; the only question is of their size.' Per Learned Hand, J., in the court below. The law is not indifferent to considerations of degree. Activities local in their immediacy do not become interstate and national because of distant repercussions. What is near and what is distant may at times be uncertain. Cf. Board of Trade of City of Chicago v. Olsen, 262 U.S. 1, 43 S.Ct. 470, 67 L.Ed. 839. There is no penumbra of uncertainty obscuring judgment here. To find immediacy or directness here is to find it almost everywhere. If centripetal forces are to be isolated to the exclusion of the forces that oppose and counteract them, there will be an end to our federal system.

To take from this code the provisions as to wages and the hours of labor is to destroy it altogether. If a trade or an industry is so predominantly local as to be exempt*555 from regulation by the Congress in respect of matters such as these, there can be no 'code' for it at all. This is clear from the provisions of section 7(a) of the act (15 USCA § 707(a), with its explicit disclosure of the statutory scheme. Wages and the hours of labor are essential features of the plan, its very bone and sinew. There is no opportunity in such circumstances for the severance of the infected parts in the hope of saving the remainder. A code collapses utterly with bone and sinew gone.

I am authorized to state that Mr. Justice STONE joins in this opinion.

1

The full title of the Code is 'Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York.'

2

The indictment contained 60 counts, of which 27 counts were dismissed by the trial court, and on 14 counts the defendants were acquitted.

3

Act of June 16, 1933, c. 90, 48 Stat. 195, 196; 15 U.S.C. § 703 (15 USCA § 703).

4

'Codes of fair competition.

'Sec. 3. (a) Upon the application to the President by one or more trade or industrial associations or groups, the President may approve a code or codes of fair competition for the trade or industry or subdivision thereof, represented by the applicant or applicants, if the President finds (1) that such associations or groups impose no inequitable restrictions on admission to membership therein and are truly representative of such trades or industries or subdivisions thereof, and (2) that such code or codes are not designed to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate against them, and will tend to effectuate the policy of this title: Provided, That such code or codes shall not permit monopolies or monopolistic practices: Provided further, That where such code or codes affect the services and welfare of persons engaged in other steps of the economic process, nothing in this section shall deprive such persons of the right to be heard prior to approval by the President of such code or codes. The President may, as a condition of his approval of any such code, impose such conditions (including requirements for the making of reports and the keeping of accounts) for the protection of consumers, competitors, employees, and others, and in furtherance of the public interest, and may provide such exceptions to and exemptions from the provisions of such code. as the President in his discretion deems necessary to effectuate the policy herein declared.

'(b) After the President shall have approved any such code, the provisions of such code shall be the standards of fair competition for such trade or industry or subdivision thereof. Any violation of such standards in any transaction in or affecting interstate or foreign commerce shall be deemed an unfair method of competition in commerce within the meaning of the Federal Trade Commission Act, as amended (chapter 2 of this title); but nothing in this title (chapter) shall be construed to impair the powers of the Federal Trade Commission under such Act, as amended (chapter 2).

'(c) The several district courts of the United States are hereby invested with jurisdiction to prevent and restrain violations of any code of fair competition approved under this title (chapter); and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations.

'(d) Upon his own motion, or if complaint is made to the President that abuses inimical to the public interest and contrary to the policy herein declared are prevalent in any trade or industry or subdivision thereof, and if no code of fair competition therefor has theretofore been approved by the President, the President, after such public notice and hearing as he shall specify, may prescribe and approve a code of fair competition for such trade or industry or subdivision thereof, which shall have the same effect as a code of fair competition approved by the President under subsection (a) of this section. * * *

'(f) When a code of fair competition has been approved or prescribed by the President under this title (chapter), any violation of any provision thereof in any transaction in or affecting interstate or foreign commerce shall be a misdemeanor and upon conviction thereof an offender shall be fined not more than $500 for each offense, and each day such violation continues shall be deemed a separate offense.'

5

The executive order is as follows:

'Executive Order.

'Approval of Code of Fair Competition for the Live Poultry Industry of the Metropolitan Area in and about the City of New York.

'Whereas, the Secretary of Agriculture and the Administrator of the National Industrial Recovery Act having rendered their separate reports and recommendations and findings on the provisions of said code, coming within their respective jurisdictions, as set forth in the Executive Order No. 6182 of June 26, 1933, as supplemented by Executive Order No. 6207 of July 21, 1933, and Executive Order N. 6345 of October 20, 1933, as amended by Executive Order No. 6551 of January 8, 1934;

'Now, therefore, I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by title I of the National Industrial Recovery Act, approved June 16, 1933, and otherwise, do hereby find that:

'1. An application has been duly made, pursuant to and in full compliance with the provisions of title I of the National Industrial Recovery Act, approved June 16, 1933, for my approval of a code of fair competition for the live poultry industry in the metropolitan area in and about the City of New York; and

'2. Due notice and opportunity for hearings to interested parties have been given pursuant to the provisions of the act and regulations thereunder; and,

'3. Hearings have been held upon said code, pursuant to such notice and pursuant to the pertinent provisions of the act and regulations thereunder; and

'4. Said code of fair competition constitutes a code of fair competition, as contemplated by the act and complies in all respects with the pertinent provisions of the act, including clauses (1) and (2) of subsection (a) of section 3 of title I of the act; and

'5. It appears, after due consideration, that said code of fair competition will tend to effectuate the policy of Congress as declared in section 1 of title I of the act.

'Now, therefore, I, Franklin D. Roosevelt, President of the United States, pursuant to the authority vested in me by title I of the National Industrial Recovery Act, approved June 16, 1933, and otherwise, do hereby approve said Code of Fair Competition for the Live Poultry Industry in the Metropolitan Area in and about the City of New York.

'Franklin D. Roosevelt,

'President of the United States.

'The White House,

'April 13, 1934.'

6

The Administrator for Industrial Recovery stated in his report that the Code had been sponsored by trade associations representing about 350 wholesale firms, 150 retail shops, and 21 commission agencies; that these associations represented about 90 per cent. of the live poultry industry by numbers and volume of business; and that the industry as defined in the code supplies the consuming public with practically all the live poultry coming into the metropolitan area from forty-one states and transacted an aggregate annual business of approximately $90,000,000. He further said that about 1,610 employees were engaged in the industry; that it had suffered severely on account of the prevailing economic conditions and because of unfair methods of competition and the abuses that had developed as a result of the 'uncontrolled methods of doing business'; and that these conditions had reduced the number of employees by approximately 40 per cent. He added that the report of the Research and Planning Division indicated that the code would bring about an increase in wages of about 20 per cent. in this industry and an increase in employment of 19.2 per cent.

7

The prohibition in the code (article VII, § 14) was as follows: 'Straight Killing.—The use, in the wholesale slaughtering of poultry, of any method of slaughtering other than 'straight killing' or killing on the basis of official grade. Purchasers may, however, make selection of a half coop, coop, or coops, but shall not have the right to make any selection of particular birds.'

8

See Ex parte Milligan, 4 Wall. 2, 120, 121, 18 L.Ed. 281; Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481.

9

That section (15 USCA § 701), under the heading 'Declaration of Policy,' is as follows: 'Section 1. A national emergency productive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people, is hereby declared to exist. It is hereby declared to be the policy of Congress to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof; and to provide for the general welfare by promoting the organization of industry for the purpose of co-operative action among trade groups, to induce and maintain united action of labor and management under adequate governmental sanctions and supervision, to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.'

10

See cases collected in Nims on Unfair Competition and Trade-Marks, c. I, § 4, p. 19, and chapter XIX.

11

Act of September 26, 1914, c. 311, 38 Stat. 717, 719, 720 (section 5 (15 USCA § 45)).

12

The Tariff Act of 1930 (section 337, 46 Stat. 703 (19 USCA § 1337)), like the Tariff Act of 1922 (section 316, 42 Stat. 943 (19 USCA § 174 et seq.)), employs the expressions 'unfair methods of competition' and 'unfair acts' in the importation of articles into the United States, and in their sale, 'the effect or tendency of which is to destroy or substantially injure an industry, efficiently and economically operated, in the United States, or to prevent the establishment of such an industry, or to restrain or monopolize trade and commerce in the United States.' Provision is made for investigation and findings by the Tariff Commission, for appeals upon questions of law to the United States Court of Customs and Patent Appeals, and for ultimate action by the President when the existence of any 'such unfair method or act' is established to his satisfaction.

13

See note 9.

14

Act of July 26, 1866, c. 262, 14 Stat. 251; Jackson v. Roby, 109 U.S. 440, 441, 3 S.Ct. 301, 27 L.Ed. 990; Erhardt v. Boaro, 113 U.S. 527, 535, 5 S.Ct. 560, 28 L.Ed. 1113; Butte City Water Co. v. Baker, 196 U.S. 119, 126, 25 S.Ct. 211, 49 L.Ed. 409.

15

Act of March 2, 1893, c. 196, 27 Stat. 531 (45 USCA § 1 et seq.); St. Louis, Iron Mountain & S. Railway Co. v. Taylor, 210 U.S. 281, 286, 28 S.Ct. 616, 52 L.Ed. 1061.

16

Act of February 23, 1927, c. 169, 44 Stat. 1162, as amended by the Act of March 28, 1928, c. 263, 45 Stat. 373.

17

Act of September 21, 1922, c. 356, title 3, § 315, 42 Stat. 858, 941 (19 USCA § 154 et seq.).

[1227] KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, GINSBURG, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.

Curtis E. Gannon, for Petitioners.

Thomas H. Dupree, Jr., Washington, DC, for Respondent.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for Petitioners.

Louis P. Warchot, Daniel Saphire, Association of American Railroads, Washington, DC, Thomas H. Dupree, Jr., Counsel of Record, Amir C. Tayrani, Lucas C. Townsend, Gibson, Dunn & Crutcher LLP, Washington, DC, for Respondent.

[1228] Kathryn B. Thomson, General Counsel, Paul M. Geier, Assistant General Counsel for Litigation, Peter J. Plocki, Deputy Assistant General Counsel for Litigation, Joy K. Park, Trial Attorney, Department of Transportation, Washington, DC, Melissa Porter, Chief Counsel, Zeb G. Schorr, Deputy Assistant Chief Counsel, Federal Railroad Administration, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Curtis E. Gannon, Assistant to the Solicitor General, Mark B. Stern, Michael S. Raab, Daniel Tenny, Patrick G. Nemeroff, Attorneys, Department of Justice, Washington, DC, for Petitioners.

Justice KENNEDY delivered the opinion of the Court.

In 1970, Congress created the National Railroad Passenger Corporation, most often known as Amtrak. Later, Congress granted Amtrak and the Federal Railroad Administration (FRA) joint authority to issue "metrics and standards" that address the performance and scheduling of passenger railroad services. Alleging that the metrics and standards have substantial and adverse effects upon its members' freight services, respondent — the Association of American Railroads — filed this suit to challenge their validity. The defendants below, petitioners here, are the Department of Transportation, the FRA, and two individuals sued in their official capacity.

Respondent alleges the metrics and standards must be invalidated on the ground that Amtrak is a private entity and it was therefore unconstitutional for Congress to allow and direct it to exercise joint authority in their issuance. This argument rests on the Fifth Amendment Due Process Clause and the constitutional provisions regarding separation of powers. The District Court rejected both of respondent's claims. The Court of Appeals for the District of Columbia Circuit reversed, finding that, for purposes of this dispute, Amtrak is a private entity and that Congress violated nondelegation principles in its grant of joint authority to Amtrak and the FRA. On that premise the Court of Appeals invalidated the metrics and standards.

Having granted the petition for writ of certiorari, 573 U.S. ___, 134 S.Ct. 2865, 189 L.Ed.2d 805 (2014), this Court now holds that, for purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. Although Amtrak's actions here were governmental, substantial questions respecting the lawfulness of the metrics and standards — including questions implicating the Constitution's structural separation of powers and the Appointments Clause, U.S. Const., Art. II, § 2, cl. 2 — may still remain in the case. As those matters have not yet been passed upon by the Court of Appeals, this case is remanded.

I

A

Amtrak is a corporation established and authorized by a detailed federal statute enacted by Congress for no less a purpose than to preserve passenger services and routes on our Nation's railroads. See Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 383-384, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995); National Railroad Passenger Corporation v. Atchison, T. & S.F.R. Co., 470 U.S. 451, 453-457, 105 S.Ct. 1441, 84 L.Ed.2d 432 (1985); [1229] see also Rail Passenger Service Act of 1970, 84 Stat. 1328. Congress recognized that Amtrak, of necessity, must rely for most of its operations on track systems owned by the freight railroads. So, as a condition of relief from their common-carrier duties, Congress required freight railroads to allow Amtrak to use their tracks and facilities at rates agreed to by the parties — or in the event of disagreement to be set by the Interstate Commerce Commission (ICC). See 45 U.S.C. §§ 561, 562 (1970 ed.). The Surface Transportation Board (STB) now occupies the dispute-resolution role originally assigned to the ICC. See 49 U.S.C. § 24308(a) (2012 ed.). Since 1973, Amtrak has received a statutory preference over freight transportation in using rail lines, junctions, and crossings. See § 24308(c).

The metrics and standards at issue here are the result of a further and more recent enactment. Concerned by poor service, unreliability, and delays resulting from freight traffic congestion, Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. See 122 Stat. 4907. Section 207(a) of the PRIIA provides for the creation of the metrics and standards:

"Within 180 days after the date of enactment of this Act, the Federal Railroad Administration and Amtrak shall jointly, in consultation with the Surface Transportation Board, rail carriers over whose rail lines Amtrak trains operate, States, Amtrak employees, nonprofit employee organizations representing Amtrak employees, and groups representing Amtrak passengers, as appropriate, develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations, including cost recovery, on-time performance and minutes of delay, ridership, on-board services, stations, facilities, equipment, and other services." Id., at 4916.

Section 207(d) of the PRIIA further provides:

"If the development of the metrics and standards is not completed within the 180-day period required by subsection (a), any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration." Id., at 4917.

The PRIIA specifies that the metrics and standards created under § 207(a) are to be used for a variety of purposes. Section 207(b) requires the FRA to "publish a quarterly report on the performance and service quality of intercity passenger train operations" addressing the specific elements to be measured by the metrics and standards. Id., at 4916-4917. Section 207(c) provides that, "[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate the metrics and standards developed under subsection (a) into their access and service agreements." Id., at 4917. And § 222(a) obliges Amtrak, within one year after the metrics and standards are established, to "develop and implement a plan to improve on-board service pursuant to the metrics and standards for such service developed under [§ 207(a) ]." Id., at 4932.

Under § 213(a) of the PRIIA, the metrics and standards also may play a role in prompting investigations by the STB and in subsequent enforcement actions. For instance, "[i]f the on-time performance of any intercity passenger train averages less than 80 percent for any 2 consecutive calendar quarters," the STB may initiate an investigation "to determine whether and to what extent delays ... are due to causes that could reasonably be addressed ... by [1230] Amtrak or other intercity passenger rail operators." Id., at 4925-4926. While conducting an investigation under § 213(a), the STB "has authority to review the accuracy of the train performance data and the extent to which scheduling and congestion contribute to delays" and shall "obtain information from all parties involved and identify reasonable measures and make recommendations to improve the service, quality, and on-time performance of the train." Id., at 4926. Following an investigation, the STB may award damages if it "determines that delays or failures to achieve minimum standards ... are attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation." Ibid. The STB is further empowered to "order the host rail carrier to remit" damages "to Amtrak or to an entity for which Amtrak operates intercity passenger rail service." Ibid.

B

In March 2009, Amtrak and the FRA published a notice in the Federal Register inviting comments on a draft version of the metrics and standards. App. 75-76. The final version of the metrics and standards was issued jointly by Amtrak and the FRA in May 2010. Id., at 129-144. The metrics and standards address, among other matters, Amtrak's financial performance, its scores on consumer satisfaction surveys, and the percentage of passenger-trips to and from underserved communities.

Of most importance for this case, the metrics and standards also address Amtrak's on-time performance and train delays caused by host railroads. The standards associated with the on-time performance metrics require on-time performance by Amtrak trains at least 80% to 95% of the time for each route, depending on the route and year. Id., at 133-135. With respect to "host-responsible delays" — that is to say, delays attributed to the railroads along which Amtrak trains travel — the metrics and standards provide that "[d]elays must not be more than 900 minutes per 10,000 Train-Miles." Id., at 138. Amtrak conductors determine responsibility for particular delays. Ibid., n. 23.

In the District Court for the District of Columbia, respondent alleged injury to its members from being required to modify their rail operations, which mostly involve freight traffic, to satisfy the metrics and standards. Respondent claimed that § 207 "violates the nondelegation doctrine and the separation of powers principle by placing legislative and rulemaking authority in the hands of a private entity [Amtrak] that participates in the very industry it is supposed to regulate." Id., at 176-177, Complaint ¶ 51. Respondent also asserted that § 207 violates the Fifth Amendment Due Process Clause by "[v]esting the coercive power of the government" in Amtrak, an "interested private part[y]." Id., at 177, ¶¶ 53-54. In its prayer for relief respondent sought, among other remedies, a declaration of § 207's unconstitutionality and invalidation of the metrics and standards. Id., at 177.

The District Court granted summary judgment to petitioners on both claims. See 865 F.Supp.2d 22 (D.C.2012). Without deciding whether Amtrak must be deemed private or governmental, it rejected respondent's nondelegation argument on the ground that the FRA, the STB, and the political branches exercised sufficient control over promulgation and enforcement of the metrics and standards so that § 207 is constitutional. See id., at 35.

The Court of Appeals for the District of Columbia Circuit reversed the judgment of the District Court as to the nondelegation and separation of powers claim, reasoning [1231] in central part that because "Amtrak is a private corporation with respect to Congress's power to delegate ... authority," it cannot constitutionally be granted the "regulatory power prescribed in § 207." 721 F.3d 666, 677 (2013). The Court of Appeals did not reach respondent's due process claim. See ibid.

II

In holding that Congress may not delegate to Amtrak the joint authority to issue the metrics and standards — authority it described as "regulatory power," ibid. — the Court of Appeals concluded Amtrak is a private entity for purposes of determining its status when considering the constitutionality of its actions in the instant dispute. That court's analysis treated as controlling Congress' statutory command that Amtrak "`is not a department, agency, or instrumentality of the United States Government.'" Id., at 675 (quoting 49 U.S.C. § 24301(a)(3)). The Court of Appeals also relied on Congress' pronouncement that Amtrak "`shall be operated and managed as a for-profit corporation.'" 721 F.3d, at 675 (quoting § 24301(a)(2)); see also id., at 677 ("Though the federal government's involvement in Amtrak is considerable, Congress has both designated it a private corporation and instructed that it be managed so as to maximize profit. In deciding Amtrak's status for purposes of congressional delegations, these declarations are dispositive"). Proceeding from this premise, the Court of Appeals concluded it was impermissible for Congress to "delegate regulatory authority to a private entity." Id., at 670; see also ibid. (holding Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160 (1936), prohibits any such delegation of authority).

That premise, however, was erroneous. Congressional pronouncements, though instructive as to matters within Congress' authority to address, see, e.g., United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 491-492 (C.A.D.C. 2004) (Roberts, J.), are not dispositive of Amtrak's status as a governmental entity for purposes of separation of powers analysis under the Constitution. And an independent inquiry into Amtrak's status under the Constitution reveals the Court of Appeals' premise was flawed.

It is appropriate to begin the analysis with Amtrak's ownership and corporate structure. The Secretary of Transportation holds all of Amtrak's preferred stock and most of its common stock. Amtrak's Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate. 49 U.S.C. § 24302(a)(1). These eight Board members, in turn, select Amtrak's president. § 24302(a)(1)(B); § 24303(a). Amtrak's Board members are subject to salary limits set by Congress, § 24303(b); and the Executive Branch has concluded that all appointed Board members are removable by the President without cause, see 27 Op. Atty. Gen. 163 (2003).

Under further statutory provisions, Amtrak's Board members must possess certain qualifications. Congress has directed that the President make appointments based on an individual's prior experience in the transportation industry, § 24302(a)(1)(C), and has provided that not more than five of the seven appointed Board members be from the same political party, § 24302(a)(3). In selecting Amtrak's Board members, moreover, the President must consult with leaders of both parties in both Houses of Congress in order to "provide adequate and balanced representation of the major geographic regions [1232] of the United States served by Amtrak." § 24302(a)(2).

In addition to controlling Amtrak's stock and Board of Directors the political branches exercise substantial, statutorily mandated supervision over Amtrak's priorities and operations. Amtrak must submit numerous annual reports to Congress and the President, detailing such information as route-specific ridership and on-time performance. § 24315. The Freedom of Information Act applies to Amtrak in any year in which it receives a federal subsidy, 5 U.S.C. § 552, which thus far has been every year of its existence. Pursuant to its status under the Inspector General Act of 1978 as a "`designated Federal entity,'" 5 U.S.C.App. § 8G(a)(2), p. 521, Amtrak must maintain an inspector general, much like governmental agencies such as the Federal Communications Commission and the Securities and Exchange Commission. Furthermore, Congress conducts frequent oversight hearings into Amtrak's budget, routes, and prices. See, e.g., Hearing on Reviewing Alternatives to Amtrak's Annual Losses in Food and Beverage Service before the Subcommittee on Government Operations of the House Committee on Oversight and Government Reform, 113th Cong., 1st Sess., 5 (2013) (statement of Thomas J. Hall, chief of customer service, Amtrak); Hearing on Amtrak's Fiscal Year 2014 Budget: The Starting Point for Reauthorization before the Subcommittee on Railroads, Pipelines, and Hazardous Materials of the House Committee on Transportation and Infrastructure, 113th Cong., 1st Sess., p. 6 (2013) (statement of Joseph H. Boardman, president and chief executive officer, Amtrak).

It is significant that, rather than advancing its own private economic interests, Amtrak is required to pursue numerous, additional goals defined by statute. To take a few examples: Amtrak must "provide efficient and effective intercity passenger rail mobility," 49 U.S.C. § 24101(b); "minimize Government subsidies," § 24101(d); provide reduced fares to the disabled and elderly, § 24307(a); and ensure mobility in times of national disaster, § 24101(c)(9).

In addition to directing Amtrak to serve these broad public objectives, Congress has mandated certain aspects of Amtrak's day-to-day operations. Amtrak must maintain a route between Louisiana and Florida. § 24101(c)(6). When making improvements to the Northeast corridor, Amtrak must apply seven considerations in a specified order of priority. § 24902(b). And when Amtrak purchases materials worth more than $1 million, these materials must be mined or produced in the United States, or manufactured substantially from components that are mined, produced, or manufactured in the United States, unless the Secretary of Transportation grants an exemption. § 24305(f).

Finally, Amtrak is also dependent on federal financial support. In its first 43 years of operation, Amtrak has received more than $41 billion in federal subsidies. In recent years these subsidies have exceeded $1 billion annually. See Brief for Petitioners 5, and n. 2, 46.

Given the combination of these unique features and its significant ties to the Government, Amtrak is not an autonomous private enterprise. Among other important considerations, its priorities, operations, and decisions are extensively supervised and substantially funded by the political branches. A majority of its Board is appointed by the President and confirmed by the Senate and is understood by the Executive to be removable by the President at will. Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit. Thus, in its joint [1233] issuance of the metrics and standards with the FRA, Amtrak acted as a governmental entity for purposes of the Constitution's separation of powers provisions. And that exercise of governmental power must be consistent with the design and requirements of the Constitution, including those provisions relating to the separation of powers.

Respondent urges that Amtrak cannot be deemed a governmental entity in this respect. Like the Court of Appeals, it relies principally on the statutory directives that Amtrak "shall be operated and managed as a for profit corporation" and "is not a department, agency, or instrumentality of the United States Government." §§ 24301(a)(2)-(3). In light of that statutory language, respondent asserts, Amtrak cannot exercise the joint authority entrusted to it and the FRA by § 207(a).

On that point this Court's decision in Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), provides necessary instruction. In Lebron, Amtrak prohibited an artist from installing a politically controversial display in New York City's Penn Station. The artist sued Amtrak, alleging a violation of his First Amendment rights. In response Amtrak asserted that it was not a governmental entity, explaining that "its charter's disclaimer of agency status prevent[ed] it from being considered a Government entity." Id., at 392, 115 S.Ct. 961. The Court rejected this contention, holding "it is not for Congress to make the final determination of Amtrak's status as a Government entity for purposes of determining the constitutional rights of citizens affected by its actions." Ibid. To hold otherwise would allow the Government "to evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form." Id., at 397, 115 S.Ct. 961. Noting that Amtrak "is established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees," id., at 398, 115 S.Ct. 961, and that the Government exerts its control over Amtrak "not as a creditor but as a policymaker," the Court held Amtrak "is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution." Id., at 394, 399, 115 S.Ct. 961.

Lebron teaches that, for purposes of Amtrak's status as a federal actor or instrumentality under the Constitution, the practical reality of federal control and supervision prevails over Congress' disclaimer of Amtrak's governmental status. Lebron involved a First Amendment question, while in this case the challenge is to Amtrak's joint authority to issue the metrics and standards. But "[t]he structural principles secured by the separation of powers protect the individual as well." Bond v. United States, 564 U.S. ___, ___, 131 S.Ct. 2355, 2365, 180 L.Ed.2d 269 (2011). Treating Amtrak as governmental for these purposes, moreover, is not an unbridled grant of authority to an unaccountable actor. The political branches created Amtrak, control its Board, define its mission, specify many of its day-to-day operations, have imposed substantial transparency and accountability mechanisms, and, for all practical purposes, set and supervise its annual budget. Accordingly, the Court holds that Amtrak is a governmental entity, not a private one, for purposes of determining the constitutional issues presented in this case.

III

Because the Court of Appeals' decision was based on the flawed premise that Amtrak should be treated as a private [1234] entity, that opinion is now vacated. On remand, the Court of Appeals, after identifying the issues that are properly preserved and before it, will then have the instruction of the analysis set forth here. Respondent argues that the selection of Amtrak's president, who is appointed "not by the President ... but by the other eight Board Members," "call[s] into question Amtrak's structure under the Appointments Clause," Brief for Respondent 42; that § 207(d)'s arbitrator provision "is a plain violation of the nondelegation principle" and the Appointments Clause requiring invalidation of § 207(a), id., at 26; and that Congress violated the Due Process Clause by "giv[ing] a federally chartered, nominally private, for-profit corporation regulatory authority over its own industry," id., at 43. Petitioners, in turn, contend that "the metrics and standards do not reflect the exercise of `rulemaking' authority or permit Amtrak to `regulate other private entities,'" and thus do not raise nondelegation concerns. Reply Brief 5 (internal citation omitted). Because "[o]urs is a court of final review and not first view," Zivotofsky v. Clinton, 566 U.S. ___, ___, 132 S.Ct. 1421, 1430, 182 L.Ed.2d 423 (2012) (internal quotation marks omitted), those issues — to the extent they are properly before the Court of Appeals — should be addressed in the first instance on remand.

The judgment of the Court of Appeals for the District of Columbia Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice ALITO, concurring.

I entirely agree with the Court that Amtrak is "a federal actor or instrumentality," as far as the Constitution is concerned. Ante, at 1233. "Amtrak was created by the Government, is controlled by the Government, and operates for the Government's benefit." Ante, at 1232. The Government even "specif[ies] many of its day-to-day operations" and "for all practical purposes, set[s] and supervise[s] its annual budget." Ante, at 1233. The District of Columbia Circuit understandably heeded 49 U.S.C. § 24301(a)(3), which proclaims that Amtrak "is not a department, agency, or instrumentality of the United States Government," but this statutory label cannot control for constitutional purposes. (Emphasis added). I therefore join the Court's opinion in full. I write separately to discuss what follows from our judgment.

I

This case, on its face, may seem to involve technical issues, but in discussing trains, tracks, metrics, and standards, a vital constitutional principle must not be forgotten: Liberty requires accountability.

When citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences. One way the Government can regulate without accountability is by passing off a Government operation as an independent private concern. Given this incentive to regulate without saying so, everyone should pay close attention when Congress "sponsor[s] corporations that it specifically designate[s] not to be agencies or establishments of the United States Government." Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 390, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995).

Recognition that Amtrak is part of the Federal Government raises a host of constitutional questions.

II

I begin with something that may seem mundane on its face but that has a significant [1235] relationship to the principle of accountability. Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See Art. VI, cl. 3 ("[A]ll executive and judicial Officers ... shall be bound by Oath or Affirmation, to support this Constitution"); Art. II, § 3, cl. 6 (The President "shall Commission all the Officers of the United States"). There is good reason to think that those who have not sworn an oath cannot exercise significant authority of the United States. See 14 Op. Atty. Gen. 406, 408 (1874) ("[A] Representative... does not become a member of the House until he takes the oath of office"); 15 Op. Atty. Gen. 280, 281 (1877) (similar).^[1] And this Court certainly has never treated a commission from the President as a mere wall ornament. See, e.g., Marbury v. Madison, 1 Cranch 137, 156, 2 L.Ed. 60 (1803); see also id., at 179 (noting the importance of an oath).

Both the Oath and Commission Clauses confirm an important point: Those who exercise the power of Government are set apart from ordinary citizens. Because they exercise greater power, they are subject to special restraints. There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.

Here, respondent tells the Court that "Amtrak's board members do not take an oath of office to uphold the Constitution, as do Article II officers vested with rulemaking authority." Brief for Respondent 47. The Government says not a word in response. Perhaps there is an answer. The rule, however, is clear. Because Amtrak is the Government, ante, at 1233, those who run it need to satisfy basic constitutional requirements.

III

I turn next to the Passenger Rail Investment and Improvement Act of 2008's (PRIIA) arbitration provision. 122 Stat. 4907. Section 207(a) of the PRIIA provides that "the Federal Railroad Administration [(FRA)] and Amtrak shall jointly... develop new or improve existing metrics and minimum standards for measuring the performance and service quality of intercity passenger train operations." Id., at 4916. In addition, § 207(c) commands that "[t]o the extent practicable, Amtrak and its host rail carriers shall incorporate [those] metrics and standards ... into their access and service agreements." Under § 213(a) of the PRIIA, moreover, "the metrics and standards also may play a role in prompting investigations by the [Surface Transportation Board (STB)] and in subsequent enforcement actions." Ante, at 1229.

This scheme is obviously regulatory. Section 207 provides that Amtrak and the FRA "shall jointly" create new standards, cf. e.g., 12 U.S.C. § 1831m(g)(4)(B) ("The appropriate Federal banking agencies shall jointly issue rules of practice to implement this paragraph"), and that Amtrak and private rail carriers "shall incorporate" those standards into their agreements whenever "practicable," cf. e.g., BP America Production Co. v. Burton, 549 U.S. 84, 88, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006) (characterizing a command to "`audit and reconcile, to the extent practicable, all current and past lease accounts'" as creating "duties" for the Secretary of the Interior (quoting 30 U.S.C. § 1711(c)(1))). The fact that private rail carriers sometimes may be required by federal law to [1236] include the metrics and standards in their contracts by itself makes this a regulatory scheme.

"As is often the case in administrative law," moreover, "the metrics and standards lend definite regulatory force to an otherwise broad statutory mandate." 721 F.3d 666, 672 (C.A.D.C.2013). Here, though the nexus between regulation, statutory mandate, and penalty is not direct (for, as the Government explains, there is a pre-existing requirement that railroads give preference to Amtrak, see Brief for Petitioners 31-32 (citing 49 U.S.C. §§ 24308(c), (f))), the metrics and standards inherently have a "coercive effect," Bennett v. Spear, 520 U.S. 154, 169, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), on private conduct. Even the United States concedes, with understatement, that there is "perhaps some incentivizing effect associated with the metrics and standards." Brief for Petitioners 30. Because obedience to the metrics and standards materially reduces the risk of liability, railroads face powerful incentives to obey. See Bennett, supra, at 169-171, 117 S.Ct. 1154. That is regulatory power.

The language from § 207 quoted thus far should raise red flags. In one statute, Congress says Amtrak is not an "agency." 49 U.S.C. § 24301(a)(3). But then Congress commands Amtrak to act like an agency, with effects on private rail carriers. No wonder the D.C. Circuit ruled as it did.

The oddity continues, however. Section 207(d) of the PRIIA also provides that if the FRA and Amtrak cannot agree about what the regulatory standards should say, then "any party involved in the development of those standards may petition the Surface Transportation Board to appoint an arbitrator to assist the parties in resolving their disputes through binding arbitration." 122 Stat. 4917. The statute says nothing more about this "binding arbitration," including who the arbitrator should be.

Looking to Congress' use of the word "arbitrator," respondent argues that because the arbitrator can be a private person, this provision by itself violates the private nondelegation doctrine. The United States, for its part, urges the Court to read the term "arbitrator" to mean "public arbitrator" in the interests of constitutional avoidance.

No one disputes, however, that the arbitration provision is fair game for challenge, even though no arbitration occurred. The obvious purpose of the arbitration provision was to force Amtrak and the FRA to compromise, or else a third party would make the decision for them. The D.C. Circuit is correct that when Congress enacts a compromise-forcing mechanism, it is no good to say that the mechanism cannot be challenged because the parties compromised. See 721 F.3d, at 674. "[S]tack[ing] the deck in favor of compromise" was the whole point. Ibid. Unsurprisingly, this Court has upheld standing to bring a separation-of-powers challenge in comparable circumstances. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 264-265, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) ("[T]his `personal injury' to respondents is `fairly traceable' to the Board of Review's veto power because knowledge that the master plan was subject to the veto power undoubtedly influenced MWAA's Board of Directors" (emphasis added)); see also Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 512, n. 12, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) ("We cannot assume ... that the Chairman would have made the same appointments acting alone").

[1237] As to the merits of this arbitration provision, I agree with the parties: If the arbitrator can be a private person, this law is unconstitutional. Even the United States accepts that Congress "cannot delegate regulatory authority to a private entity." 721 F.3d, at 670. Indeed, Congress, vested with enumerated "legislative Powers," Art. I, § 1, cannot delegate its "exclusively legislative" authority at all. Wayman v. Southard, 10 Wheat. 1, 42-43, 6 L.Ed. 253 (1825) (Marshall, C.J.). The Court has invalidated statutes for that very reason. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); see also Mistretta v. United States, 488 U.S. 361, 373, n. 7, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (citing, inter alia, Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 646, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980)).

The principle that Congress cannot delegate away its vested powers exists to protect liberty. Our Constitution, by careful design, prescribes a process for making law, and within that process there are many accountability checkpoints. See INS v. Chadha, 462 U.S. 919, 959, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). It would dash the whole scheme if Congress could give its power away to an entity that is not constrained by those checkpoints. The Constitution's deliberative process was viewed by the Framers as a valuable feature, see, e.g., Manning, Lawmaking Made Easy, 10 Green Bag 2d 202 (2007) ("[B]icameralism and presentment make lawmaking difficult by design" (citing, inter alia, The Federalist No. 62, p. 378 (J. Madison), and No. 63, at 443-444 (A. Hamilton))), not something to be lamented and evaded.

Of course, this Court has "`almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.'" Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 474-475, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (quoting Mistretta, supra, at 416, 109 S.Ct. 647 (SCALIA, J., dissenting)). But the inherent difficulty of line-drawing is no excuse for not enforcing the Constitution. Rather, the formal reason why the Court does not enforce the nondelegation doctrine with more vigilance is that the other branches of Government have vested powers of their own that can be used in ways that resemble lawmaking. See, e.g., Arlington v. FCC, 569 U.S. ___, ___-___, n. 4, 133 S.Ct. 1863, 1873, n. 4, ___ L.Ed.2d ___ (2013) (explaining that agency rulemakings "are exercises of — indeed, under our constitutional structure they must be exercises of — the `executive Power'" (quoting Art. II, § 1, cl. 1)). Even so, "the citizen confronting thousands of pages of regulations — promulgated by an agency directed by Congress to regulate, say, `in the public interest' — can perhaps be excused for thinking that it is the agency really doing the legislating." 569 U.S., at ___-___, 133 S.Ct., at 1879 (ROBERTS, C.J., dissenting).

When it comes to private entities, however, there is not even a fig leaf of constitutional justification. Private entities are not vested with "legislative Powers." Art. I, § 1. Nor are they vested with the "executive Power," Art. II, § 1, cl. 1, which belongs to the President. Indeed, it raises "[d]ifficult and fundamental questions" about "the delegation of Executive power" when Congress authorizes citizen suits. Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 197, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (KENNEDY, J., concurring). A citizen suit to enforce existing law, however, [1238] is nothing compared to delegated power to create new law. By any measure, handing off regulatory power to a private entity is "legislative delegation in its most obnoxious form." Carter v. Carter Coal Co., 298 U.S. 238, 311, 56 S.Ct. 855, 80 L.Ed. 1160 (1936).

For these reasons, it is hard to imagine how delegating "binding" tie-breaking authority to a private arbitrator to resolve a dispute between Amtrak and the FRA could be constitutional. No private arbitrator can promulgate binding metrics and standards for the railroad industry. Thus, if the term "arbitrator" refers to a private arbitrator, or even the possibility of a private arbitrator, the Constitution is violated. See 721 F.3d, at 674 ("[T]hat the recipients of illicitly delegated authority opted not to make use of it is no antidote. It is Congress's decision to delegate that is unconstitutional" (citing Whitman, supra, at 473, 121 S.Ct. 903)).

As I read the Government's briefing, it does not dispute any of this (other than my characterization of the PRIIA as regulatory, which it surely is). Rather than trying to defend a private arbitrator, the Government argues that the Court, for reasons of constitutional avoidance, should read the word "arbitrator" to mean "public arbitrator." The Government's argument, however, lurches into a new problem: Constitutional avoidance works only if the statute is susceptible to an alternative reading and that such an alternative reading would itself be constitutional.

Here, the Government's argument that the word "arbitrator" does not mean "private arbitrator" is in some tension with the ordinary meaning of the word. Although Government arbitrators are not unheard of, we usually think of arbitration as a form of "private dispute resolution." See, e.g., Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., 559 U.S. 662, 685, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010).

Likewise, the appointment of a public arbitrator here would raise serious questions under the Appointments Clause. Unless an "inferior Office[r]" is at issue, Article II of the Constitution demands that the President appoint all "Officers of the United States" with the Senate's advice and consent. Art. II, § 2, cl. 2. This provision ensures that those who exercise the power of the United States are accountable to the President, who himself is accountable to the people. See Free Enterprise Fund, 561 U.S., at 497-498, 130 S.Ct. 3138 (citing The Federalist No. 72, p. 487 (J. Cooke ed. 1961) (A. Hamilton)). The Court has held that someone "who exercis[es] significant authority pursuant to the laws of the United States" is an "Officer," Buckley v. Valeo, 424 U.S. 1, 126, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), and further that an officer who acts without supervision must be a principal officer, see Edmond v. United States, 520 U.S. 651, 663, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) ("[W]e think it evident that `inferior officers' are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate"). While some officers may be principal even if they have a supervisor, it is common ground that an officer without a supervisor must be principal. See id., at 667, 117 S.Ct. 1573 (Souter, J., concurring in part and concurring in judgment).

Here, even under the Government's public-arbitrator theory, it looks like the arbitrator would be making law without supervision — again, it is "binding arbitration." Nothing suggests that those words mean anything other than what they say. This means that an arbitrator could set the metrics and standards that "shall" become [1239] part of a private railroad's contracts with Amtrak whenever "practicable." As to that "binding" decision, who is the supervisor? Inferior officers can do many things, but nothing final should appear in the Federal Register unless a Presidential appointee has at least signed off on it. See 75 Fed.Reg. 26839 (2010) (placing the metrics and standards in the Federal Register); Edmond, supra, at 665, 117 S.Ct. 1573.

IV

Finally, the Board of Amtrak, and, in particular, Amtrak's president, also poses difficult constitutional problems. As the Court observes, "Amtrak's Board of Directors is composed of nine members, one of whom is the Secretary of Transportation. Seven other Board members are appointed by the President and confirmed by the Senate. These eight Board members, in turn, select Amtrak's president." Ante, at 1231 (citation omitted). In other words, unlike everyone else on the Board, Amtrak's president has not been appointed by the President and confirmed by the Senate.

As explained above, accountability demands that principal officers be appointed by the President. See Art. II, § 2, cl. 2. The President, after all, must have "the general administrative control of those executing the laws," Myers v. United States, 272 U.S. 52, 164, 47 S.Ct. 21, 71 L.Ed. 160 (1926), and this principle applies with special force to those who can "exercis[e] significant authority" without direct supervision, Buckley, supra, at 126, 96 S.Ct. 612; see also Edmond, supra, at 663, 117 S.Ct. 1573. Unsurprisingly then, the United States defends the non-Presidential appointment of Amtrak's president on the ground that the Amtrak president is merely an inferior officer. Given Article II, for the Government to argue anything else would be surrender.

This argument, however, is problematic. Granted, a multimember body may head an agency. See Free Enterprise Fund, supra, at 512-513, 130 S.Ct. 3138. But those who head agencies must be principal officers. See Edmond, supra, at 663, 117 S.Ct. 1573. It would seem to follow that because agency heads must be principal officers, every member of a multimember body heading an agency must also be a principal officer. After all, every member of a multimember body could cast the deciding vote with respect to a particular decision. One would think that anyone who has the unilateral authority to tip a final decision one way or the other cannot be an inferior officer.

The Government's response is tucked away in a footnote. It contends that because Amtrak's president serves at the pleasure of the other Board members, he is only an inferior officer. See Reply Brief for Petitioners 14, n. 6. But the Government does not argue that the president of Amtrak cannot cast tie-breaking votes. Assuming he can vote when the Board of Directors is divided, it makes no sense to think that the side with which the president agrees will demand his removal.

In any event, even assuming that Amtrak's president could be an inferior officer, there would still be another problem: Amtrak's Board may lack constitutional authority to appoint inferior officers. The Appointments Clause provides an exception from the ordinary rule of Presidential appointment for "inferior Officers," but that exception has accountability limits of its own, namely, that Congress may only vest the appointment power "in the President alone, in the Courts of Law, or in the Heads of Departments." Art. II, § 2, cl. 2. Although a multimember body like Amtrak's Board can head a Department, here it is not at all clear that Amtrak is a Department.

[1240] A "Department" may not be "subordinate to or contained within any other such component" of the Executive Branch. Free Enterprise Fund, 561 U.S., at 511, 130 S.Ct. 3138. As explained above, however, in jointly creating metrics and standards, Amtrak may have to give way to an arbitrator appointed by the STB. Does that mean that Amtrak is "subordinate to" the STB? See also 49 U.S.C. § 24308 (explaining the STB's role in disputes between Amtrak and rail carriers). At the same time, the Secretary of Transportation sits on Amtrak's Board and controls some aspects of Amtrak's relationship with rail carriers. See, e.g., §§ 24302(a)(1), 24309(d)(2). The Secretary of Transportation also has authority to exempt Amtrak from certain statutory requirements. See § 24305(f)(4). Does that mean that Amtrak is "subordinate to or contained within" the Department of Transportation? (The STB, of course, also may be "subordinate to or contained within" the Department of Transportation. If so, this may further suggest that that Amtrak is not a Department, and also further undermine the STB's ability to appoint an arbitrator). All of these are difficult questions.

* * *

In sum, while I entirely agree with the Court that Amtrak must be regarded as a federal actor for constitutional purposes, it does not by any means necessarily follow that the present structure of Amtrak is consistent with the Constitution. The constitutional issues that I have outlined (and perhaps others) all flow from the fact that no matter what Congress may call Amtrak, the Constitution cannot be disregarded.

Justice THOMAS, concurring in the judgment.

We have come to a strange place in our separation-of-powers jurisprudence. Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, our primary question — indeed, the primary question the parties ask us to answer — is whether that market participant is subject to an adequate measure of control by the Federal Government. We never even glance at the Constitution to see what it says about how this authority must be exercised and by whom.

I agree with the Court that the proper disposition in this case is to vacate the decision below and to remand for further consideration of respondent's constitutional challenge to the metrics and standards. I cannot join the majority's analysis, however, because it fails to fully correct the errors that require us to vacate the Court of Appeals' decision. I write separately to describe the framework that I believe should guide our resolution of delegation challenges and to highlight serious constitutional defects in the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) that are properly presented for the lower courts' review on remand.

I

The Constitution does not vest the Federal Government with an undifferentiated "governmental power." Instead, the Constitution identifies three types of governmental power and, in the Vesting Clauses, commits them to three branches of Government. Those Clauses provide that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States," Art. I, § 1, "[t]he executive Power shall be vested in a President of the United States," Art. II, § 1, cl. 1, and "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may [1241] from time to time ordain and establish," Art. III, § 1.

These grants are exclusive. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (legislative power); Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 496-497, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (executive power); Stern v. Marshall, 564 U.S. ___, ___-___, 131 S.Ct. 2594, 2608-2609, 180 L.Ed.2d 475 (2011) (judicial power). When the Government is called upon to perform a function that requires an exercise of legislative, executive, or judicial power, only the vested recipient of that power can perform it.

In addition to allocating power among the different branches, the Constitution identifies certain restrictions on the manner in which those powers are to be exercised. Article I requires, among other things, that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it...." Art. I, § 7, cl. 2. And although the Constitution is less specific about how the President shall exercise power, it is clear that he may carry out his duty to take care that the laws be faithfully executed with the aid of subordinates. Myers v. United States, 272 U.S. 52, 117, 47 S.Ct. 21, 71 L.Ed. 160 (1926), overruled in part on unrelated grounds in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935).

When the Court speaks of Congress improperly delegating power, what it means is Congress' authorizing an entity to exercise power in a manner inconsistent with the Constitution. For example, Congress improperly "delegates" legislative power when it authorizes an entity other than itself to make a determination that requires an exercise of legislative power. See Whitman, supra, at 472, 121 S.Ct. 903. It also improperly "delegates" legislative power to itself when it authorizes itself to act without bicameralism and presentment. See, e.g., INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). And Congress improperly "delegates" — or, more precisely, authorizes the exercise of, see Perez v. Mortgage Bankers Assn., 135 S.Ct., at 1224-1225, 2015 WL 998535, at *24 (THOMAS, J., concurring in judgment) (noting that Congress may not "delegate" power it does not possess) — executive power when it authorizes individuals or groups outside of the President's control to perform a function that requires the exercise of that power. See, e.g., Free Enterprise Fund, supra.

In order to be able to adhere to the provisions of the Constitution that allocate and constrain the exercise of these powers, we must first understand their boundaries. Here, I do not purport to offer a comprehensive description of these powers. My purpose is to identify principles relevant to today's dispute, with an eye to offering guidance to the lower courts on remand. At issue in this case is the proper division between legislative and executive powers. An examination of the history of those powers reveals how far our modern separation-of-powers jurisprudence has departed from the original meaning of the Constitution.

II

The allocation of powers in the Constitution is absolute, Perez, 135 S.Ct., at 1214-1218, 2015 WL 998535, at *15-17 (opinion of THOMAS, J.), but it does not follow that there is no overlap between the three categories of governmental power. Certain functions may be performed by two or more branches without either exceeding its [1242] enumerated powers under the Constitution. Resolution of claims against the Government is the classic example. At least when Congress waives its sovereign immunity, such claims may be heard by an Article III court, which adjudicates such claims by an exercise of judicial power. See Ex parte Bakelite Corp., 279 U.S. 438, 452, 49 S.Ct. 411, 73 L.Ed. 789 (1929). But Congress may also provide for an executive agency to adjudicate such claims by an exercise of executive power. See ibid. Or Congress may resolve the claims itself, legislating by special Act. See ibid. The question is whether the particular function requires the exercise of a certain type of power; if it does, then only the branch in which that power is vested can perform it. For example, although this Court has long recognized that it does not necessarily violate the Constitution for Congress to authorize another branch to make a determination that it could make itself, there are certain core functions that require the exercise of legislative power and that only Congress can perform. Wayman v. Southard, 10 Wheat. 1, 43, 6 L.Ed. 253 (1825) (distinguishing between those functions Congress must perform itself and those it may leave to another branch).

The function at issue here is the formulation of generally applicable rules of private conduct. Under the original understanding of the Constitution, that function requires the exercise of legislative power. By corollary, the discretion inherent in executive power does not comprehend the discretion to formulate generally applicable rules of private conduct.

A

The idea that the Executive may not formulate generally applicable rules of private conduct emerged even before the theory of the separation of powers on which our Constitution was founded.

The idea has ancient roots in the concept of the "rule of law," which has been understood since Greek and Roman times to mean that a ruler must be subject to the law in exercising his power and may not govern by will alone. M. Vile, Constitutionalism and the Separation of Powers 25 (2d ed. 1998); 2 Bracton, De Legibus et Consuetudinibus Angliae 33 (G. Woodbine ed., S. Thorne transl. 1968). The principle that a ruler must govern according to law "presupposes at least two distinct operations, the making of law, and putting it into effect." Vile, supra, at 24. Although it was originally thought "that the rule of law was satisfied if a king made good laws and always acted according to them," it became increasingly apparent over time that the rule of law demanded that the operations of "making" law and of "putting it into effect" be kept separate. W. Gwyn, The Meaning of the Separation of Powers 35 (1965); see also id., at 8-9. But when the King's power was at its height, it was still accepted that his "principal duty ... [was], to govern his people according to law." 1 W. Blackstone, Commentaries on the Laws of England 226 (1765) (Commentaries) (emphasis added).

An early expression of this idea in England is seen in the "constitutional" law concerning crown proclamations. Even before a more formal separation of powers came about during the English Civil War, it was generally thought that the King could not use his proclamation power to alter the rights and duties of his subjects. P. Hamburger, Is Administrative Law Unlawful? 33-34 (2014) (Hamburger). This power could be exercised by the King only in conjunction with Parliament and was exercised through statutes. Ibid.; see also M. Hale, The Prerogatives of the King 141, 171-172 (D. Yale ed. 1976). The King [1243] might participate in "the legislative power" by giving his "assent" to laws created by the "concurrence" of "lords and commons assembled in parliament," but he could not of his own accord "make a law or impose a charge." Id., at 141.

In 1539, King Henry VIII secured what might be called a "delegation" of the legislative power by prevailing on Parliament to pass the Act of Proclamations. Hamburger 35-36. That Act declared that the King's proclamations would have the force and effect of an Act of Parliament. Id., at 37. But the Act did not permit the King to deprive his subjects of their property, privileges and franchises, or their lives, except as provided by statutory or common law. Id., at 37-38. Nor did the Act permit him to invalidate "`any acts, [or] common laws standing at [that] time in strength and force.'" Id., at 38 (quoting An Act that Proclamations Made by the King Shall be Obeyed, 31 Hen. VIII, ch. 8, in Eng. Stat. at Large 263 (1539)).

Even this limited delegation of lawmaking power to the King was repudiated by Parliament less than a decade later. Hamburger 38. Reflecting on this period in history, David Hume would observe that, when Parliament "gave to the king's proclamation the same force as to a statute enacted by parliament," it "made by one act a total subversion of the English constitution." 3 D. Hume, The History of England from the Invasion of Julius Ceasar to the Revolution in 1688, p. 266 (1983). By the 17th century, when English scholars and jurists began to articulate a more formal theory of the separation of powers, delegations of the type afforded to King Henry VIII were all but unheard of. Hale, supra, at 172-173.

This is not to say that the Crown did not endeavor to exercise the power to make rules governing private conduct. King James I made a famous attempt, see Perez, 135 S.Ct., at 1219-1221, 2015 WL 998535, at *19-20 (opinion of THOMAS, J.), prompting the influential jurist Chief Justice Edward Coke to write that the King could not "change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament." Case of Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K.B. 1611). Coke associated this principle with Chapter 39 of the Magna Carta,^[2] which he understood to guarantee that no subject would be deprived of a private right — that is, a right of life, liberty, or property — except in accordance with "the law of the land," which consisted only of statutory and common law. Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1688 (2012). When the King attempted to fashion rules of private conduct unilaterally, as he did in the Case of Proclamations, the resulting enforcement action could not be said to accord with "the law of the land."

John Locke echoed this view. "[F]reedom of men under government," he wrote, "is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it... and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man." J. Locke, Second Treatise of Civil Government § 22, p. 13 (J. Gough ed. 1947) (Locke) (emphasis added). It followed that this freedom required that the power to make the standing rules and the power to enforce them not lie in the same hands. See id., § 143, at 72. He further [1244] concluded that "[t]he legislative c[ould not] transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it [could not] pass it over to others." Id., § 141, at 71.^[3]

William Blackstone, in his Commentaries, likewise maintained that the English Constitution required that no subject be deprived of core private rights except in accordance with the law of the land. See 1 Commentaries 129, 134, 137-138. He defined a "law" as a generally applicable "rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." Id., at 44 (internal quotation marks omitted). And he defined a tyrannical government as one in which "the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men," for "wherever these two powers are united together, there can be no public liberty." Id., at 142. Thus, although Blackstone viewed Parliament as sovereign and capable of changing the constitution, id., at 156, he thought a delegation of lawmaking power to be "disgrace[ful]," 4 id., at 424; see also Hamburger 39, n. 17.

B

These principles about the relationship between private rights and governmental power profoundly influenced the men who crafted, debated, and ratified the Constitution. The document itself and the writings surrounding it reflect a conviction that the power to make the law and the power to enforce it must be kept separate, particularly with respect to the regulation of private conduct.

The Framers' dedication to the separation of powers has been well-documented, if only half-heartedly honored. See, e.g., Mistretta v. United States, 488 U.S. 361, 380-381, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Most famously, in The Federalist 47, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty than" the separation of powers. The Federalist No. 47, p. 301 (C. Rossiter ed. 1961). "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, ... may justly be pronounced the very definition of tyranny." Ibid.; see also Perez, 135 S.Ct., at 1216-1218, 2015 WL 998535, at *16-17 (opinion of THOMAS, J.).

This devotion to the separation of powers is, in part, what supports our enduring conviction that the Vesting Clauses are exclusive and that the branch in which a power is vested may not give it up or otherwise reallocate it. The Framers were concerned not just with the starting allocation, but with the "gradual concentration of the several powers in the same department." The Federalist No. 51, at 321 (J. Madison). It was this fear that prompted the Framers to build checks and balances into our constitutional structure, [1245] so that the branches could defend their powers on an ongoing basis. Ibid.; see also Perez, 135 S.Ct., at 1216-1217, 2015 WL 998535, at *16 (opinion of THOMAS, J.).

In this sense, the founding generation did not subscribe to Blackstone's view of parliamentary supremacy. Parliament's violations of the law of the land had been a significant complaint of the American Revolution, Chapman & McConnell, supra, at 1699-1703. And experiments in legislative supremacy in the States had confirmed the idea that even the legislature must be made subject to the law. Perez, 135 S.Ct., at 1214-1217, 2015 WL 998535, at *15-16 (opinion of THOMAS, J.). James Wilson explained the Constitution's break with the legislative supremacy model at the Pennsylvania ratification convention:

"Sir William Blackstone will tell you, that in Britain ... the Parliament may alter the form of the government; and that its power is absolute, without control. The idea of a constitution, limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain....

"To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states." 2 J. Elliot, Debates on the Federal Constitution 432 (2d ed. 1863); see also 4 id., at 63 (A. Maclaine) (contrasting Congress, which "is to be guided by the Constitution" and "cannot travel beyond its bounds," with the Parliament described in Blackstone's Commentaries).

As an illustration of Blackstone's contrasting model of sovereignty, Wilson cited the Act of Proclamations, by which Parliament had delegated legislative power to King Henry VIII. 2 id., at 432 (J. Wilson); see supra, at 1243.

At the center of the Framers' dedication to the separation of powers was individual liberty. The Federalist No. 47, at 302 (J. Madison) (quoting Baron de Montesquieu for the proposition that "`[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates'"). This was not liberty in the sense of freedom from all constraint, but liberty as described by Locke: "to have a standing rule to live by ... made by the legislative power," and to be free from "the inconstant, uncertain, unknown, arbitrary will of another man." Locke § 22, at 13. At the heart of this liberty were the Lockean private rights: life, liberty, and property. If a person could be deprived of these private rights on the basis of a rule (or a will) not enacted by the legislature, then he was not truly free. See D. Currie, The Constitution in the Supreme Court: The First One Hundred Years, 1789-1888, p. 272, and n. 268 (1985).^[4]

This history confirms that the core of the legislative power that the Framers sought to protect from consolidation with the executive is the power to make "law" in the Blackstonian sense of generally applicable rules of private conduct.

III

Even with these sound historical principles in mind, classifying governmental [1246] power is an elusive venture. Wayman, 10 Wheat., at 43; The Federalist No. 37, at 228 (J. Madison). But it is no less important for its difficulty. The "check" the judiciary provides to maintain our separation of powers is enforcement of the rule of law through judicial review. Perez, 135 S.Ct., at 1219-1221, 2015 WL 998535, at *19-20 (opinion of THOMAS, J.). We may not — without imperiling the delicate balance of our constitutional system — forgo our judicial duty to ascertain the meaning of the Vesting Clauses and to adhere to that meaning as the law. Perez, 135 S.Ct., at 1219-1221, 2015 WL 998535, at *19-21.

We have been willing to check the improper allocation of executive power, see, e.g., Free Enterprise Fund, 561 U.S. 477, 130 S.Ct. 3138, 177 L.Ed.2d 706; Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991), although probably not as often as we should, see, e.g., Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). Our record with regard to legislative power has been far worse.

We have held that the Constitution categorically forbids Congress to delegate its legislative power to any other body, Whitman, 531 U.S., at 472, 121 S.Ct. 903, but it has become increasingly clear to me that the test we have applied to distinguish legislative from executive power largely abdicates our duty to enforce that prohibition. Implicitly recognizing that the power to fashion legally binding rules is legislative, we have nevertheless classified rulemaking as executive (or judicial) power when the authorizing statute sets out "an intelligible principle" to guide the rulemaker's discretion. Ibid. Although the Court may never have intended the boundless standard the "intelligible principle" test has become, it is evident that it does not adequately reinforce the Constitution's allocation of legislative power. I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process.

A

The Court first announced the intelligible principle test in J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928). That case involved a challenge to a tariff assessed on a shipment of barium dioxide. Id., at 400, 48 S.Ct. 348. The rate of the tariff had been set by proclamation of the President, pursuant to the so-called flexible tariff provision of the Tariff Act of 1922. Ibid. That provision authorized the President to increase or decrease a duty set by the statute if he determined that the duty did not "`equalize ... differences in costs of production [of the item to which the duty applied] in the United States and the principal competing country.'" Id., at 401, 48 S.Ct. 348 (quoting 19 U.S.C. § 154 (1925 ed.)). The importer of the barium dioxide challenged the provision as an unconstitutional delegation of legislative power to the President. 276 U.S., at 404, 48 S.Ct. 348. Agreeing that Congress could not delegate legislative power, the Court nevertheless upheld the Act as constitutional, setting forth the now-famous formulation: "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power." Id., at 409, 48 S.Ct. 348.

Though worded broadly, the test rested on a narrow foundation. At the time J. W. Hampton was decided, most "delegations" by Congress to the Executive, including [1247] the delegation at issue in that case, had taken the form of conditional legislation. See Marshall Field & Co. v. Clark, 143 U.S. 649, 683-689, 12 S.Ct. 495, 36 L.Ed. 294 (1892). That form of legislation "makes the suspension of certain provisions and the going into operation of other provisions of an Act of Congress depend upon the action of the President based upon the occurrence of subsequent events, or the ascertainment by him of certain facts, to be made known by his proclamation." Id., at 683, 12 S.Ct. 495.

The practice of conditional legislation dates back at least to the Third Congress in 1794. Id., at 683-689, 12 S.Ct. 495 (collecting statutes). It first came before the Court in Cargo of Brig Aurora v. United States, 7 Cranch 382, 3 L.Ed. 378 (1813). There, the Court considered whether a Presidential proclamation could, by declaring that France had ceased to violate the neutral commerce of the United States, reinstate a legislative Act embargoing British goods. Id., at 384, 388. The Court concluded that the proclamation was effective, seeing "no sufficient reaso[n] why the legislature should not exercise its discretion ... either expressly or conditionally, as their judgment should direct." Id., at 388.

At least as defined by the Court in Field, the practice of conditional legislation does not seem to call on the President to exercise a core function that demands an exercise of legislative power. Congress creates the rule of private conduct, and the President makes the factual determination that causes that rule to go into effect. That type of factual determination seems similar to the type of factual determination on which an enforcement action is conditioned: Neither involves an exercise of policy discretion, and both are subject to review by a court. See Union Bridge Co. v. United States, 204 U.S. 364, 386, 27 S.Ct. 367, 51 L.Ed. 523 (1907) (explaining that, when the Secretary of War determined whether bridges unreasonably obstruct navigation, he "could not be said to exercise strictly legislative ... power any more, for instance, than it could be said that Executive officers exercise such power when, upon investigation, they ascertain whether a particular applicant for a pension belongs to a class of persons who, under general rules prescribed by Congress, are entitled to pensions").

As it happens, however, conditional statutes sometimes did call for the President to make at least an implicit policy determination. For example, a 1794 provision entitled "An Act to authorize the President of the United States to lay, regulate and revoke Embargoes," ch. 41, 1 Stat. 372, called on the President to impose an embargo on shipping "whenever, in his opinion, the public safety shall so require...." Ibid. The statutes at issue in Field and J.W. Hampton could similarly be viewed as calling for built-in policy judgments. See Schoenbrod, The Delegation Doctrine: Could The Court Give It Substance? 83 Mich. L.Rev. 1223, 1263-1264 (1985).^[5] [1248] Such delegations of policy determinations pose a constitutional problem because they effectively permit the President to define some or all of the content of that rule of conduct. He may do so expressly — by setting out regulations specifying what conduct jeopardizes "the public safety," for example — or implicitly — by drawing distinctions on an ad hoc basis. In either event, he does so based on a policy judgment that is not reviewable by the courts, at least to the extent that the judgment falls within the range of discretion permitted him by the law. See id., at 1255-1260.

The existence of these statutes should not be taken to suggest that the Constitution, as originally understood, would permit such delegations. The 1794 embargo statute involved the external relations of the United States, so the determination it authorized the President to make arguably did not involve an exercise of core legislative power. See id., at 1260-1263 (distinguishing the tariff statute at issue in Field and J.W. Hampton on these grounds).^[6] Moreover, the statute was never subjected to constitutional scrutiny. And when a statute of its kind — that is, a tariff statute calling for an exercise of policy judgment — finally came before this Court for consideration in Field, the Court appeared to understand the statute as calling for no more than a factual determination. 143 U.S., at 693, 12 S.Ct. 495. The Court thus did not in that case endorse the principle that the Executive may fashion generally applicable rules of private conduct and appears not to have done so until the 20th century.

More to the point, J.W. Hampton can be read to adhere to the "factual determination" rationale from Field. The Court concluded its delegation analysis in J.W. Hampton not with the "intelligible principle" language, but by citing to Field for the proposition that the "Act did not in any real sense invest the President with the power of legislation, because nothing involving the expediency or just operation of such legislation was left to the determination of the President." 276 U.S., at 410, 48 [1249] S.Ct. 348 (emphasis added); Field, 143 U.S., at 692, 12 S.Ct. 495 (explaining that an Act did not "in any real sense, invest the President with the power of legislation"). Congress had created a "named contingency," and the President "was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect." J.W. Hampton, supra, at 410-411, 48 S.Ct. 348.^[7]

The analysis in Field and J.W. Hampton may have been premised on an incorrect assessment of the statutes before the Court, see n. 4, supra, but neither purported to define executive power as including the discretion to make generally applicable rules governing private conduct. To the extent that our modern jurisprudence treats them as sanctioning the "delegation" of such power, it misunderstands their historical foundations and expands the Court's holdings.

B

It is nevertheless true that, at the time J.W. Hampton was decided, there was a growing trend of cases upholding statutes pursuant to which the Executive exercised the power of "making ... subordinate rules within prescribed limits." Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 79 L.Ed. 446 (1935); see also id., at 429, 55 S.Ct. 241 (collecting cases). These cases involved executive power to make "binding rules of conduct," and they were found valid "as subordinate rules ... [when] within the framework of the policy which the legislature ha[d] sufficiently defined." Id., at 428-429, 55 S.Ct. 241. To the extent that these cases endorsed authorizing the Executive to craft generally applicable rules of private conduct, they departed from the precedents on which they purported to rely.

The key decision to which these cases purport to trace their origin is Wayman, 10 Wheat. 1, but that decision does not stand for the proposition those cases suggest. Although it upheld a statute authorizing courts to set rules governing the execution of their own judgments, id., at 50, its reasoning strongly suggests that rules of private conduct were not the proper subject of rulemaking by the courts. Writing for the Court, Chief Justice Marshall surveyed a number of choices that could be left to rulemaking by the courts, explaining that they concerned only "the regulation of the conduct of the officer of the Court in giving effect to its judgments." Id., at 45. When it came to specifying "the mode of obeying the mandate of a writ," however, he lamented that "so much of that which may be done by the judiciary, under the authority of the legislature, seems to be blended with that for which the legislature must expressly and directly provide." Id., at 46.

This important passage reflects two premises that Chief Justice Marshall took for granted, but which are disregarded in later decisions relying on this precedent: First, reflected in his discussion of "blending" permissible with impermissible discretion, is the premise that it is not the [1250] quantity, but the quality, of the discretion that determines whether an authorization is constitutional. Second, reflected in the contrast Chief Justice Marshall draws between the two types of rules, is the premise that the rules "for which the legislature must expressly and directly provide" are those regulating private conduct rather than those regulating the conduct of court officers.

Thus, when Chief Justice Marshall spoke about the "difficulty in discerning the exact limits within which the legislature may avail itself of the agency of its Courts," ibid., he did not refer to the difficulty in discerning whether the Legislature's policy guidance is "sufficiently defined," see Panama Refining, supra, at 429, 55 S.Ct. 241, but instead the difficulty in discerning which rules affected substantive private rights and duties and which did not. We continue to wrestle with this same distinction today in our decisions distinguishing between substantive and procedural rules both in diversity cases and under the Rules Enabling Act. See, e.g., Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 406-407, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010) ("In the Rules Enabling Act, Congress authorized this Court to promulgate rules of procedure subject to its review, 28 U.S.C. § 2072(a), but with the limitation that those rules `shall not abridge, enlarge or modify any substantive right,' § 2072(b)").^[8]

C

Today, the Court has abandoned all pretense of enforcing a qualitative distinction between legislative and executive power. To the extent that the "intelligible principle" test was ever an adequate means of enforcing that distinction, it has been decoupled from the historical understanding of the legislative and executive powers and thus does not keep executive "lawmaking" within the bounds of inherent executive discretion. See Whitman, 531 U.S., at 487, 121 S.Ct. 903 (THOMAS, J., concurring) ("I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power"). Perhaps we were led astray by the optical illusion caused by different branches carrying out the same functions, believing that the separation of powers would be substantially honored so long as the encroachment were not too great. See, e.g., Loving v. United States, 517 U.S. 748, 773, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996) ("Separation-of-powers principles are vindicated, not disserved, by measured cooperation between two political branches of the Government, each contributing to a lawful objective through its own processes"). Or perhaps we deliberately departed from the separation, bowing to the exigencies of modern Government that were so often cited in cases upholding challenged delegations of rulemaking authority.^[9] See, [1251] e.g., Mistretta, 488 U.S., at 372, 109 S.Ct. 647 ("[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives").

For whatever reason, the intelligible principle test now requires nothing more than a minimal degree of specificity in the instructions Congress gives to the Executive when it authorizes the Executive to make rules having the force and effect of law. And because the Court has "`almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law,'" Whitman, supra, at 474-475, 121 S.Ct. 903 (majority opinion) (quoting Mistretta, supra, at 416, 109 S.Ct. 647 (SCALIA, J., dissenting)), the level of specificity it has required has been very minimal indeed, see 531 U.S., at 474, 121 S.Ct. 903 (collecting cases upholding delegations to regulate in the "public interest"). Under the guise of the intelligible-principle test, the Court has allowed the Executive to go beyond the safe realm of factual investigation to make political judgments about what is "unfair" or "unnecessary." See, e.g., American Power & Light Co. v. SEC, 329 U.S. 90, 104-105, 67 S.Ct. 133, 91 L.Ed. 103 (1946). It has permitted the Executive to make trade-offs between competing policy goals. See, e.g., Yakus v. United States, 321 U.S. 414, 420, 423-426, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (approving authorization for agency to set prices of commodities at levels that "will effectuate the [sometimes conflicting] purposes of th[e] Act"); see also Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 686-687, 100 S.Ct. 2844, 65 L.Ed.2d 1010 (1980) (Rehnquist, J., concurring in judgment) ("It is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compromise was difficult, if not impossible, to hammer out in the legislative forge"). It has even permitted the Executive to decide which policy goals it wants to pursue. Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218-223, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009) (concluding that Congress gave the Environmental Protection Agency (EPA) discretion to decide whether it should consider costs in making certain rules). And it has given sanction to the Executive to craft significant rules of private conduct. See, e.g., Whitman, 531 U.S., at 472-476, 121 S.Ct. 903 (approving delegation to EPA to set national standards for air quality); see also id., at 488-489, 121 S.Ct. 903 (Stevens, J., concurring in part and concurring in judgment) (arguing that the Clean Air Act effects a delegation of legislative power because it authorizes EPA to make prospective, generally applicable rules of conduct).

Our reluctance to second-guess Congress on the degree of policy judgment is understandable; our mistake lies in assuming that any degree of policy judgment is permissible when it comes to establishing generally applicable rules governing private conduct. To understand the "intelligible principle" test as permitting Congress to delegate policy judgment in this context is to divorce that test from its history. It may never be possible perfectly to distinguish between legislative and executive power, but that does not mean we may look the other way when the Government [1252] asks us to apply a legally binding rule that is not enacted by Congress pursuant to Article I.

We should return to the original meaning of the Constitution: The Government may create generally applicable rules of private conduct only through the proper exercise of legislative power. I accept that this would inhibit the Government from acting with the speed and efficiency Congress has sometimes found desirable. In anticipating that result and accepting it, I am in good company. John Locke, for example, acknowledged that a legislative body "is usually too numerous, and so too slow for the dispatch requisite to execution." Locke § 160, at 80. But he saw that as a benefit for legislation, for he believed that the creation of rules of private conduct should be an irregular and infrequent occurrence. See id., § 143, at 72. The Framers, it appears, were inclined to agree. As Alexander Hamilton explained in another context, "It may perhaps be said that the power of preventing bad laws includes that of preventing good ones.... But this objection will have little weight with those who can properly estimate the mischiefs of that inconstancy and mutability in the laws, which form the greatest blemish in the character and genius of our governments." The Federalist No. 73, at 443-444. I am comfortable joining his conclusion that "[t]he injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones." Id., at 444.

IV

Although the majority corrects an undoubted error in the framing of the delegation dispute below, it does so without placing that error in the context of the constitutional provisions that govern respondent's challenge to § 207 of the PRIIA.

A

Until the case arrived in this Court, the parties proceeded on the assumption that Amtrak is a private entity, albeit one subject to an unusual degree of governmental control.^[10] The Court of Appeals agreed. 721 F.3d 666, 674-677 (C.A.D.C.2013). Because it also concluded that Congress delegated regulatory power to Amtrak, id., at 670-674, and because this Court has held that delegations of regulatory power to private parties are impermissible, Carter v. Carter Coal Co., 298 U.S. 238, 311, 56 S.Ct. 855, 80 L.Ed. 1160 (1936), it held the delegation to be unconstitutional, 721 F.3d, at 677.

Although no provision of the Constitution expressly forbids the exercise of governmental power by a private entity, our so-called "private nondelegation doctrine" flows logically from the three Vesting Clauses. Because a private entity is neither Congress, nor the President or one of his agents, nor the Supreme Court or an inferior court established by Congress, the Vesting Clauses would categorically preclude it from exercising the legislative, executive, or judicial powers of the Federal Government. In short, the "private non-delegation doctrine" is merely one application of the provisions of the Constitution that forbid Congress to allocate power to an ineligible entity, whether governmental or private.

[1253] For this reason, a conclusion that Amtrak is private — that is, not part of the Government at all — would necessarily mean that it cannot exercise these three categories of governmental power. But the converse is not true: A determination that Amtrak acts as a governmental entity in crafting the metrics and standards says nothing about whether it properly exercises governmental power when it does so. An entity that "was created by the Government, is controlled by the Government, and operates for the Government's benefit," ante, at 1232 (majority opinion), but that is not properly constituted to exercise a power under one of the Vesting Clauses, is no better qualified to be a delegatee of that power than is a purely private one. To its credit, the majority does not hold otherwise. It merely refutes the Court of Appeals' premise that Amtrak is private. But this answer could be read to suggest, wrongly, that our conclusion about Amtrak's status has some constitutional significance for "delegation" purposes.

B

The first step in the Court of Appeals' analysis on remand should be to classify the power that § 207 purports to authorize Amtrak to exercise. The second step should be to determine whether the Constitution's requirements for the exercise of that power have been satisfied.

1

Under the original understanding of the legislative and executive power, Amtrak's role in the creation of metrics and standards requires an exercise of legislative power because it allows Amtrak to decide the applicability of standards that provide content to generally applicable rules of private conduct.

Specifically, the metrics and standards alter the railroads' common-carrier obligations under 49 U.S.C. § 11101. Host railroads may enter into contracts with Amtrak under §§ 10908 and 24308 to fulfill their common-carrier obligations. The metrics and standards shape the types of contracts that satisfy the common-carrier obligations because § 207 provides that "Amtrak and its host rail carriers shall" include the metrics and standards in their contracts "[t]o the extent practicable." PRIIA § 207(c), 49 U.S.C. § 24101 (note) (emphasis added). As Justice ALITO explains, it matters little that the railroads may avoid incorporating the metrics and standards by arguing that incorporation is impracticable; the point is that they have a legal duty to try — a duty the substance of which is defined by the metrics and standards. See ante, at 1235-1236 (concurring opinion). And that duty is backed up by the Surface Transportation Board's coercive power to impose "reasonable terms" on host railroads when they fail to come to an agreement with Amtrak. § 24308(a)(2)(A)(ii). Presumably, when it is "practicable" to incorporate the metrics and standards, the Board is better positioned to deem such terms "reasonable" and to force them upon the railroads.

Although the Government's argument to the contrary will presumably change now that the Court has held that Amtrak is a governmental entity, it argued before this Court that Amtrak did not exercise meaningful power because other "governmental entities had sufficient control over the development and adoption of the metrics and standards." Brief for Petitioners 19-26. For support, the Government relied on two questionable precedents in which this Court held that Congress may grant private actors the power to determine whether a government regulation will go into effect: Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939), and United States v. Rock Royal Co-operative, Inc., 307 U.S. 533, 59 S.Ct. 993, 83 L.Ed. 1446 [1254] (1939). Those precedents reason that it does not require an exercise of legislative power to decide whether and when legally binding rules of private conduct will go into effect. Currin, supra, at 16-18, 59 S.Ct. 379; Rock Royal, supra, at 574-577, 59 S.Ct. 993. But as I have explained above, to the extent that this decision involves an exercise of policy discretion, it requires an exercise of legislative power. Supra, at 1251-1252. In any event, these precedents are directly contrary to our more recent holding that a discretionary "veto" necessarily involves an exercise of legislative power. See INS v. Chadha, 462 U.S., at 952-953, 103 S.Ct. 2764; see also id., at 987, 103 S.Ct. 2764 (White, J., dissenting) (noting that the power Congress reserved to itself was virtually identical to the power it conferred on private parties in Currin and Rock Royal). As such, Currin and Rock Royal have been discredited and lack any force as precedents.

Section 207 therefore violates the Constitution. Article I, § 1, vests the legislative power in Congress, and Amtrak is not Congress. The procedures that § 207 sets forth for enacting the metrics and standards also do not comply with bicameralism and presentment. Art. I, § 7. For these reasons, the metrics and standards promulgated under this provision are invalid.

2

I recognize, of course, that the courts below will be bound to apply our "intelligible principle" test. I recognize, too, that that test means so little that the courts are likely to conclude that § 207 calls for nothing more than the exercise of executive power. Having made that determination, the Court of Appeals must then determine whether Amtrak is constitutionally eligible to exercise executive power.

As noted, Article II of the Constitution vests the executive power in a "President of the United States of America." Art. II, § 1. Amtrak, of course, is not the President of the United States, but this fact does not immediately disqualify it from the exercise of executive power. Congress may authorize subordinates of the President to exercise such power, so long as they remain subject to Presidential control.

The critical question, then, is whether Amtrak is adequately subject to Presidential control. See Myers, 272 U.S., at 117, 47 S.Ct. 21. Our precedents treat appointment and removal powers as the primary devices of executive control, Free Enterprise Fund, 561 U.S., at 492, 130 S.Ct. 3138, and that should be the starting point of the Court of Appeals' analysis. As Justice ALITO's concurrence demonstrates, however, there are other constitutional requirements that the Court of Appeals should also scrutinize in deciding whether Amtrak is constitutionally eligible to exercise the power § 207 confers on it.

* * *

In this case, Congress has permitted a corporation subject only to limited control by the President to create legally binding rules. These rules give content to private railroads' statutory duty to share their private infrastructure with Amtrak. This arrangement raises serious constitutional questions to which the majority's holding that Amtrak is a governmental entity is all but a non sequitur. These concerns merit close consideration by the courts below and by this Court if the case reaches us again. We have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional [1255] structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.

[1] It is noteworthy that the first statute enacted by Congress was "An Act to regulate the Time and Manner of administering certain Oaths." Act of June 1, 1789, ch. 1, § 1, 1 Stat. 23.

[2] Chapter 39 of the 1215 Magna Carta declared that "[n]o free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land." A. Howard, Magna Carta: Text and Commentary 43 (1964).

[3] Locke and his contemporaries also believed that requiring laws to be made in Parliament secured the common interest. W. Gwyn, The Meaning of the Separation of Powers 75 (1965). Parliament would assemble to do the business of legislation, but then its members would disperse to live as private citizens under the laws they had created, providing them an incentive to legislate in the common interest. During Parliament's absence, the King might meet certain emergencies through the exercise of prerogative power, but in order to make new, permanent laws, he would be required to call Parliament into session. Locke §§ 143-144, at 72-73. If the King were not dependent on Parliament to legislate, then this beneficial cycle of periodic lawmaking interspersed with representatives' living as private citizens would be broken.

[4] I do not mean to suggest here that the Framers believed an Act of the Legislature was sufficient to deprive a person of private rights; only that it was necessary. See generally Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L.J. 1672, 1715, 1721-1726 (2012) (discussing historical evidence that the Framers believed the Due Process Clause limited Congress' power to provide by law for the deprivation of private rights without judicial process).

[5] The statute at issue in Field authorized the President to reimpose statutory duties on exports from a particular country if he found that the country had imposed "reciprocally unequal and unreasonable" duties on U.S. exports. 143 U.S., at 692, 12 S.Ct. 495. At least insofar as the terms "unequal" and "unreasonable" did not have settled common-law definitions that could be applied mechanically to the facts, they could be said to call for the President to exercise policy judgment about which duties qualified. See id., at 699, 12 S.Ct. 495 (Lamar, J., dissenting but concurring in judgment) (The statute "does not, as was provided in the statutes of 1809 and 1810, entrust the President with the ascertainment of a fact therein defined upon which the law is to go into operation. It goes farther than that, and deputes to the President the power to suspend another section in the same act whenever `he may deem' the action of any foreign nation ... to be `reciprocally unequal and unreasonable ...'"). Similarly, the statute at issue in J.W. Hampton called on the President, with the aid of a commission, to determine the "`costs of production'" for various goods — a calculation that could entail an exercise of policy judgment about the appropriate wage and profit rates in the relevant industries. 276 U.S., at 401, 48 S.Ct. 348.

[6] The definition of "law" in England at the time of the ratification did not necessarily include rules — even rules of private conduct — dealing with external relations. For example, while "every Englishman [could] claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law," the King "by his royal prerogative, [could] issue out his writ ne exeat regnum, and prohibit any of his subjects from going into foreign parts without licence." 1 Commentaries 133. It is thus likely the Constitution grants the President a greater measure of discretion in the realm of foreign relations, and the conditional tariff Acts must be understood accordingly. See Clinton v. City of New York, 524 U.S. 417, 445, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (distinguishing Field on the ground that the statute at issue in Field regulated foreign trade); see also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 324, 57 S.Ct. 216, 81 L.Ed. 255 (1936) ("Practically every volume of the United States Statutes contains one or more acts or joint resolutions of Congress authorizing action by the President in respect of subjects affecting foreign relations, which either leave the exercise of the power to his unrestricted judgment, or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs"). This Court has at least once expressly relied on this rationale to sanction a delegation of power to make rules governing private conduct in the area of foreign trade. See Buttfield v. Stranahan, 192 U.S. 470, 496, 24 S.Ct. 349, 48 L.Ed. 525 (1904).

[7] Contemporary perceptions of the statute were less sanguine. One editorial deemed it "the most dangerous advance in bureaucratic government ever attempted in America." D. Schoenbrod, Power Without Responsibility 36 (1993) (quoting Letter from J. Cotton (Feb. 7, 1929), in With Our Readers, 13 Constitutional Review 98, 101 (1929)). President-elect Hoover stirred the public with promises of a repeal: "There is only one commission to which delegation of [the] authority [to set tariffs] can be made. That is the great commission of [the people's] own choosing, the Congress of the United States and the President." Public Papers of the Presidents, Herbert Hoover, 1929, p. 565 (1974); see also Schoenbrod, supra, at 36.

[8] Another early precedent on which the errant "subordinate rulemaking" line of cases relies involves rules governing mining claims on public land. Jackson v. Roby, 109 U.S. 440, 441, 3 S.Ct. 301, 27 L.Ed. 990 (1883); see also United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911) (sustaining an Act authorizing the Secretary of Agriculture to make rules and regulations governing the use and occupancy of public forest reservations). Although perhaps questionable on its own terms, Jackson is distinguishable because it did not involve the Government's reaching out to regulate private conduct, but instead involved the Government's setting rules by which individuals might enter onto public land to avail themselves of resources belonging to the Government.

[9] Much of the upheaval in our delegation jurisprudence occurred during the Progressive Era, a time marked by an increased faith in the technical expertise of agencies and a commensurate cynicism about principles of popular sovereignty. See Perez v. Mortgage Bankers Assn., ___ U.S. ___, 135 S.Ct. 1199, 1223, n. 6, ___ L.Ed.2d ___, 2015 WL 998535, *22, n. 6 (2015) (THOMAS, J., concurring in judgment).

[10] See Brief for Appellees in No. 12-5204(DC), pp. 23-29 (defending § 207 under cases upholding statutes "assign[ing] an important role to a private party"); id., at 29 ("Amtrak... is not a private entity comparable to the [private parties in a relevant precedent]. Although the government does not control Amtrak's day-to-day operations, the government exercises significant structural control").

            [Syllabus from pages 52-60 intentionally omitted]

Page 60

                    Messrs. Will R. King, of Portland, Or., and L. H. Cake, of Washington, D. C. (Martin L. Pipes, of Portland, Or., of counsel), for appellant.

          Mr. George Wharton Pepper, of Philadelphia, Pa., amicus curiae.

          Mr. James M. Beck, Sol. Gen., of New York City, and Rebert P. Reeder, Sp. Asst. Atty. Gen., for the United States.

    [Argument of Counsel and Amicus Curiae from pages 60-106 intentionally omitted]

Page 106

           Mr. Chief Justice TAFT delivered the opinion of the Court.

          This case presents the question whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.

          Myers, appellant's intestate, was on July 21, 1917, appointed by the President, by and with the advice and consent of the Senate, to be a postmaster of the first class at Portland, Or., for a term of four years. On January 20, 1920, Myers' resignation was demanded. He refused the demand. On February 2, 1920, he was removed from office by order of the Postmaster General, acting by direction of the President. February 10th, Myers sent a petition to the President and another to the Senate committee on post offices, asking to be heard, if any charges were filed. He protested to the department against his removal, and continued to do so until the end of his term. He pursued no other occupation and drew compensation for no other service during the interval. On April 21, 1921, he brought this suit in the Court of Claims for his salary from the date of his removal, which, as claimed by supplemental petition filed after July 21, 1921, the end of his term, amounted to $8,838.71. In August, 1920, the President made a recess appointment of one Jones, who took office September 19, 1920.

Page 107

          The Court of Claims gave judgment against Myers and this is an appeal from that judgment. The court held that he had lost his right of action because of his delay in suing, citing Arant v. Lane, 249 U. S. 367, 39 S. Ct. 293, 63 L. Ed. 650; Nicholas v. United States, 257 U. S. 71, 42 S. Ct. 7, 66 L. Ed. 133, and Norris v. United States, 257 U. S. 77, 42 S. Ct. 9, 66 L. Ed. 136. These cases show that when a United States officer is dismissed, whether in disregard of the law or from mistake as to the facts of his case, he must promptly take effective action to assert his rights. But we do not find that Myers failed in this regard. He was constant in his efforts at reinstatement. A hearing before the Senate committee could not be had till the notice of his removal was sent to the Senate or his successor was nominated. From the time of his removal until the end of his term, there were three sessions of the Senate without such notice or nomination. He put off bringing his suit until the expiration of the Sixty-Sixth Congress, March 4, 1921. After that, and three months before his term expired, he filed his petition. Under these circumstances, we think his suit was not too late. Indeed the Solicitor General, while not formally confessing error in this respect, conceded at the bar that no laches had been shown.

          By the sixth section of the Act of Congress of July 12, 1876, 19 Stat. 80, 81, c. 179 (Comp. St. § 7190), under which Myers was appointed with the advice and consent of the Senate as a first-class postmaster, it is provided that:

          'Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.'

          The Senate did not consent to the President's removal of Myers during his term. If this statute in its requirement that his term should be four years unless sooner removed by the President by and with the consent of the

Page 108

Senate is valid, the appellant, Myers' administratrix, is entitled to recover his unpaid salary for his full term and the judgment of the Court of Claims must be reversed. The government maintains that the requirement is invalid, for the reason that under article 2 of the Constitution the President's power of removal of executive officers appointed by him with the advice and consent of the Senate is full and complete without consent of the Senate. If this view is sound, the removal of Myers by the President without the Senate's consent was legal, and the judgment of the Court of Claims against the appellant was correct, and must be affirmed, though for a different reason from the given by that court. We are therefore confronted by the constitutional question and cannot avoid it.

          The relevant parts of article 2 of the Constitution are as follows:

          'Section 1. The executive Power shall be vested in a President of the United States of America. * * *

          'Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Officers, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

          'He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be estab-

Page 109

          lished by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

          'The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

          'Section 3. He shall from time to time give to the Congress information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

          'Section 4. The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.'

          Section 1 of article 3 provides:

          'The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior Courts, shall hold their offices during good behavior. * * *'

          The question where the power of removal of executive officers appointed by the President by and with the advice and consent of the Senate was vested, was presented early in the first session of the First Congress. There is no express provision respecting removals in the Constitution, except as section 4 of article 2, above quoted, provides for removal from office by impeachment. The subject

Page 110

was not discussed in the Constitutional Convention. Under the Articles of Confederation, Congress was given the power of appointing certain executive officers of the Confederation, and during the Revolution and while the articles were given effect, Congress exercised the power of removal. May, 1776, 4 Journals of the Continental Congress, Library of Congress Ed., 361; August 1, 1777, 8 Journals, 596; January 7, 1779, 13 Journals, 32-33; June, 1779, 14 Journals, 542, 712, 714; November 23, 1780, 18 Journals, 1085; December 1, 1780, 18 Journals, 1115.

          Consideration of the executive power was initiated in the Constitutional Convention by the seventh resolution in the Virginia Plan introduced by Edmund Randolph. 1 Farrand. Records of the Federal Convention, 21. It gave to the executive 'all the executive powers of the Congress under the Confederation,' which would seem therefore to have intended to include the power of removal which had been exercised by that body as incident to the power of appointment. As modified by the committee of the whole this resolution declared for a national executive of one person to be elected by the Legislature, with power to carry into execution the national laws and to appoint to offices in cases not otherwise provided for. It was referred to the committee on detail (1 Farrand, 230), which recommended that the executive power should be vested in a single person to be styled the President of the United States, that he should take care that the laws of the United States be duly and faithfully executed, and that he should commission all the officers of the United States and appoint officers in all cases not otherwise provided by the Constitution (2 Farrand, 185). The committee further recommended that the Senate be given power to make treaties, and to appoint ambassadors and judges of the Supreme Court.

          After the great compromises of the convention-the one giving the states equality of representation in the

Page 111

Senate, and the other placing the election of the President, not in Congress, as once voted, but in an electoral college, in which the influence of larger states in the selection would be more nearly in proportion to their population-the smaller states led by Roger Sherman, fearing that under the second compromise the President would constantly be chosen from one of the larger states, secured a change by which the appointment of all officers, which theretofore had been left to the President without restriction, was made subject to the Senate's advice and consent, and the making of treaties and the appointments of ambassadors, public ministers, consuls, and judges of the Supreme Court were transferred to the President, but made subject to the advice and consent of the Senate. This third compromise was affected in a special committee in which Gouverneur Morris of Pennsylvania represented the larger states, and Roger Sherman the smaller states. Although adopted finally without objection by any state in the last days of the convention, members from the larger states, like Wilson and others, criticized this limitation of the President's power of appointment of executive officers and the resulting increase of the power of the Senate. 2 Farrand, 537, 538, 539.

          In the House of Representatives of the First Congress, on Tuesday, May 18, 1789, Mr. Madison moved in the committee of the whole that there should be established three executive departments, one of Foreign Affairs, another of the Treasury, and a third of War, at the head of each of which there should be a Secretary, to be appointed by the President by and with the advice and consent of the Senate, and to be removable by the President. The committee agreed to the establishment of a Department of Foreign Affairs, but a discussion ensued as to making the Secretary removable by the President. 1 Annals of Congress, 370, 371. 'The question was now taken and carried, by a considerable majority, in favor

Page 112

of declaring the power of removal to be in the President.' 1 Annals of Congress, 383.

          On June 16, 1789, the House resolved itself into a committee of the whole on a bill proposed by Mr. Madison for establishing an executive department to be denominated the Department of Foreign Affairs, in which the first clause, after stating the title of the officer and describing his duties, had these words 'to be removable from office by the President of the United States.' 1 Annals of Congress, 455. After a very full discussion the question was put; Shall the words 'to be removable by the President' be struck out? It was determined in the negative-yeas 20, nays 34. 1 Annals of Congress, 576.

          On June 22, in the renewal of the discussion:

          'Mr. Benson moved to amend the bill, by altering the second clause, so as to imply the power of removal to be in the President alone. The clause enacted that there should be a chief clerk, to be appointed by the Secretary of Foreign Affairs, and employed as he thought proper, and who, in case of vacancy, should have the charge and custody of all records, books, and papers appertaining to the department. The amendment proposed that the chief clerk, 'whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy,' should during such vacancy, have the charge and custody of all records, books, and papers appertaining to the department.' 1 Annals of Congress, 578.

          'Mr. Benson stated that his objection to the clause 'to be removable by the President' arose from an idea that the power of removal by the President hereafter might appear to be exercised by virtue of a legislative grant only, and consequently be subjected to legislative instability, when he was well satisfied in his own mind that it was fixed by a fair legislative construction of the Constitution.' 1 Annals of Congress, 579.

Page 113

          'Mr. Benson declared, if he succeeded in this amendment, he would move to strike out the words in the first clause, 'to be removable by the President,' which appeared somewhat like a grant. Now, the mode he took would evade that point and establish a legislative construction of the Constitution. He also hoped his amendment would succeed in reconciling both sides of the House to the decision, and quieting the minds of gentlemen.' 1 Annals of Congress, 578.

          Mr. Madison admitted the objection made by the gentleman near him (Mr. Benson) to the words in the bill. He said:

          'They certainly may be construed to imply a legislative grant of the power. He wished everything like ambiguity expunged, and the sense of the House explicitly declared, and therefore seconded the motion. Gentlemen have all along proceeded on the idea that the Constitution vests the power in the President, and what arguments were brought forward respecting the convenience or inconvenience of such disposition of the power were intended only to throw light upon what was meant by the compilers of the Constitution. Now, as the words proposed by the gentleman from New York expressed to his mind the meaning of the Constitution, he should be in favor of them, and would agree to strike out those agreed to in the committee.' 1 Annals of Congress, 578, 579.

          Mr. Benson's first amendment to alter the second clause by the insertion of the italicized words, made that clause read as follows:

          'That there shall be in the State Department an inferior officer to be appointed by the said principal officer, and to be employed therein as he shall deem proper, to be called the chief clerk in the Department of Foreign Affairs, and who, whenever the principal officers shall be removed from office by the President of the United States, or in any other case of vacancy, shall, during such va-

Page 114

          cancy, have charge and custody of all records, books and papers appertaining to said department.'

          The first amendment was then approved by a vote of 30 to 18. 1 Annals of Congress, 580. Mr. Benson then moved to strike out in the first clause the words 'to be removable by the President,' in pursuance of the purpose he had already declared, and this second motion of his was carried by a vote of 31 to 19. 1 Annals of Congress, 585.

          The bill as amended was ordered to be engrossed, and read the third time the next day, June 24, 1789, and was then passed by a vote of 29 to 22, and the clerk was directed to carry the bill to the Senate and desire their concurrence. 1 Annals of Congress, 591.

          It is very clear from this history that the exact question which the House voted upon was whether it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate. That was what the vote was taken for. Some effort has been made to question whether the decision carries the result claimed for it, but there is not the slightest doubt. after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson impeachment trial in 1868 its meaning was not doubted, even by those who questioned its soundness.

          The discussion was a very full one. Fourteen out of the 29 who voted for the passage of the bill and 11 of the 22 who voted against the bill took part in the discussion. Of the members of the House, 8 had been in the Constitutional Convention, and of these 6 voted with the majority, and 2, Roger Sherman and Elbridge Gerry, the latter of whom had refused to sign the Constitution, voted in the minority. After

Page 115

the bill as amended had passed the House, it was sent to the Senate, where it was discussed in secret session, without report. The critical vote there was upon the striking out of the clause recognizing and affirming the unrestricted power of the President to remove. The Senate divided by 10 to 10, requiring the deciding vote of the Vice President, John Adams, who voted against striking out, and in favor of the passage of the bill as it had left the House.¹ Ten of the Senators had been in the Constitutional Convention, and of them 6 voted that the power of removal was in the President alone. The bill, having passed as it came from the House, was signed by President Washington and became a law. Act July 27, 1789, 1 Stat. 28, c. 4.

          The bill was discussed in the House at length and with great ability. The report of it in the Annals of Congress is extended. James Madison was then a leader in the House, as he had been in the convention. His arguments in support of the President's constitutional power of removal independently of congressional provision, and without the consent of the Senate, were masterly, and he carried the House.

          It is convenient in the course of our discussion of this case to review the reasons advanced by Mr. Madison and his associates for their conclusion, supplementing them, so far as may be, by additional considerations which lead this court to concur therein.

          First. Mr. Madison insisted that article 2 by vesting the executive power in the President was intended to grant to him the power of appointment and removal of executive officers except as thereafter expressly provided in that article. He pointed out that one of the chief

Page 116

purposes of the convention was to separate the legislative from the executive functions. He said:

          'If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers. If there is any point in which the separation of the legislative and executive powers ought to be maintained with great caution, it is that which relates to officers and offices.' 1 Annals of Congress, 581.

          Their union under the Confederation had not worked well, as the members of the convention knew. Montesquieu's view that the maintenance of independence, as between the legislative, the executive and the judicial branches, was a security for the people had their full approval. Madison in the Convention, 2 Farrand, Records of the Federal Convention, 56. Kendall v. United States, 12 Pet. 524, 610, 9 L. Ed. 1181. Accordingly the Constitution was so framed as to vest in the Congress all legislative powers therein granted, to vest in the President the executive power, and to vest in one Supreme Court and such inferior courts as Congress might establish the judicial power. From this division on principle, the reasonable construction of the Constitution must be that the branches should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires. Madison, 1 Annals of Congress, 497. This rule of construction has been confirmed by this court in Meriwether v. Garrett, 102 U. S. 472, 515, 26 L. Ed. 197; Kilbourn v. Thompson, 103 U. S. 168, 190, 26 L. Ed. 377; Mugler v. Kansas, 123 U. S. 623, 662, 8 S. Ct. 273, 31 L. Ed. 205.

          The debates in the Constitutional Convention indicated an intention to create a strong executive, and after a controversial discussion the executive power of the government was vested in one person and many of his important functions were specified so as to avoid the

Page 117

humiliating weakness of the Congress during the Revolution and under the Articles of Confederation. 1 Farrand, 66-97.

          Mr. Madison and his associates in the discussion in the House dwelt at length upon the necessity there was for construing article 2 to give the President the sole power of removal in his responsibility for the conduct of the executive branch, and enforced this by emphasizing his duty expressly declared in the third section of the article to 'take care that the laws be faithfully executed.' Madison, 1 Annals of Congress, 496, 497.

          The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this court. Wilcox v. Jackson, 13 Pet. 498, 513, 10 L. Ed. 264; United States v. Eliason, 16 Pet. 291, 302, 10 L. Ed. 968; Williams v. United States, 1 How. 290, 297, 11 L. Ed. 135; Cunningham v. Neagle, 135 U. S. 1, 63, 10 S. Ct. 658, 34 L. Ed. 55; Russell Co. v. United States, 261 U. S. 514, 523, 43 S. Ct. 428, 67 L. Ed. 778. As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. Fisher Ames, 1 Anals of Congress, 474. It was urged that the natural meaning of the term 'executive power' granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They certainly

Page 118

were not the exercise of legislative or judicial power in government as usually understood.

          It is quite true that, in state and colonial governments at the time of the Constitutional Convention, power to make appointments and removals had sometimes been lodged in the Legislatures or in the courts, but such a disposition of it was really vesting part of the executive power in another branch of the government. In the British system, the crown, which was the executive, had the power of appointment and removal of executive officers, and it was natural, therefore, for those who framed our Constitution to regard the words 'executive power' as including both. Ex parte Grossman, 267 U. S. 87, 110, 45 S. Ct. 332, 69 L. Ed. 527, 38 A. L. R. 131. Unlike the power of conquest of the British crown, considered and rejected as a precedent for us in Fleming v. Page, 9 How. 603, 618, 13 L. Ed. 276, the association of removal with appointment of executive officers is not incompatible with our republican form of government.

          The requirement of the second section of article 2 that the Senate should advise and consent to the presidential appointments, was to be strictly construed. The words of section 2, following the general grant of executive power under section 1, were either an enumeration and emphasis of specific functions of the executive, not all inclusive, or were limitations upon the general grant of the executive power, and as such, being limitations, should not be enlarged beyond the words used. Madison, 1 Annals, 462, 463, 464. The executive power was given in general terms strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, and the fact that no express limit was placed on the power of removal by the executive was convincing indication that none was intended. This is the same construction of article 2 as that of Alexander Hamilton quoted infra.

Page 119

          Second. The view of Mr. Madison and his associates was that not only did the grant of executive power to the President in the first section of article 2 carry with it the power of removal, but the express recognition of the power of appointment in the second section enforced this view on the well-approved principle of constitutional and statutory construction that the power of removal of executive officers was incident to the power of appointment. It was agreed by the opponents of the bill, with only one or two exceptions, that as a constitutional principle the power of appointment carried with it the power of removal. Roger Sherman, 1 Annals of Congress, 491. This principle as a rule of constitutional and statutory construction, then generally conceded, has been recognized ever since. Ex parte Hennen, 13 Pet. 230, 259, 10 L. Ed. 138; Reagan v. United States, 182 U. S. 419, 21 S. Ct. 842, 45 L. Ed. 1162; Shurtleff v. United States, 189 U. S. 311, 315, 23 S. Ct. 535, 47 L. Ed. 828. The reason for the principle is that those in charge of and responsible for administering functions of government, who select their executive subordinates, need in meeting their responsibility to have the power to remove those whom they appoint.

          Under section 2 of article 2, however, the power of appointment by the executive is restricted in its exercise by the provision that the Senate, a part of the legislative branch of the government, may check the action of the executive by rejecting the officers he selects. Does this make the Senate part of the removing power? And this, after the whole discussion in the House is read attentively, is the real point which was considered and decided in the negative by the vote already given.

          The history of the clause by which the Senate was given a check upon the President's power of appointment makes it clear that it was not prompted by any desire to limit removals. As already pointed out, the important purpose of those who brought about the restriction was to lodge in the Senate, where the small states had equal

Page 120

representation with the larger states, power to prevent the President from making too many appointments from the larger states. Roger Sherman and Oliver Ellsworth, delegates from Connecticut, reported to its Governor: 'The equal representation of the states in the Senate and the voice of that branch in the appointment to offices will secure the rights of the lesser as well as of the greater states.' 3 Farrand, 99. The formidable opposition to the Senate's veto on the President's power of appointment indicated that in construing its effect, it should not be extended beyond its express application to the matter of appointments. This was made apparent by the remarks of Abraham Baldwin, of Georgia, in the debate in the First Congress. He had been a member of the Constitutional Convention. In opposing the construction which would extend the Senate's power to check appointments to removals from office, he said:

          'I am well authorized to say that the mingling of the powers of the President and Senate was strongly opposed in the convention which had the honor to submit to the consideration of the United States and the different States the present system for the government of the Union. Some gentlemen opposed it to the last, and finally it was the principal ground on which they refused to give it their signature and assent. One gentleman called it a monstrous and unnatural connection, and did not hesitate to affirm it would bring on convulsions in the government. This objection was not confined to the walls of the convention; it has been subject of newspaper declamation and perhaps justly so. Ought we not, therefore, to be careful not to extend this unchaste connection any further?' 1 Annals of Congress, 557.

          Madison said:

          'Perhaps there was no argument urged with more success or more plausibly grounded against the Constitution under which we are now deliberating than that founded

Page 121

          on the mingling of the executive and legislative branches of the government in one body. It has been objected that the Senate have too much of the executive power even, by having control over the President in the appointment to office. Now shall we extend this connection between the legislative and executive departments which will strengthen the objection and diminish the responsibility we have in the head of the executive?' 1 Annals of Congress, 380.

            It was pointed out in this great debate that the power of removal, though equally essential to the executive power is different in its nature from that of appointment. Madison, 1 Annals of Congress, 497 et seq.; Clymer, 1 Annals, 489; Sedgwick, 1 Annals, 522; Ames, 1 Annals, 541, 542; Hartley, 1 Annals, 481. A veto by the Senate-a part of the legislative branch of the government-upon removals is a much greater limitation upon the executive branch, and a much more serious blending of the legislative with the executive, than a rejection of a proposed appointment. It is not to be implied. The rejection of a nominee of the President for a particular office does not greatly embarrass him in the conscientious discharge of his high duties in the selection of those who are to aid him, because the President usually has an ample field from which to select for office, according to his preference, competent and capable men. The Senate has full power to reject newly proposed appointees whenever the President shall remove the incumbents. Such a check enables the Senate to prevent the filling of offices with bad or incompetent men, or with those against whom there is tenable objection.

          The power to prevent the removal of an officer who has served under the President is different from the authority to consent to or reject his appointment. When a nomination is made, it may be presumed that the Senate is, or may become, as well advised as to the fitness of the nomi-

Page 122

nee as the President, but in the nature of things the defects in ability or intelligence or loyalty in the administration of the laws of one who has served as an officer under the President are facts as to which the President, or his trusted subordinates, must be better informed than the Senate, and the power to remove him may therefor be regarded as confined for very sound and practical reasons, to the governmental authority which has administrative control. The power of removal is incident to the power of appointment, not to the power of advising and consenting to appointment, and when the grant of the executive power is enforced by the express mandate to take care that the laws be faithfully executed, it emphasizes the necessity for including within the executive power as conferred the exclusive power of removal.

          Oliver Ellsworth was a member of the Senate of the First Congress, and was active in securing the imposition of the Senate restriction upon appointments by the President. He was the author of the Judiciary Act in that Congress (1 Stat. 73), and subsequently Chief Justice of the United States. His view as to the meaning of this article of the Constitution, upon the point as to whether the advice of the Senate was necessary to removal, like that of Madison, formed and expressed almost in the very atmosphere of the convention, was entitled to great weight. What he said in the discussion in the Senate was reported by Senator William Patterson (2 Bancroft, History of the Constitution of the United States, 192), as follows:

          'The three distinct powers, legislative, judicial and executive should be placed in different hands. 'He shall take care that the laws be faithfully executed' are sweeping words. The officers should be attentive to the President to whom the Senate is not a council. To turn a man out of office is an exercise neither of legislative nor of judicial power; it is like a tree growing upon land that has been granted. The advice of the Senate does not make the appointment. The President appoints. There

Page 123

          are certain restrictions in certain cases, but the restriction is as to the appointment, and not as to the removal.'

          In the discussion in the First Congress fear was expressed that such a constitutional rule of construction as was involved in the passage of the bill would expose the country to tyranny through the abuse of the exercise of the power of removal by the President. Underlying such fears was the fundamental misconception that the President's attitude in his exercise of power is one of opposition to the people, while the Congress is their only defender in the government, and such a misconception may be noted in the discussions had before this court. This view was properly contested by Mr. Madison in the discussion (1 Annals of Congress, 461), by Mr. Hartley (1 Annals, 481), by Mr. Lawrence (1 Annals, 485), and by Mr. Scott (1 Annals, 533). The President is a representative of the people, just as the members of the Senate and of the House are, and it may be at some times, on some subjects, that the President, elected by all the people, is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local and not country wide, and as the President is elected for four years, with the mandate of the people to exercise his executive power under the Constitution, there would seem to be no reason for construing that instrument in such a way as to limit and hamper that power beyond the limitations of it, expressed or fairly implied.

          Another argument advanced in the First Congress against implying the power of removal in the President alone from its necessity in the proper administration of the executive power was that all embarrassment in this respect could be avoided by the President's power of suspension of officers, disloyal or incompetent, until the Senate could act. To this, Mr. Benson, said:

          'Gentlemen ask, Will not the power of suspending an officer be sufficient to prevent malconduct? Here is some

Page 124

          inconsistency in their arguments. They declare that Congress have no right to construe the Constitution in favor of the President, with respect to removal; yet they propose to give a construction in favor of the power of suspension being exercised by him. Surely gentlemen do not pretend that the President has the power of suspension granted expressly by the Constitution; if they do, they have been more successful in their researches into that instrument than I have been. If they are willing to allow a power of suspending, it must be because they construe some part of the Constitution in favor of such a grant. The construction in this case must be equally unwarrantable. But admitting it proper to grant this power, what then? When an officer is suspended, does the place become vacant? May the President proceed to fill it up? Or must the public business be likewise suspended? When we say an officer is suspended, it implies that the place is not vacant; but the parties may be heard, and, after the officer is freed from the objections that have been taken to his conduct, he may proceed to execute the duties attached to him. What would be the consequence of this? If the Senate, upon its meeting, were to acquit the officer, and replace him in his station, the President would then have a man forced on him whom he considered as unfaithful, and could not, consistent with his duty, and a proper regard to the general welfare, go so far as to intrust him with full communications relative to the business of his department. Without a confidence in the Executive Department, its operations would be subject to perpetual discord, and the administration of the government become impracticable.' 1 Annals of Congress, 506.

          Mr. Vining said:

          'The Departments of Foreign Affairs and War are peculiarly within the powers of the President, and he must be responsible for them; but take away his controlling power, and upon what principle do you require his responsibility?

Page 125

          'The gentlemen say the President may suspend. They were asked if the Constitution gave him this power any more than the other? Do they contend the one to be a more inherent power than the other? If they do not, why shall it be objected to us that we are making a Legislative construction of the Constitution. when they are contending for the same thing?' 1 Annals of Congress, 512.

          In the case before us, the same suggestion has been made for the same purpose, and we think it is well answered in the foregoing. The implication of removal by the President alone is no more a strained construction of the Constitution than that of suspension by him alone and the broader power is much more needed and more strongly to be implied.

          Third. Another argument urged against the constitutional power of the President alone to remove executive officers appointed by him with the consent of the Senate is that, in the absence of an express power of removal granted to the President, power to make provision for removal of all such officers is vested in the Congress by section 8 of article 1.

          Mr. Madison, mistakenly thinking that an argument like this was advanced by Roger Sherman, took it up and answered it as follows:

          'He seems to think (if I understand him rightly) that the power of displacing from office is subject to legislative discretion, because, it having a right to create, it may limit or modify as it thinks proper. I shall not say but at first view this doctrine may seem to have some plausibility. But when I consider that the Constitution clearly intended to maintain a marked distinction between the legislative, executive and judicial powers of government, and when I consider that, if the Legislature has a power such as is contended for, they may subject and transfer at discretion powers from one department of our government to another, they may, on that principle,

Page 126

          exclude the President altogether from exercising any authority in the removal of officers, they may give to the Senate alone, or the President and Senate combined, they may vest it in the whole Congress, or they may reserve it to be exercised by this house. When I consider the consequences of this doctrine, and compare them with the true principles of the Constitution, I own that I cannot subscribe to it. * * *' 1 Annals of Congress, 495, 496.

          Of the 11 members of House who spoke from amongst the 22 opposing the bill, 2 insisted that there was no power of removing officers after they had been appointed, except by impeachment, and that the failure of the Constitution expressly to provide another method of removal involved this conclusion. Eight of them argued that the power of removal was in the President and Senate; that the House had nothing to do with it; and most of these were very insistent upon this view in establishing their contention that it was improper for the House to express in legislation any opinion on the constitutional question whether the President could remove without the Senate's consent.

          The constitutional construction that excludes Congress from legislative power to provide for the removal of superior officers finds support in the second section of article 2. By it the appointment of all officers, whether superior or inferior, by the President is declared to be subject to the advice and consent of the Senate. In the absence of any specific provision to the contrary, the power of appointment to executive office carries with it, as a necessary incident, the power of removal. Whether the Senate must concur in the removal is aside from the point we now are considering. That point is that by the specific constitutional provision for appointment of executive officers with its necessary incident of removal, the power of appointment and removal is clearly provided for by

Page 127

the Constitution, and the legislative power of Congress in respect to both is excluded save by the specific exception as to inferior offices in the clause that follows. This is 'but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.' These words, it has been held by this court, give to Congress the power to limit and regulate removal of such inferior officers by heads of departments when it exercises its constitutional power to lodge the power of appointment with them. United States v. Perkins, 116 U. S. 483, 485, 6 S. Ct. 449, 450 (29 L. Ed. 700). Here then is an express provision introduced in words of exception for the exercise by Congress of legislative power in the matter of appointments and removals in the case of inferior executive officers. The phrase, 'But Congress may by law vest,' is equivalent to 'excepting that Congress may by law vest.' By the plainest implication it excludes congressional dealing with appointments or removals of executive officers not falling within the exception and leaves unaffected the executive power of the President to appoint and remove them.

          A reference of the whole power of removal to general legislation by Congress is quite out of keeping with the plan of government devised by the framers of the Constitution. It could never have been intended to leave to Congress unlimited discretion to vary fundamentally the operation of the great independent executive branch of government and thus most seriously to weaken it. It would be a delegation by the convention to Congress of the function of defining the primary boundaries of another of the three great divisions of government. The inclusion of removals of executive officers in the executive power vested in the President by article 2 according to its usual definition, and the implication of his power of removal of such officers from the provision of section 2 expressly recognizing in him the power of their appoint-

Page 128

ment, are a much more natural and appropriate source of the removing power.

          It is reasonable to suppose also that had it been intended to give to Congress power to regulate or control removals in the manner suggested, it would have been included among the specifically enumerated legislative powers in article 1, or in the specified limitations on the executive power in article 2. The difference between the grant of legislative power under article 1 to Congress which is limited to powers therein enumerated, and the more general grant of the executive power to the President under article 2 is significant. The fact that the executive power is given in general terms strengthened by specific terms where emphasis is appropriate, and limited by direct expressions where limitation is needed, and that no express limit is placed on the power of removal by the executive is a convincing indication that none was intended.

          It is argued that the denial of the legislative power to regulate removals in some way involves the denial of power to prescribe qualifications for office, or reasonable classification for promotion, and yet that has been often exercised. We see no conflict between the latter power and that of appointment and removal, provided of course that the qualifications do not so limit selection and so trench upon executive choice as to be in effect legislative designation. As Mr. Madison said in the First Congress:

          'The powers 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. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an executive nature. Although it be qualified in the Constitution, I would not extend or strain that qualification beyond the limits precisely fixed for it. We ought always to con-

Page 129

          sider the Constitution with an eye to the principles upon which it was founded. In this point of view, we shall readily conclude that if the Legislature determines the powers, the honors, and emoluments of an office, we should be insecure if they were to designate the officer also. The nature of things restrains and confines the legislative and executive authorities in this respect; and hence it is that the Constitution stipulates for the independence of each branch of the government.' 1 Annals of Congress, 581, 582.

          The legislative power here referred to by Mr. Madison is the legislative power of Congress under the Constitution, not legislative power independently of it. Article 2 expressly and by implication withholds from Congress power to determine who shall appoint and who shall remove except as to inferior offices. To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed and their compensation-all except as otherwise provided by the Constitution.

          An argument in favor of full congressional power to make or withhold provision for removals of all appointed by the President is sought to be found in an asserted analogy between such a power in Congress and its power in the establishment of inferior federal courts. By article 3 the judicial power of the United States is vested in one Supreme Court and in such inferior courts as the Congress may from time to time establish. By section 8 of article 1 also Congress is given power to constitute tribunals inferior to the Supreme Court. By the second section of article 3 the judicial power is extended to all cases in law and equity under this Constitution and to a substantial number of other classes of cases. Under the ac-

Page 130

cepted construction the cases mentioned in this section are treated as a description and reservoir of the judicial power of the United States and a boundary of that federal power as between the United States and the states, and the field of jurisdiction within the limits of which Congress may vest particular jurisdiction in any one inferior federal court which it may constitute. It is clear that the mere establishment of a federal inferior court does not vest that court with all the judicial power of the United States as conferred in the second section of article 3, but only that conferred by Congress specifically on the particular court. It must be limited territorially and in the classes of cases to be heard, and the mere creation of the courts does not confer jurisdiction except as it is conferred in the law of its creation or its amendments. It is said that similarly in the case of the executive power, which is 'vested in the President,' the power of appointment and removal cannot arise until Congress creates the office and its duties and powers, and must accordingly be exercised and limited only as Congress shall in the creation of the office prescribe.

          We think there is little or no analogy between the two legislative functions of Congress in the cases suggested. The judicial power described in the second section of article 3 is vested in the courts collectively, but is manifestly to be distributed to different courts and conferred or withheld as Congress shall in its discretion provide their respective jurisdictions, and is not all to be vested in one particular court. Any other construction would be impracticable. The duty of Congress, therefore, to make provision for the vesting of the whole federal judicial power in federal courts, were it held to exist, would be one of imperfect obligation and unenforceable. On the other hand, the moment an office and its powers and duties are created, the power of appointment and removal, as limited by the Constitution, vests in the execu-

Page 131

tive. The functions of distributing jurisdiction to courts and the exercise of it when distributed and vested are not at all parallel to the creation of an office, and the mere right of appointment to, and of removal from, the office which at once attaches to the executive by virtue of the Constitution.

          Fourth. Mr. Madison and his associates pointed out with great force the unreasonable character of the view that the convention intended, without express provision, to give to Congress or the Senate, in case of political or other differences, the means of thwarting the executive in the exercise of his great powers and in the bearing of his great responsibility by fastening upon him, as subordinate executive officers, men who by their inefficient service under him, by their lack of loyalty to the service, or by their different views of policy might make his taking care that the laws be faithfully executed most difficult or impossible.

          As Mr. Madison said in the debate in the First Congress:

          'Vest this power in the Senate jointly with the President, and you abolish at once that great principle of unity and responsibility in the executive department, which was intended for the security of liberty and the public good. 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 lowest officers, the middle grade, and the highest will depend, as they ought, on the President, and the President on the community.' 1 Annals of Congress, 499.

          Mr. Boudinot of New Jersey said upon the same point:

          'The supreme executive officer against his assistant; and the Senate are to sit as judges to determine whether sufficient cause of removal exists. Does not this set the Senate over the head of the President? But suppose they

Page 132

          shall decide in favor of the officer, what 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?' 1 Annals of Congress, 468.

          Mr. Sedgwick of Massachusetts asked the question:

          'Shall a man under these circumstances be saddled upon the President, who has been appointed for no other purpose but to aid the President in performing certain duties? Shall he be continued, I ask again, against the will of the President? If he is, where is the responsibility? Are you to look for it in the President, who has no control over the officer, no power to remove him if he acts unfeelingly or unfaithfully? Without you make him responsible, you weaken and destroy the strength and beauty of your system.' 1 Annals of Congress, 522.

          Made responsible under the Constitution for the effective enforcement of the law, the President needs as an indispensable aid to meet it the disciplinary influence upon those who act under him of a reserve power of removal. But it is contended that executive officers appointed by the President with the consent of the Senate are bound by the statutory law, and are not his servants to do his will, and that his obligation to care for the faithful execution of the laws does not authorize him to treat them as such. The degree of guidance in the discharge of their duties that the President may exercise over executive officers varies with the character of their service as prescribed in the law under which they act. The highest and most important duties which his subordinates perform are those in which they act for him. In such cases they are exercising not their own but his discretion. This field is a very large one. It is sometimes described as political. Kendall v. United States, 12

Page 133

Pet 524, at page 610, 9 L. Ed. 1181. Each head of a department is and must be the President's alter ego in the matters of that department where the President is required by law to exercise authority.

          The extent of the political responsibility thrust upon the President is brought out by Mr. Justice Miller, speaking for the court in Cunningham v. Neagle, 135 U. S. 1, at page 63, 10 S. Ct. 658, 668 (34 L. Ed. 55):

          'The Constitution, section 3, article 2, declares that the President 'shall take care that the laws be faithfully executed,' and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and by and with the advice and consent of the Senate to appoint the most important of them and to fill vacancies. He is declared to be commander-in-chief of the Army and Navy of the United States. The duties with are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by Acts of Congress, of executive departments, which have varied in number from four or five to seven or eight, the heads of which are familiarly called Cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great department, expressed in the phrase that 'he shall take care that the laws be faithfully executed."

          He instances executive dealings with foreign governments, as in the case of Martin Koszta, and he might have added the Jonathan Robins Case as argued by John Marshall in Congress, 5 Wheat. Appendix 1, and approved by this court in Fong Yue Ting v. United States, 149 U. S. 698, 714, 13 S. Ct. 1016, 37 L. Ed. 905. He notes the President's duty as to the protection of the mails, as to which the case of In re Debs, 158 U. S. 564, 582, 584, 15 S. Ct. 900, 39 L. Ed. 1092, affords an illustration. He

Page 134

instances executive obligation in protection of the public domain, as in United States v. San Jacinto Tin Co., 125 U. S. 273, 8 S. Ct. 850, 31 L. Ed. 747, and United States v. Hughes, 11 How. 552, 13 L. Ed. 809. The possible extent of the field of the President's political executive power may be judged by the fact that the quasi civil governments of Cuba, Porto Rico, and the Philippines, in the silence of Congress, had to be carried on for several years solely under his direction as commander-in-chief.

          In all such cases, the discretion to be exercised is that of the President in determining the national public interest and in directing the action to be taken by his executive subordinates to protect it. In this field his cabinet officers must do his will. He must place in each member of his official family, and his chief executive subordinates, implicit faith. The moment that he loses confidence in the intelligence, ability, judgment, or loyalty of any one of them, he must have the power to remove him without delay. To require him to file charges and submit them to the consideration of the Senate might make impossible that unity and co-ordination in executive administration essential to effective action.

          The duties of the heads of departments and bureaus in which the discretion of the President is exercised and which we have described are the most important in the whole field of executive action of the government. There is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must therefore control the interpretation of the Constitution as to all appointed by him.

Page 135

          But this is not to say that there are not strong reasons why the President should have a like power to remove his appointees charged with other duties than those above described. 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 2 of the Constitution evidently contemplated in vesting general executive power in the President alone. Laws are often passed with specific provision for adoption of regulations by a department or bureau head to make the law workable and effective. The ability and judgment manifested by the official 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. Of course there may be duties so peculiarly and specifically committed to the discretion of a particular officer as to raise a question whether the President may overrule or revise the officer's interpretation of his statutory duty in a particular instance. Then there may be duties of a quasi judicial character imposed on executive officers and members of executive tribunals whose decisions after hearing affect interests of individuals, the discharge of which the President cannot in a particular case properly influence or control. But even in such a case he may consider the decision after its rendition as a reason for removing the officer, on the ground that the discretion regularly entrusted to that officer by statute has not been on the whole intelligently or wisely exercised. Otherwise he does not discharge his own constitutional duty of seeing that the laws be faithfully executed.

Page 136

          We have devoted much space to this discussion and decision of the question of the presidential power of removal in the First Congress, not because a congressional conclusion on a constitutional issue is conclusive, but first because of our agreement with the reasons upon which it was avowedly based, second because this was the decision of the First Congress on a question of primary importance in the organization of the government made within two years after the Constitutional Convention and within a much shorter time after its ratification, and third because that Congress numbered among its leaders those who had been members of the convention. it must necessarily constitute a precedent upon which many future laws supplying the machinery of the new government would be based and, if erroneous, would be likely to evoke dissent and departure in future Congresses. It would come at once before the executive branch of the government for compliance and might well be brought before the judicial branch for a test of its validity. As we shall see, it was soon accepted as a final decision of the question by all branches of the government.

          It was, of course, to be expected that the decision would be received by lawyers and jurists with something of the same division of opinion as that manifested in Congress, and doubts were often expressed as to its correctness. But the acquiescence which was promptly accorded it after a few years was universally recognized.

          A typical case of such acquiescence was that of Alexander Hamilton. In this discussion in the House of Representatives in 1789, Mr. White and others cited the opinion of Mr. Hamilton in respect to the necessity for the consent of the Senate to the removals by the that of Alexander Hamilton. In the discussion Annals, First Congress, 456. It was expressed in No. 77 of the Federalist, as follows:

Page 137

          'It has been mentioned as one of the advantages to be expected from the co-operation of the Senate in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected if he were the sole disposer of offices.'

          Hamilton changed his view of this matter during his incumbency as Secretary of the Treasury in Washington's Cabinet, as is shown by his view of Washington's first proclamation of neutrality in the war between France and Great Britain. That proclamation was at first criticized as an abuse of executive authority. It has now come to be regarded as one of the greatest and most valuable acts of the first President's administration, and has been often followed by succeeding Presidents. Hamilton's argument was that the Constitution, by vesting the executive power in the President, gave him the right, as the organ of intercourse between the nation and foreign nations, to interpret national treaties and to declare neutrality. He deduced this from article 2 of the Constitution on the executive power, and followed exactly the reasoning of Madison and his associates as to the executive power upon which the legislative decision of the first Congress as to Presidential removals depends, and he cites it as authority. He said:

          'The second article of the Constitution of the United States, section first, establishes this general proposition, that 'the Executive Power shall be vested in a President of the United States of America.'

          'The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares, among other things, that the President shall be commander in chief of the army and navy of the United

Page 138

          States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the Senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed.

          'It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations, as in regard to the co-operation of the Senate in the appointment of officers and the making of treaties, which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the Constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives the legislative powers of the government, the expressions are 'All legislative powers herein granted shall be vested in a congress of the United States.' In that which grants the executive power, the expiressions are 'The executive power shall be vested in a President of the United States.'

          'The enumeration ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government.

          'The general doctrine of our Constitution then is that the executive power of the nation is vested in the Presi-

Page 139

          dent, subject only to the exceptions and qualifications, which are expressed in the instrument.

          'Two of these have already been noticed, the participation of the Senate in the appointment of officers, and in the making of treaties. A third remains to be mentioned; the right of the Legislature to 'declare war, and grant letters of marque and reprisal.'

          'With these exceptions, the executive power of the United States is completely lodged in the President. This mode of construing the Constitution has indeed been recognized by Congress in formal acts upon full consideration and debate, of which the power of removal from office is an important instance. It will follow that if a proclamation of neutrality is merely an executive act, as it is believed, has been shown, the step which has been taken by the President is liable to no just exception on the score of authority.' 7 J. C. Hamilton's Works of Hamilton, 80, 81.

          The words of a second great constitutional authority quoted as in conflict with the congressional decision are those of Chief Justice Marshall. They were used by him in his opinion in Marbury v. Madison (1803) 1 Cranch, 137, 2 L. Ed. 60. The judgment in that case is one of the great landmarks in the history of the construction of the Constitution of the United States, and is of supreme authority first in respect to the power and duty of the Supreme Court and other courts to consider and pass upon the validity of acts of Congress enacted in violation of the limitations of the Constitution when properly brought before them in cases in which the rights of the litigating parties require such consideration and decision, and second in respect to the lack of power of Congress to vest in the Supreme Court original jurisdiction to grant the remedy of mandamus in cases in which by the Constitution it is given only appellate jurisdiction. But it is not to be regarded as such authority in respect of the

Page 140

power of the President to remove officials appointed by the advice and consent of the Senate, for that question was not before the court.

          The case was heard upon a rule served upon James Madison, Secretary of State, to show cause why a writ of mandamus should not issue directing the defendant, Madison, to deliver to William Marbury his commission as a justice of the peace for the county of Washington in the District of Columbia. The rule was discharged by the Supreme Court, for the reason that the court had no jurisdiction in such a case to issue a writ of mandamus.

          The court had therefore nothing before it calling for a judgment upon the merits of the question of issuing the mandamus. Notwithstanding this, the opinion considered preliminarily, first, whether the relator had the right to the delivery of the commission; and, second, whether it was the duty of the Secretary of State to deliver it to him and a duty which could be enforced in a court of competent jurisdiction at common law by a writ of mandamus. The facts disclosed by affidavits filed were that President Adams had nominated Marbury to be a justice of the peace in the District of Columbia under a law of Congress providing for such appointment, by and with the advice and consent of the Senate, for the term of five years, and that the Senate had consented to such an appointment, that the President had signed the commission as provided by the Constitution, and had transmitted it to the Secretary of State, who, as provided by statute, had impressed the seal of the United States thereon. The opinion of the Chief Justice on these questions was that the commission was only evidence of the appointment, that upon delivery of the signed commission by the President to the Secretary of State, the office was filled and the occupant was thereafter entitled to the evidence of his appointment in the form of the commission, that the duty of the Secretary in delivering the commission to the officer entitled

Page 141

was merely ministerial and could be enforced by mandamus, that the function of the Secretary in this regard was entirely to be distinguished from his duty as a subordinate to the President in the discharge of the President's political duties which could not be controlled.

          It would seem that this conclusion applied, under the reasoning of the opinion, whether the officer was removable by the President or not, if in fact the President had not removed him. But the opinion assumed that in the case of a removable office the writ would fail on the presumption that there was in such a case discretion of the appointing power to withhold the commission. And so the Chief Justice proceeded to express an opinion on the question whether the appointee was removable by the President. He said:

          'As the law creating the office gave the officer a right to hold it for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country.'

          There was no answer by Madison to the rule issued in the case. The case went by default. It did not appear even by avowed opposition to the issue of the writ that the President had intervened in the matter at all. It would seem to have been quite consistent with the case as shown that this was merely an arbitrary refusal by the Secretary to perform his ministerial function, and therefore that the expression of opinion that the officer was not removable by the President was unnecessary, even to the conclusion that a writ in a proper case could issue. However this may be, the whole statement was certainly obiter dictum with reference to the judgment actually reached. The question whether the officer was removable was not argued to the court by any counsel contending for that view. Counsel for the relator, who made the only argument, contended that the officer was not removable by the President, because he held a judicial office and

Page 142

under the Constitution could not be deprived of his office for the five years of his term by presidential action. The opinion contains no wider discussion of the question than that quoted above.

          While everything that the great Chief Justice said, whether obiter dictum or not, challenges the highest and most respectful consideration, it is clear that the mere statement of the conclusion made by him, without any examination of the discussion which went on in the First Congress, and without reference to the elaborate arguments there advanced to maintain the decision of 1789, cannot be regarded as authority in considering the weight to be attached to that decision, a decision which, as we shall see, he subsequently recognized as a well-established rule of constitutional construction.

          In such a case we may well recur to the Chief Justice's own language in Cohen v. Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257, in which, in declining to yield to the force of his previous language in Marbury v. Madison, which was unnecessary to the judgment in that case and was obiter dictum, said:

          'It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they to beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.'

          The weight of this dictum of the Chief Justice as to a presidential removal in Marbury v. Madison, was considered by this Court in Parsons v. United States, 167

Page 143

U. S. 324, 17 S. Ct. 880, 42 L. Ed. 185. It was a suit by Parsons against the United States for the payment of the balance due for his salary and fees as United States district attorney for Alabama. He had been commissioned as such under the statute for the term of four years from the date of the commission, subject to the conditions prescribed by law. There was no express power of removal provided. Before the end of the four years he was removed by the President. He was denied recovery.

          The language of the court in Marbury v. Madison, already referred to, was pressed upon this court to show that Parsons was entitled, against the presidential action of removal, to continue in office. If it was authoritative, and stated the law as to an executive office, it ended the case; but this court did not recognize it as such, for the reason that the Chief Justice's language relied on was not germane to the point decided in Marbury v. Madison. If his language was more than a dictum and a decision, then the Parsons' Case overrules it.

          Another distinction suggested by Mr. Justice Peckham in Parsons' Case was that the remarks of the Chief Justice were in reference to an office in the District of Columbia, over which by article 1, § 8, subd. 17, Congress had exclusive jurisdiction in all cases, and might not apply to offices outside of the District in respect to which the constant practice and the congressional decision had been the other way (page 335 (17 S. Ct. 880)). How much weight should be given to this distinction, which might accord to the special exclusive jurisdiction conferred on Congress over the District power to ignore the usual constitutional separation between the executive and legislative branches of the government, we need not consider.

          If the Chief Justice in Marbury v. Madison intended to express an opinion for the court inconsistent with the legislative decision of 1789, it is enough to observe that he changed his mind, for otherwise it is inconceivable that

Page 144

he should have written and printed his full account of the discussion and decision in the First Congress and his acquiescence in it, to be found in his Life of Washington (volume V, pp. 192-200).

          He concluded his account as follows:

          'After an ardent discussion which consumed several days, the committee divided; and the amendment (i. e., to strike out from the original bill the words 'to be removable by the President') was negatived by a majority of 34 to 20. The opinion thus expressed by the House of Representatives did not explicitly convey their sense of the Constitution. Indeed the express grant of the power of the President, rather implied a right in the Legislature to give or withhold it at their discretion. To obviate any misunderstanding of the principle on which the question had been decided, Mr. Benson (later) moved in the House, when the report of the committee of the whole was taken up, to amend the second clause in the bill so as clearly to imply the power of removal to be solely in the President. He gave notice that if he should succeed in this, he would move to strike out the words which had been the subject of debate. If those words continued, he said the power of removal by the President might hereafter appear to be exercised by virtue of a legislative grant only and consequently be subjected to legislative instability, when he was well satisfied in his own mind, that it was by fair construction, fixed in the Constitution. The motion was seconded by Mr. Madison, and both amendments were adopted. As the bill passed into a law, it has ever been considered as a full expression of the sense of the Legislature on this important part of the American Constitution.'

          This language was first published in 1807, four years after the judgment in Marbury v. Madison, and the edition was revised by the Chief Justice in 1832. 3 Beveridge, Life of Marshall, 248, 252, 272, 273.

Page 145

          Congress in a number of acts followed and enforced the legislative decision of 1789 for 74 years. In the act of the First Congress, which adapted to the Constitution the ordinance of 1787 for the government of the Northwest Territory, which had provided for the appointment and removal of executive territorial officers by the Congress under the Articles of Confederation, it was said:

          'In all cases where the United States in Congress assembled, might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same powers of revocation and removal.' 1 Stat. 53, c. 8.

          This was approved 11 days after the act establishing the Department of Foreign Affairs and was evidently in form a declaration in accord with the legislative constitutional construction of the latter act. In the provision for the Treasury and War Departments, the same formula was used as occurred in the act creating the Department of Foreign Affairs, but it was omitted from other creative acts only because the decision was thought to be settled constitutional construction. In re Hennen, 13 Pet. 230, 259, 10 L. Ed. 138.

          Occasionally we find that Congress thought it wiser to make express what would have been understood. Thus in the Judiciary Act of 1789 we find it provided in section 27 (1 Stat. 87, c. 20):

          'That a marshal shall be appointed in and for each district for the term of four years, but shall be removable * * * at pleasure, whose duty it shall be to attend the District and Circuit Courts.'

          That act became a law on September 24th. It was formulated by a Senate committee of which Oliver Ellsworth was chairman and which presumably was engaged in drafting it during the time of the congressional debate on removals.

          Section 35 of the same act provided for the appointment of an attorney for the United States to prosecute crimes and conduct civil actions on behalf of

Page 146

the United States, but nothing was said as to his term of office or of his removal. The difference in the two cases was evidently to avoid any inference from the fixing of the term that a conflict with the legislative decision of 1789 was intended.

          In the Act of May 15, 1820, 3 Stat. 582, c. 102, Congress provided that thereafter all district attorneys, collectors of customs, naval officers and surveyors of the customs, navy agents, receivers of public moneys for land, registers of the land office, paymasters in the army, the apothecary general, the assistant apothecaries general, and the commissary general of purchases, to be appointed under the laws of the United States shall be appointed for the term of four years, but shall be removable from office at pleasure.

          It is argued that these express provisions for removal at pleasure indicate that without them no such power would exist in the President. We cannot accede to this view. Indeed the conclusion that they were adopted to show conformity to the legislative decision of 1789 is authoritatively settled by a specific decision of this court.

          In the Parsons' Case, 167 U. S. 324, 17 S. Ct. 880, 42 L. Ed. 185, already referred to, the exact question which the court had to decide was whether, under section 769 of the Revised Statutes (Comp. St. § 1295), providing that district attorneys should be appointed for a term of four years and their commissions should cease and expire at the expiration of four years from their respective dates, the appellant, having been removed by the President from his office as district attorney before the end of his term, could recover his salary for the remainder of the term. If the President had no power of removal, then he could recover. The court held that under that section the President did have the power of removal because of the derivation of the section from the act of 1820, above quoted. In section 769 the specific provision of the act of 1820 that the officers should be removable

Page 147

from office at pleasure was omitted. This court held that the section should be construed as having been passed in the light of the acquiescence of Congress in the decision of 1789, and therefore included the power of removal by the President, even though the clause for removal was omitted. This reasoning was essential to the conclusion reached and makes the construction by this court of the act of 1820 authoritative. The court used in respect to the act of 1820 this language (167 U. S. 324, 339, 17 S. Ct. 880, 885):

          'The provision for a removal from office at pleasure was not necessary for the exercise of that power by the President, because of the fact that he was then regarded as being clothed with such power in any event. Considering the construction of the Constitution in this regard as given by the Congress of 1789, and having in mind the constant and uniform practice of the government in harmony with such construction, we must construe this act as providing absolutely for the expiration of the term of office at the end of four years, and not as giving a term that shall last, at all events, for that time, and we think the provision that the officials were removable from office at pleasure was but a recognition of the construction thus almost universally adhered to and acquiesced in as to the power of the President to remove.'

          In the Act of July 17, 1862, 12 Stat. 596, c. 200, Congress actually requested the President to make removals in the following language:

          'The President of the United States be, and hereby is, authorized and requested to dismiss and discharge from the military service either in the Army, Navy, Marine Corps, or volunteer force, * * * any officer for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would promote, the public service.' Section 17.

          Attorney General Devens (15 Op. A. G. 421) said of this act that, so far as it gave authority to the President,

Page 148

it was simply declaratory of the long-established law; that the force of the act was to be found in the word 'requested,' by which it was intended to re-enforce strongly this power in the hands of the President at a great crisis of the state-a comment by the Attorney General which was expressly approved by this court in Blake v. United States, 103 U. S. 227, 234 (26 L. Ed. 462).

          The acquiescence in the legislative decision of 1789 for nearly three-quarters of a century by all branches of the government has been affirmed by this court in unmistakable terms. In Parsons v. United States, already cited, in which the matter of the power of removal was reviewed at length in connection with that legislative decision, this court, speaking by Mr. Justice Peckham, said (page 330 (17 S. Ct. 882)):

          'Many distinguished lawyers originally had very different opinions in regard to this power from the one arrived at by this Congress, but when the question was alluded to in after years they recognized that the decision of Congress in 1789, and the universal practice of the government under it, had settled the question beyond any power of alteration.'

          We find this confirmed by Chancellor Kent's and Mr. Justice Story's comments. Chancellor Kent, in writing to Mr. Webster in January, 1830, concerning the decision of 1789, said:

          'I heard the question debated in the summer of 1789, and Madison, Benson, Ames, Lawrence, etc., were in favor of the right of removal by the President, and such has been the opinion ever since and the practice. I thought they were right because I then thought this side uniformly right.'

          Then, expressing subsequent pause and doubt upon this construction as an original question because of Hamilton's original opinion in The Federalist, already referred to, he continued:

          'On the other hand, it is too late to call the President's power in question after a declaratory act of Congress and

Page 149

          an acquiescence of half a century. We should hurt the reputation of our government with the world, and we are accused already of the Republican tendency of reducing all executive power into the legislative, and making Congress a national convention. That the President grossly abuses the power of removal is manifest, but it is the evil genius of Democracy to be the sport of factions.' 1 Private Correspondence of Daniel Webster (Fletcher Webster Ed.) 486 (1903 National Ed., Little Brown Co.)

          In his Commentaries, referring to this question, the Chancellor said:

          'This question has never been made the subject of judicial discussion; and the construction given to the Constitution in 1789 has continued to rest on this loose, incidental, declaratory opinion of Congress, and the sense and practice of government since that time. It may now be considered as firmly and definitely settled, and there is good sense and practical utility in the construction.' 1 Kent, Commentaries, lecture 14, p. 310, subject, 'Marshals.'

          Mr. Justice Story, after a very full discussion of the decision of 1789, in which he intimates that as an original question he would favor the view of the minority, says:

          'That the final decision of this question so made was greatly influenced by the exalted character of the President then in office was asserted at the time, and has always been believed. Yet the doctrine was opposed, as well as supported, by the highest talents and patriotism of the country. The public, however, acquiesced in this decision, and it constitutes, perhaps, the most extraordinary case in the history of the government of a power, conferred by implication on the executive by the assent of a bare majority of Congress, which has not been questioned on many other occasions. Even the most jealous advocates of state rights seem to have slumbered over this vast reach of authority, and have left it untouched, as the neutral ground of controversy, in which they de-

Page 150

          sired to reap no harvest, and from which they retired, without leaving any protestations of title or contest. Nor is this general acquiescence and silence without a satisfactory explanation.' 2 Story, Constitution, § 1543.

          He finds that until a then very recent period, namely, the administration of President Jackson, the power of unrestricted removal had been exercised by all the Presidents, but that moderation and forbearance had been shown; that under President Jackson, however, an opposite course had been pursued extensively and brought again the executive power of removal to a severe scrutiny. The learned author then says:

          'If there has been any aberration from the true constitutional exposition of the power of removal (which the reader must decide for himself), it will be difficult, and perhaps impracticable, after 40 years' experience, to recall the practice to correct theory. But, at all events, it will be a consolation to those who love the Union, and honor a devotion to the patriotic discharge of duty, that in regard to 'inferior officers' (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government), the remedy for any permanent abuse is still within the power of Congress, by the simple expedient of requiring the consent of the Senate to removals in such cases.' 2 Story, Constitution, § 1544.

          In an article by Mr. Fish contained in American Historical Association Reports, for 1899 (page 67), removals from office, not including presidential removals in the Army and the Navy, in the administrations from Washington to Johnson are stated to have been as follows: Washington, 17; Adams, 19; Jefferson, 62; Madison, 24; Jackson, 180; Van Buren, 43; Harrison and Tyler, 389; Polk, 228; Taylor, 491; Fillmore, 73; Pierce, 771; Buchanan, 253; Lincoln, 1,400; Johnson, 726. These, we may infer, were all made in conformity to the legislative decision of 1789.

            Mr. Webster is cited as opposed to the decision of the First Congress. His views were evoked by the contro-

Page 151

versy between the Senate and President Jackson. The alleged general use of patronage for political purposes by the President and his dismissal of Duane, Secretary of the Treasury, without reference to the Senate, upon Duane's refusal to remove government deposits from the United States Bank, awakened bitter criticism in the Senate, and led to an extended discussion of the power of removal by the President. In a speech, May 7, 1834, on the President's protest, Mr. Webster asserted that the power of removal, without the consent of the Senate, was in the President alone, according to the established construction of the Constitution, and that Duane's dismissal could not be justly said to be a usurpation. 4 Webster, Works, 103-105. A year later, in February, 1835, Mr. Webster seems to have changed his views somewhat, and in support of a bill requiring the President in making his removals from office to send to the Senate his reasons therefor made an extended argument against the correctness of the decision of 1789. He closed his speech thus:

          'But I think the decision of 1789 has been established by practice, and recognized by subsequent laws, as the settled construction of the Constitution, and that it is our duty to act upon the case accordingly for the present, without admitting that Congress may not, hereafter, if necessity shall require it, reverse the decision of 1789.' 4 Webster, 179, 198.

          Mr. Webster denied that the vesting of the executive power in the President was a grant of power. It amounted, he said, to no more than merely naming the department. Such a construction, although having the support of as great an expounder of the Constitution as Mr. Webster, is not in accord with the usual canon of interpretation of that instrument, which requires that real effect should be given to all the words it uses. Prout v. Starr, 188 U. S. 537, 544, 23 S. Ct. 398, 47 L. Ed. 584; Hurtado v. California, 110 U. S. 516, 534, 4 S. Ct. 111, 28 L. Ed. 232; Prigg v. Pennsylvania, 16 Pet. 539, 612, 10 L. Ed. 1060; Holmes v. Jennison,

Page 152

14 Pet. 540, 570, 571, 614, 10 L. Ed. 579, 618; Cohens v. Virginia, 6 Wheat. 264, 398, 5 L. Ed. 257; Marbury v. Madison, supra, 1 Cranch, at page 174. Nor can we concur in Mr. Webster's apparent view that when Congress, after full consideration and with the acquiescence and long practice of all the branches of the government, has established the construction of the Constitution, it may by its mere subsequent legislation reverse such construction. It is not given power by itself thus to amend the Constitution. It is not unjust to note that Mr. Webster's final conclusion on this head was after pronounced political controversy with General Jackson, which he concedes may have affected his judgment and attitude on the subject.

          Mr. Clay and Mr. Calhoun, acting upon a like impulse, also vigorously attacked the decision, but no legislation of any kind was adopted in that period to reverse the established constitutional construction, while its correctness was vigorously asserted and acted on by the executive. On February 10, 1835, President Jackson declined to comply with the Senate resolution, regarding the charges which caused the removal of officials from office, saying:

          'The President in cases of this nature possesses the exclusive power of removal from office, and, under the sanctions of his official oath and of his liability to impeachment, he is bound to exercise it whenever the public welfare shall require. If, on the other hand, from corrupt motives he abuses this power, he is exposed to the same responsibilities. On no principle known to our institutions can he be required to account for the manner in which he discharged this portion of his public duties, save only in the mode and under the forms prescribed by the Constitution.' 3 Messages of the Presidents, 1352.

          In Ex parte Hennen, 13 Pet. 230, 10 L. Ed. 136, decided by this court in 1839, the prevailing effect of the legislative decision of 1789 was fully recognized. The question there

Page 153

was of the legality of the removal from office by a United States District Court of its clerk, appointed by it under section 7 of the Judiciary Act (1 Stat. 76, c. 20). The case was ably argued and the effect of the legislative decision of the First Congress was much discussed. The court said (pages 258, 259):

          'The Constitution is silent with respect to the power of removal from office, where the tenure is not fixed. It provides that the judges, both of the Supreme and inferior courts, shall hold their offices during good behavior. But no tenure is fixed for the office of clerks. * * * It cannot, for a moment, be admitted that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life. And if removable at pleasure, by whom is such removal to be made? In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained in the early history of this government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate, and the great question was whether the removal was to be by the President alone, or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate, jointly, to remove, where the tenure of the office was not fixed by the Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted as the practical construction of the Constitution that this power was vested in the President alone. And such would appear to have been the legislative construction of the Constitution. For in the organization of the three great

Page 154

          Departments of State, War and Treasury, in the year 1789, provision is made for the appointment of a subordinate officer, by the head of the department, who should have the charge and custody of the records, books, and papers appertaining to the office, when the head of the department should be removed from the office by the President of the United States. 1 Story, 5, 31, 47. When the Navy Department was established in the year 1798 (1 Story, 498), * * * provision is made for the charge and custody of the books, records and documents of the department, in case of vacancy in the office of secretary, by removal or otherwise. It is not here said, by removal by the President, as is done with respect to the heads of the other departments; and yet there can be no doubt that he holds his office by the same tenure as the other secretaries, and is removable by the President. The change of phraseology arose, probably, from its having become the settled and well-understood construction of the Constitution that the power of removal was vested in the President alone, in such cases, although the appointment of the officer was by the President and Senate.'

          The legislative decision of 1789 and this court's recognition of it was followed in 1842 by Attorney General Legare in the administration of President Tyler (4 Op. A. G. 1), in 1847 by Attorney General Clifford in the administration of President Polk (4 Op. A. G. 603), by Attorney General Crittenden in the administration of President Fillmore (5 Op. A. G. 288, 290), and by Attorney General Cushing in the Administration of President Buchanan (6 Op. A. G. 4), all of whom delivered opinions of a similar tenor.

          It has been sought to make an argument refuting our conclusion as to the President's power of removal of executive officers by reference to the statutes passed and practice prevailing from 1789 until recent years in respect to the removal of judges, whose tenure is not fixed by

Page 155

article 3 of the Constitution, and who are not strictly United States judges under that article. The argument is that, as there is no express constitutional restriction as to the removal of such judges, they come within the same class as executive officers, and that statutes and practice in respect to them may properly be used to refute the authority of the legislative decision of 1789 and acquiescence therein.

          The fact seems to be that judicial removals were not considered in the discussion in the First Congress, and that the First Congress, August 7, 1789 (1 Stat. 50-53, c. 8), and succeeding Congresses until 1804, assimilated the judges appointed for the territories to those appointed under article 3, and provided life tenure for them, while other officers of those territories were appointed for a term of years unless sooner removed. See, as to such legislation, dissenting opinion of Mr. Justice McLean, United States v. Guthrie, 17 How, 284, 308, 15 L. Ed. 102. In American Insurance Company v. Canter, 1 Pet. 511, 7 L. Ed. 242 (1828), it was held that the territorial judges were not judges of constitutional courts, on which the judicial power conferred by the Constitution on the general government could be deposited. After some 10 or 15 years, the judges in some territories were appointed for a term of years, and the Governor and other officers were appointed for a term of years unless sooner removed. In Missouri and Arkansas only were the judges appointed for 4 years if not sooner removed.

          After 1804 removals were made by the President of territorial judges appointed for terms of years before the ends of their terms. They were sometimes suspended and sometimes removed. Between 1804 and 1867 there were 10 removals of such judges in Minnesota, Utah, Washington, Oregon, and Nebraska. The Executive Department seemed then to consider that territorial judges were subject to removal just as if they had been executive

Page 156

officers under the legislative decision of 1789. Such was the opinion of Attorney General Crittenden in the question of the removal of the Chief Justice of Minnesota Territory (5 Op. A. G. 288) in 1851. Since 1867, territorial judges have been removed by the President, seven in Arizona, one in Hawaii, one in Indian Territory, two in Idaho, three in New Mexico, two in Utah, one in Wyoming.

          The question of the President's power to remove such a judge as viewed by Mr. Crittenden came before this court in United States v. Guthrie, 17 How. 284, 15 L. Ed. 102. The relator, Goodrich, who had been removed by the President from his office as a territorial judge, sought by mandamus to compel the Secretary of the Treasury to draw his warrant for the relator's salary for the remainder of his term after removal, and contested the Attorney General's opinion that the President's removal in such a case was valid. This court did not decide this issue, but held that it had no power to issue a writ of mandamus in such a case. Mr. Justice McLean delivered a dissenting opinion (at page 308). He differed from the court in its holding that mandamus would not issue. He expressed a doubt as to the correctness of the legislative decision of the First Congress as to the power of removal by the President alone of executive officers appointed by him with the consent of the Senate, but admitted that the decision as to them had been so acquiesced in, and the practice had so conformed to it, that it could not be set aside. But he insisted that the statutes and practice which had governed the appointment and removal of territorial judges did not come within the scope and effect of the legislative decision of 1789. He pointed out that the argument upon which the decision rested was based on the necessity for presidential removals in the discharge by the President of his executive duties and his taking care that the laws be faithfully executed, and that such an argument could not

Page 157

apply to the judges, over whose judicial duties he could not properly exercise any supervision or control after their appointment and confirmation.

          In the case of McAllister v. United States, 141 U. S. 174, 11 S. Ct. 949, 35 L. Ed. 693, a judge of the District Court of Alaska it was held could be deprived of a right to salary as such by his suspension under Revised Statutes § 1768. That section gave the President in his discretion authority to suspend any civil officer appointed by and with the advice and consent of the Senate, except judges of the courts of the United States, until the end of the next session of the Senate, and to designate some suitable person, subject to be removed in his discretion by the designation of another, to perform the duties of such suspended officer. It was held that the words 'except judges of the courts of the United States' applied to judges appointed under article 3 and did not apply to territorial judges, and that the President under section 1768 had power to suspend a territorial judge during a recess of the Senate, and no recovery could be had for salary during that suspended period. Mr. Justice Field with Justices Gray and Brown dissented on the ground that in England by the act of 13 William III it had become established law that judges should hold their offices independent of executive removal, and that our Constitution expressly makes such limitation as to the only judges specifically mentioned in it, and should be construed to carry such limitation as to other judges appointed under its provisions.

          Referring in Parsons v. United States, 167 U. S. 324, at page 337, 17 S. Ct. 880, 885 (42 L. Ed. 185), to the McAllister Case, this court said:

          'The case contains nothing in opposition to the contention as to the practical construction that had been given to the Constitution by Congress in 1789, and by the government generally since that time and up to the act of 1867.'

          The questions, first, whether a judge appointed by the President with the consent of the Senate under an act of

Page 158

Congress, not under authority of article 3 of the Constitution, can be removed by the President alone without the consent of the Senate; second, whether the legislative decision of 1789 covers such a case; and, third, whether Congress may provide for his removal in some other way-present considerations different from those which apply in the removal of executive officers, and therefore we do not decide them.

          We come now to consider an argument, advanced and strongly pressed on behalf of the complainant, that this case concerns only the removal of a postmaster, that a postmaster is an inferior officer, and that such an office was not included within the legislative decision of 1789, which related only to superior officers to be appointed by the President by and with the advice and consent of the Senate. This, it is said, is the distinction which Chief Justice Marshall had in mind in Marbury v. Madison in the language already discussed in respect to the President's power of removal of a District of Columbia justice of the peace appointed and confirmed for a term of years. We find nothing in Marbury v. Madison to indicate any such distinction. It cannot be certainly affirmed whether the conclusion there stated was based on a dissent from the legislative decision of 1789, or on the fact that the office was created under the special power of Congress exclusively to legislate for the District of Columbia, or on the fact that the office was a judicial one, or on the circumstance that it was an inferior office. In view of the doubt as to what was really the basis of the remarks relied on and their obiter dictum character, they can certainly not be used to give weight to the argument that the 1789 decision only related to superior officers.

          The very heated discussions during General Jackson's administration, except as to the removal of Secretary Duane, related to the distribution of offices, which were most of them inferior offices, and it was the operation of

Page 159

the legislative decision of 1789 upon the power of removal of incumbents of such offices that led the General to refuse to comply with the request of the Senate that he give his reasons for the removals therefrom. It was to such inferior officers that Chancellor Kent's letter to Mr. Webster already quoted was chiefly directed, and the language cited from his commentaries on the decision of 1789 was used with reference to the removal of United States marishals. It was such inferior offices that Mr. Justice Story conceded to be covered by the legislative decision in his treatise on the Constitution, already cited, when he suggested a method by which the abuse of patronage in such offices might be avoided. It was with reference to removals from such inferior offices that the already cited opinions of the Attorneys General, in which the legislative decision of 1789 was referred to as controlling authority, were delivered. That of Attorney General Legare (4 Op. A. G. 1) affected the removal of a surgeon in the Navy. The opinion of Attorney General Clifford (4 Op A. G. 603, 612) involved an officer of the same rank. The opinion of Attorney General Cushing (6 Op. A. G. 4) covered the office of military storekeeper. Finally, Parsons' Case, where it was the point in judgment, conclusively establishes for this court that the legislative decision of 1789 applied to a United States attorney, an inferior officer.

            It is further pressed on us that, even though the legislative decision of 1789 included inferior officers, yet under the legislative power given Congress with respect to such officers it might directly legislate as to the method of their removal without changing their method of appointment by the President with the consent of the Senate. We do not think the language of the Constitution justifies such a contention.

          Section 2 of article 2, after providing that the President shall nominate and with the consent of the Senate

Page 160

appoint ambassadors, other public ministers, consuls, judges of the Supreme Court and all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law, contains the proviso:

          'But the Congress may be law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law or in the heads of departments.'

          In United States v. Perkins, 116 U. S. 483, 6 S. Ct. 449, 29 L. Ed. 700, a cadet engineer, a graduate of the Naval Academy, brought suit to recover his salary for the period after his removal by the Secretary of the Navy. It was decided that his right was established by Revised Statutes, § 1229 (Comp. St. § 2001), providing that no officer in the military or naval service should in time of peace be dismissed from service, except in pursuance of a sentence of court-martial. The section was claimed to be an infringement upon the constitutional prerogative of the executive. The Id., 20 Court of Claims, 438, 444, refused to yield to this argument and said:

          'Whether or not Congress can restrict the power of removal incident to the power of appointment of those officers who are appointed by the President by and with the advice and consent of the Senate under the authority of the Constitution (article 2, section 2), does not arise in this case and need not be considered. We have no doubt that, when Congress by law vests the appointment of inferior officers in the heads of departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed. The head of a department has no constitutional prerogative of appointment to offices independently of the legislation of Conggress, and by such legislation he must be governed, not only in making appointments, but in all that is incident thereto.'

Page 161

          This language of the Court of Claims was approved by this court and the judgment was affirmed.

          The power to remove inferior executive officers, like that to remove superior executive officers, in an incident of the power to appoint them, and is in its nature an executive power. The authority of Congress given by the excepting clause to vest the appointment of such inferior officers in the heads of departments carries with it authority incidentally to invest the heads of departments with power to remove. It has been the practice of Congress to do so and this court has recognized that power. The court also has recognized in the Perkins Case that Congress, in committing the appointment of such inferior officers to the heads of departments, may prescribe incidential regulations controlling and restricting the latter in the exercise of the power of removal. But the court never has held, nor reasonably could hold, although it is argued to the contrary on behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause, and to infringe the constitutional principle of the separation of governmental powers.

          Assuming, then, the power of Congress to regulate removals as incidental to the exercise of its constitutional power to vest appointments of inferior officers in the heads of departments, certainly so long as Congress does not exercise that power, the power of removal must remain where the Constitution places it, with the President, as part of the executive power, in accordance with the legislative decision of 1789 which we have been considering.

          Whether the action of Congress in removing the necessity for the advice and consent of the Senate and putting the power of appointment in the President alone would

Page 162

make his power of removal in such case any more subject to Congressional legislation than before is a question this court did not decide in the Perkins Case. Under the reasoning upon which the legislative decision of 1789 was put, it might be difficult to avoid a negative answer, but it is not before us and we do not decide it.

          The Perkins Case is limited to the vesting by Congress of the appointment of an inferior officer in the head of a department. The condition upon which the power of Congress to provide for the removal of inferior officers rests is that it shall vest the appointment in some one other than the President with the consent of the Senate. Congress may not obtain the power and provide for the removal of such officer except on that condition. If it does not choose to intrust the appointment of such inferior officers to less authority than the President with the consent of the Senate, it has no power of providing for their removal. That is the reason why the suggestion of Mr. Justice Story, relied upon in this discussion, cannot be supported, if it is to have the construction which is contended for. He says that in regard to inferior officers under the legislative decision of 1789 'the remedy for any permanent abuse (i. e., of executive patronage) is still within the power of Congress by the simple expedient of requiring the consent of the Senate to removals in such cases.' It is true that the remedy for the evil of political executive removals of inferior offices is with Congress by a simple expedient but it includes a change of the power of appointment from the President with the consent of the Senate. Congress must determine, first, that the office is inferior; and, second, that it is willing that the office shall be filled by the appointment by some other authority than the President with the consent of the Senate. That the latter may be an important consideration is manifest, and is the subject of comment by this court in its opinion in the case of Shurtleff v. United States, 189 U. S. 311, 315, 23 S. Ct. 535, 536 (47 L. Ed. 828), where this court said:

Page 163

          'To take away this power of removal in relation to an inferior office created by statute, although that statute provided for an appointment thereto by the President and confirmation by the Senate, would require very clear and explicit language. It should not be held to be takenaway by mere inference or implication. Congress has regarded the office as of sufficient importance to make it proper to fill it by an appointment to be made by the President and confirmed by the Senate. It has thereby classed it as appropriately coming under the direct supervision of the President and to be administered by officers appointed by him (and confirmed by the Senate), with reference to his constitutional responsibility to see that the laws are faithfully executed. Article 2, § 3.'

          It is said that for 40 years or more postmasters were all by law appointed by the Postmaster General. This was because Congress under the excepting clause so provided. But thereafter Congress required certain classes of them to be, as they now are, appointed by the President with the consent of the Senate. This is an indication that Congress deemed appointment by the President with the consent of the Senate essential to the public welfare, and until it is willing to vest their appointment in the head of the department they will be subject to removal by the President alone, and any legislation to the contrary must fall as in conflict with the Constitution.

          Summing up, then, the facts as to acquiescence by all branches of the government in the legislative decision of 1789 as to executive officers, whether superior or inferior, we find that from 1789 until 1863, a period of 74 years, there was no act of Congress, no executive act, and no decision of this court at variance with the declaration of the First Congress; but there was, as we have seen, clear affirmative recognition of it by each branch of the government.

          Our conclusion on the merits, sustained by the arguments before stated, is that article 2 grants to the Presi-

Page 164

dent the executive power of the government-i, e., the general administrative control of those executing 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; that article 2 excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent; that the provisions of the second section of article 2, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed, and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate's power of checking appointments; and, finally, that to hold otherwise would make it impossible for the President, in case of political or other difference with the Senate or Congress, to take care that the laws be faithfully executed.

          We come now to a period in the history of the government when both houses of Congress attempted to reverse this constitutional construction, and to subject the power of removing executive officers appointed by the President and confirmed by the Senate to the control of the Senate, indeed finally to the assumed power in Congress to place the removal of such officers anywhere in the government.

          This reversal grew out of the serious political difference between the two houses of Congress and President John-

Page 165

son. There was a two-thirds majority of the Republican party, in control of each house of Congress, which resented what it feared would be Mr. Johnson's obstructive course in the enforcement of the reconstruction meansures in respect to the states whose people had lately been at war against the national government. This led the two houses to enact legislation to curtail the then acknowledged powers of the President. It is true that during the latter part of Mr. Lincoln's term two important voluminous acts were passed, each containing a section which seemed inconsistent with the legislative decision of 1789 (Act Feb. 25, 1863, 12 Stat. 665, c. 58, § 1; Act March 3, 1865, 13 Stat. 489, c. 79, § 12); but they were adopted without discussion of the inconsistency and were not tested by executive or judicial inquiry. The real challenge to the decision of 1789 was begun by the Act of July 13, 1866, 14 Stat. 92, c. 176, forbidding dismissals of Army and Navy officers in time of peace without a sentence by court-martial, which this court in Blake v. United States, 103 U. S. 227, at page 235 (26 L. Ed. 462) attributed to the growing difference between President Johnson and Congress.

          Another measure having the same origin and purpose was a rider on the Army Appropriation Act of March 2, 1867, 14 Stat. 487, c. 170, § 2, which fixed the headquarters of the General of the Army of the United States at Washington, directed that all orders relating to military operations by the President or Secretary of War should be issued through the General of the Army, who should not be removed, suspended, or relieved from command, or assigned to duty elsewhere, except at his own request, without the previous approval of the Senate; that any orders of instructions relating to military operations issued contrary to this should be void; and that any officer of the Army who should issue, knowingly transmit, or obey any orders issued contrary to the provisions of

Page 166

this section, should be liable to imprisonment for years. By the Act of March 27, 1868, 15 Stat. 44, c. 34, § 2, the next Congress repealed a statutory provision as to appeals in habeas corpus cases, with the design, as was avowed by Mr. Schenck, chairman of the House committee on ways and means, of preventing this court from passing on the validity of reconstruction legislation. 81 Congressional Globe, pp. 1881, 1883; Ex parte McCardle, 7 Wall. 506, 19 L. Ed. 264.

          But the chief legislation in support of the reconstruction policy of Congress was the Tenure of Office Act of March 2, 1867, 14 Stat. 430, c. 154, providing that all officers appointed by and with the consent of the Senate should hold their offices until their successors should have in like manner been appointed and qualified; that certain heads of departments, including the Secretary of War, should hold their offices during the term of the President by whom appointed and one month thereafter, subject to removal by consent of the Senate. The Tenure of Office Act was vetoed, but it was passed over the veto. The House of Representatives preferred articles of impeachment against President Johnson for refusal to comply with, and for conspiracy to defeat, the legislation above referred to, but he was acquitted for lack of a two-thirds vote for conviction in the Senate.

          In Parsons v. United States, supra, the court thus refers to the passage of the Tenure of Office Act (page 340):

          'The President, as is well known, vetoed the Tenure of Office Act, because he said it was unconstitutional in that it assumed to take away the power of removal constitutionally vested in the President of the United States-a power which had been uniformly exercised by the Executive Department of the government from its foundation. Upon the return of the bill to Congress it was passed over the President's veto by both houses and became a law. The continued and uninterrupted practice of the

Page 167

          government from 1789 was thus broken in upon and changed by the passage of this act, so that, if constitutional, thereafter all executive officers whose appointments had been made with the advice and consent of the Senate could not be removed by the President without the concurrence of the Senate in such order of removal.

          'Mr. Blaine, who was in Congress at the time, in afterwards speaking of this bill, said: 'It was an extreme proposition-a new departure from the long-established usage of the federal government-and for that reason, if for no other, personally degrading to the incumbent of the presidential chair. It could only have grown out of abnormal excitement created by dissensions between the two great departments of the government. * * * The measure was resorted to as one of self-defense against the alleged aggressions and unrestrained power of the Executive Department.' Twenty Years of Congress, vol. 2, pp. 273, 274.'

          The extreme provisions of all this legislation were a full justification for the considerations, so strongly advanced by Mr. Madison and his associates in the First Congress, for insisting that the power of removal of executive officers by the President alone was essential in the division of powers between the executive and the legislative bodies. It exhibited in a clear degree the paralysis to which a partisan Senate and Congress could subject to executive arm, and destroy the principle of executive responsibility, and separation of the powers sought for by the framers of our government, if the President had no power of removal save by consent of the Senate. It was an attempt to redistribute the powers and minimize those of the President.

          After President Johnson's term ended, the injury and invalidity of the Tenure of Office Act in its radical innovation were immediately recognized by the executive and objected to. General Grant, succeeding Mr. Johnson

Page 168

in the presidency, earnestly recommended in his first message the total repeal of the act, saying:

          'It may be well to mention here the embarrassment possible to arise from leaving on the statute books the so-called 'Tenure of Office Acts,' and to earnestly recommend their total repeal. It could not have been the intention of the framers of the Constitution, when providing that appointments made by the President should receive the consent of the Senate, that the latter should have the power to retain in office persons placed there by federal appointment against the will of the President. The law is inconsistent with a faithful and efficient administration of the government. What faith can an executive put in officials forced upon him, and those, too, whom he has suspended for reason? How will such officials be likely to serve an administration which they know does not trust them?' 9 Messages and Papers of the Presidents, 3992.

          While in response to this a bill for repeal of that act passed the House, it failed in the Senate, and, though the law was changed, it still limited the presidential power of removal. The feeling growing out of the controversy with President Johnson retained the act on the statute book until 1887, when if was repealed. 24 Stat. 500, c. 353. During this interval, on June 8, 1872, Congress passed an act reorganizing and consolidating the Post Office Department, and provided that the Postmaster General and his three assistants should be appointed by the President by and with the advice and consent of the Senate, and might be removed in the same manner. 17 Stat. 284, c. 335, § 2. In 1876 the act here under discussion was passed, making the consent of the Senate necessary both to the appointment and removal of first, second, and third class postmasters. 19 Stat. 80, c. 179, § 6 (Comp. St. § 7190).

          In the same interval, in March, 1886, President Cleveland, in discussing the requests which the Senate had

Page 169

made for his reasons for removing officials, and the assumption that the Senate had the right to pass upon those removals and thus to limit the power of the President, said:

          'I believe the power to remove or suspend such officials is vested in the President alone by the Constitution, which in express terms provides that 'the executive power shall be vested in a President of the United States of America,' and that 'he shall take care that the laws be faithfully executed.'

          'The Senate belongs to the legislative branch of the government. When the Constitution by express provision superadded to its legislative duties the right to advise and consent to appointments to office and to sit as a court of impeachment, it conferred upon that body all the control and regulation of executive action supposed to be necessary for the safety of the people; and this express and special grant of such extraordinary powers, not in any way related to or growing out of general senatorial duties, and in itself a departure from the general plan of our government, should be held, under a familiar maxim of construction, to exclude every other right of interference with executive functions.'

          11 Messages and Papers of the Presidents, 4964.

          The attitude of the Presidents on this subject has been unchanged and uniform to the present day whenever an issue has clearly been raised. In a message withholding his approval of an act which he thought infringed upon the executive power of removal, President Wilson said:

          'It has, I think, always been the accepted construction of the Constitution that the power to appoint officers of this kind carries with it, as an incident, the power to remove. I am convinced that the Congress is without constitutional power to limit the appointing power and its incident, the power of removal, derived from the Constitution.' 59 Congressional Record (June 4, 1920) 8609.

Page 170

          And President Coolidge, in a message to Congress, in response to a resolution of the Senate that it was the sense of that body that the President should immediately request the resignation of the then Secretary of the Navy, replied:

          'No official recognition can be given to the passage of the Senate resolution relative to their opinion concerning members of the Cabinet or other officers under executive control.

          '* * * The dismissal of an officer of the government, such as is involved in this case, other than by impeachment, is exclusively an executive function. I regard this as a vital principle of our government.'

          65 Congressional Record (Feb. 13, 1924) 2335.

          In spite of the foregoing presidential declarations, it is contended that, since the passage of the Tenure of Office Act, there has been general acquiescence by the executive in the power of Congress to forbid the President alone to remove executive officers, an acquiescence which has changed any formerly accepted constitutional construction to the contrary. Instances are cited of the signed approval by President Grant and other Presidents of legislation in derogation of such construction. We think these are all to be explained, not by acquiescence therein, but by reason of the otherwise valuable effect of the legislation approved. Such is doubtless the explanation of the executive approval of the act of 1876, which we are considering, for it was an appropriation act on which the section here in question was imposed as a rider.

          In the use of congressional legislation to support or change a particular construction of the Constitution by acquiescence, its weight for the purpose must depend not only upon the nature of the question, but also upon the attitude of the executive and judicial branches of the government, as well as upon the number of instances in the execution of the law in which opportunity for objec-

Page 171

tion in the courts or elsewhere is afforded. When instances which actually involve the question are rare or have not in fact occurred, the weight of the mere presence of acts on the statute book for a considerable time as showing general acquiescence in the legislative assertion of a questioned power is minimized. No instance is cited to us where any question has arisen respecting a removal of a Postmaster General or one of his assistants. The President's request for resignations of such officers is generally complied with. The same thing is true of the postmasters. There have been many executive removals of them and but few protests or objections. Even when there has been a refusal by a postmaster to resign, removal by the President has been followed by a nomination of a successor and the Senate's confirmation has made unimportant the inquiry as to the necessity for the Senate's consent to the removal.

          Other acts of Congress are referred to which contain provisions said to be inconsistent with the 1789 decision. Since the provision for an Interstate Commerce Commission in 1887, many administrative boards have been created whose members are appointed by the President, by and with the advice and consent of the Senate, and in the statutes creating them have been provisions for the removal of the members for specified causes. Such provisions are claimed to be inconsistent with the independent power of removal by the President. This, however, is shown to be unfounded by the case of Shurtleff v. United States, 189 U. S. 311, 23 S. Ct. 535, 47 L. Ed. 828 (1903). That concerned an act creating a board of general appraisers, 26 Stat. 131, 136, c. 407, § 12 (Comp. St. § 5593), and provided for their removal for inefficiency, neglect of duty, or malfeasance in office. The President removed an appraiser without notice or hearing. It was forcibly contended that the affirmative language of the statute implied the negative of the power to remove except for cause and after a hearing. This would

Page 172

have been the usual rule of construction, but the court declined to apply it. Assuming for the purpose of that case only, but without deciding, that Congress might limit the President's power to remove, the court held that, in the absence of constitutional or statutory provision otherwise, the President could by virtue of his general power of appointment remove an officer, though appointed by and with the advice and consent of the Senate, and notwithstanding specific provisions for his removal for cause, on the ground that the power of removal inhered in the power to appoint. This is an indication that many of the statutes cited are to be reconciled to the unrestricted power of the President to remove, if he chooses to exercise his power.

          There are other later acts pointed out in which doubtless the inconsistency with the independent power of the President to remove is clearer, but these cannot be said to have really received the acquiescence of the executive branch of the government. Whenever there has been a real issue made in respect to the question of presidential removals, the attitude of the executive in Congressional message has been clear and positive against the validity of such legislation. The language of Mr. Cleveland in 1886, 20 years after the Tenure of Office Act, in his controversy with the Senate in respect to his independence of that body in the matter of removing inferior officers appointed by him and confirmed by the Senate, was quite as pronounced as that of General Jackson in a similar controversy in 1835. Mr. Wilson in 1920 and Mr. Coolidge in 1924 were quite as all-embracing in their views of the power of removal as General Grant in 1869, and as Mr. Madison and Mr. John Adams in 1789.

          The fact seems to be that all departments of the government have constantly had in mind, since the passage of the Tenure of Office Act, that the question of power of removal by the President of officers appointed by him

Page 173

with the Senate's consent has not been settled adversely to the legislative action of 1789, but, in spite of congressional action, has remained open until the conflict should be subjected to judicial investigation and decision.

          The action of this court cannot be said to constitute assent to a departure from the legislative decision of 1789, when the Parsons and Shurtleff Cases, one decided in 1897, and the other in 1903, are considered, for they certainly leave the question open. Wallace v. United States, 257 U. S. 541, 42 S. Ct. 221, 66 L. Ed. 360. Those cases indicate no tendency to depart from the view of the First Congress. This court has since the Tenure of Office Act manifested an earnest desire to avoid a final settlement of the question until it should be inevitably presented, as it is here.

          An argument ab inconvenienti has been made against our conclusion in favor of the executive power of removal by the President, without the consent of the Senate, that it will open the door to a reintroduction of the spoils system. The evil of the spoils system aimed at in the Civil Service Law and its amendments is in respect to inferior offices. It has never been attempted to extend that law beyond them. Indeed Congress forbids its extension to appointments confirmed by the Senate, except with the consent of the Senate. Act of January 16, 1883, 22 Stat. 403, 406, c. 27, sec. 7 (Comp. St. § 3278). Reform in the federal civil service was begun by the Civil Service Act of 1883. It has been developed from that time, so that the classified service now includes a vast majority of all the civil officers. It may still be enlarged by further legislation. The independent power of removal by the President alone under present conditions works no practical interference with the merit system. Political appointments of inferior officers are still maintained in one important class, that of the first, second, and third class postmasters, collectors of internal revenue, marshals, collectors of customs, and other officers of that

Page 174

kind distributed through the country. They are appointed by the President with the consent of the Senate. It is the intervention of the Senate in their appointment, and not in their removal, which prevents their classification into the merit system. If such appointments were vested in the heads of departments to which they belong, they could be entirely removed from politics, and that is what a number of Presidents have recommended. President Hayes, whose devotion to the promotion of the merit system and the abolition of the spoils system was unquestioned, said in his Fourth annual message of December 6, 1880, that the first step to improvement in the civil service must be a complete divorce between Congress and the executive on the matter of appointments and he recommended the repeal of the Tenure of Office Act of 1867 for this purpose. 10 and 11 Messages and Papers of the Presidents, 4555-4557. The extension of the merit system rests with Congress.

          What, then, are the elements that enter into our decision of this case? We have, first, a construction of the Constitution made by a Congress which was to provide by legislation for the organization of the government in accord with the Constitution which had just then been adopted, and in which there were, as Representatives and Senators, a considerable number of those who had been members of the convention that framed the Constitution and presented it for ratification. It was the Congress that launched the government. It was the Congress that rounded out the Constitution itself by the proposing of the first 10 amendments, which had in effect been promised to the people as a consideration for the ratification. It was the Congress in which Mr. Madison, one of the first in the framing of the Constitution, led also in the organization of the government under it. It was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest

Page 175

weight in the interpretation of that fundamental instrument. This construction was followed by the legislative department and the executive department continuously for 73 years, and this, although the matter in the heat of political differences between the executive and the Senate in President Jackson's time, was the subject of bitter controversy, as we have seen. This court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution, when the founders of our government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions. Stuart v. Laird, 1 Cranch, 299, 309, 2 L. Ed. 115; Martin v. Hunter's Lessee, 1 Wheat. 304, 351, 4 L. Ed. 97; Cohen v. Virginia, 6 Wheat. 264, 420, 5 L. Ed. 257; Prigg v. Pennsylvania, 16 Pet. 544, 621 (10 L. Ed. 1060); Cooley v. Board of Wardens, etc., 12 How. 299, 315, 13 L. Ed. 996; Burrow-Giles Lithographing Company v. Sarony, 111 U. S. 53, 57, 4 S. Ct. 279, 28 L. Ed. 349; Ames v. Kansas, 111 U. S. 449, 463-469, 4 S. Ct. 437, 28 L. Ed. 482; The Laura, 114 U. S. 411, 416, 5 S. Ct. 881, 29 L. Ed. 147; Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 297, 8 S. Ct. 1370, 32 L. Ed. 239; McPherson v. Blacker, 146 U. S. 1, 28, 33, 35, 13 S. Ct. 3, 36 L. Ed. 869; Knowlton v. Moore, 178 U. S. 41, 56, 20 S. Ct. 747, 44 L. Ed. 969; Fairbank v. United States, 181 U. S. 283, 308, 21 S. Ct. 648, 45 L. Ed. 862; Ex parte Grossman, 267 U. S. 87, 118, 45 S. Ct. 332, 69 L. Ed. 527, 38 A. L. R. 131.

          We are now asked to set aside this construction thus buttressed and adopt an adverse view, because the Congress of the United States did so during a heated political difference of opinion between the then President and the majority leaders of Congress over the reconstruction measures adopted as a means of restoring to their proper status the states which attempted to withdraw from the Union at the time of the Civil War. The extremes to which the majority in both Houses carried legislative measures in that matter are now recognized by all who calmly review the history of that episode in our government leading to articles of impeachment against President Johnson and his acquittal. Without animadvert-

Page 176

ing on the character of the measures taken, we are certainly justified in saying that they should not be given the weight affecting proper constitutional construction to be accorded to that reached by the First Congress of the United States during a political calm and acquiesced in by the whole government for three-quarters of a century, especially when the new construction contended for has never been acquiesced in by either the executive or the judicial departments. While this court has studiously avoided deciding the issue until it was presented in such a way that it could not be avoided, in the references it has made to the history of the question, and in the presumptions it has indulged in favor of a statutory construction not inconsistent with the legislative decision of 1789, it has indicated a trend of view that we should not and cannot ignore. When on the merits we find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct; and it therefore follows that the Tenure of Office Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so.

          For the reasons given, we must therefore hold that the provision of the law of 1876 by which the unrestricted power of removal of first-class postmasters is denied to the President is in violation of the Constitution and invalid. This leads to an affirmance of the judgment of the Court of Claims.

          Before closing this opinion we wish to express the obligation of the court to Mr. Pepper for his able brief and argument as a friend of the court. Undertaken at our request, our obligation is none the less, if we find ourselves obliged to take a view adverse to his. The strong presentation of arguments against the conclusion of the court

Page 177

is of the utmost value in enabling the court to satisfy itself that it has fully considered all that can be said.

          Judgment affirmed.

Page 178

           The separate opinion of Mr. Justice McREYNOLDS.

          The following provisions of the act making appropriations for the Post Office Department, approved July 12, 1876 (chapter 179, 19 Stat. 78, 80 (Comp. St. §§ 7189, 7190)) have not been repealed or superseded.

          'Sec. 5. That the postmasters shall be divided into four classes (based on annual compensation). * * *

          'See. 6. Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law; and postmasters of the fourth class shall be appointed and may be removed by the Postmaster General, by whom all appointments and removals shall be notified to the Auditor for the Post Office Department.'

          The President nominated and with consent of the Senate appointed Frank S. Myers first-class postmaster at Portland, Or., for four years, commencing July 21, 1917, and undertook to remove him February 3, 1920. The Senate has never approved the removal. Myers protested, asserted illegality of the order, refused to submit, and was ejected. He sued to recover the prescribed salary for the period between February 3, 1920, and July 21, 1921. Judgment must go against the United States unless the President acted within powers conferred by the Constitution.

          II. May the President oust at will all postmasters appointed with the Senate's consent for definite terms under an act which inhibits removal without consent of that body? May he approve a statute which creates an inferior office and prescribes restrictions on removal, appoint an incumbent, and then remove without regard to the restrictions? Has he power to appoint to an inferior office for a definite term under an act which prohibits removal except as therein specified, and then arbitrarily

Page 179

dismiss the incumbent and deprive him of the emoluments? I think there is no such power. Certainly it is not given by any plain words of the Constitution; and the argument advanced to establish it seems to me forced and unsubstantial.

          A certain repugnance must attend the suggestion that the President may ignore any provision of an act of Congress under which he has proceeded. He should promote and not subvert orderly government. The serious evils which followed the practice of dismissing civil officers as caprice or interest dictated, long permitted under congressional enactments, are known to all. It brought the public service to a low estate and caused insistent demand for reform. 'Indeed, it is utterly impossible not to feel, that, if this unlimited power of removal does exist, it may be made, in the hands of a bold and designing man, of high ambition and feeble principles, an instrument of the worst oppression and most vindictive vengenance.' Story on the Constitution, § 1539.

          During the notable Senate debate of 1835 (Debates, 23d Cong., 2d Sess.) experienced statesmen pointed out the very real dangers and advocated adequate restraint, through congressional action, upon the power which statutes then permitted the President to exercise.

          Mr. Webster declared (page 469):

          'I deem this degree of regulation, at least, necessary, unless we are willing to submit all these officers to an absolute and perfectly irresponsible removing power, a power which, as recently exercised, tends to turn the whole body of public officers into partisans, dependents, favorites, sycophants, and man-worshippers.'

          Mr. Clay asserted (Id. 515):

          'The power of removal, as now exercised, is nowhere in the Constitution expressly recognized. The only mode of displacing a public officer for which it does provide is by impeachment. But it has been argued on this occasion, that it is a sovereign power, an inherent power, and an executive power, and, there-

Page 180

          fore, that it belongs to the President. Neither the premises nor the conclusion can be sustained. If they could be, the people of the United States have all along totally misconceived the nature of their government, and the character of the office of their supreme magistrate. Sovereign power is supreme power; and in no instance whatever is there any supreme power vested in the President. Whatever sovereign power is, if there be any, conveyed by the Constitution of the United States, is vested in Congress, or in the President and Senate. The power to declare war, to lay taxes, to coin money, is vested in Congress; and the treaty-making power in the President and Senate. The Postmaster General has the power to dismiss his deputies. Is that a sovereign power or has he any?

          'Inherent power! That is a new principle to enlarge the powers of the general government. * * * The partisans of the executive have discovered a third and more fruitful source of power. Inherent power! Whence is it derived? The Constitution created the office of President, and made it just what it is. It had no powers prior to its existence. It can have none but those which are conferred upon it by the instrument which created it, or laws passed in pursuance of that instrument. Do gentlemen mean by inherent power, such power as is exercised by the monarchs or chief magistrates of other countries? If that be their meaning they should avow it.'

          And Mr. Calhoun argued (Id. 553):

          'Hear what that sacred instrument says: 'Congress shall have power * * * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers' (those granted to Congress itself) 'and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.' Mark the fullness of the expression. Congress shall have

Page 181

          power to make all laws, not only to carry into effect the powers expressly delegated to itself, but those delegated to the government or any department or officer thereof; and of course comprehends the power to pass laws necessary and proper to carry into effect the powers expressly granted to the executive department. It follows, of course, to whatever express grant of power to the executive the power of dismissal may be supposed to attach, whether to that of seeing the law faithfully executed, or to the still more comprehensive grant, as contended for by some, vesting executive powers in the President, the mere fact that it is a power appurtenant to another power, and necessary to carry it into effect, transfers it, by the provisions of the Constitution cited, from the executive to Congress, and places it under the control of Congress, to be regulated in the manner which it may judge best.'

          The long struggle for civil service reform and the legislation designed to insure some security of official tenure ought not to be forgotten. Again and again Congress has enacted statutes prescribing restrictions on removals, and by approving them many Presidents have affirmed its power therein.

          The following are some of the officers who have been or may be appointed with consent of the Senate under such restricting statutes:

          Members of the Interstate Commerce Commission, Board of General Appraisers, Federal Reserve Board, Federal Trade Commission, Tariff Commission, Shipping Board, Federal Farm Loan Board, Railroad Labor Board; officers of the Army and Navy; Comptroller General; Postmaster General and his assistants; Postmasters of the first, second, and third classes; judge of the United States Court for China; judges of the Court of Claims, established in 1855, the judges to serve 'during good behavior'; judges of territorial (statutory) courts; judges of the

Page 182

Supreme Court and Court of Appeals for the District of Columbia (statutory courts), appointed to serve 'during good behavior.' Also members of the Board of Tax Appeals provided for by the Act of February 26, 1926, to serve for 12 years, who 'shall be appointed by the President, by and with the advice and consent of the Senate, solely on the grounds of fitness to perform the duties of the office. Members of the board may be removed by the President, after notice and opportunity for public hearing, for inefficiency, neglect of duty, or malfeasance in office, but for no other cause.'

          Every one of these officers, we are now told in effect, holds his place subject to the President's pleasure or caprice.² And it is further said, that Congress cannot create any office to be filled through appointment by the President with consent of the Senate-except judges of the Supreme, Circuit and District (constitutional) courts-and exempt the incumbent from arbitrary dismissal. These questions press for answer; and thus the cause becomes of uncommon magnitude.

          III. Nothing short of language clear beyond serious disputation should be held to clothe the President with authority wholly beyond congressional control arbitrarily to dismiss every officer whom he appoints except a few judges. There are no such words in the Constitution, and the asserted inference conflicts with the heretofore accepted theory that this government is one of carefully enumerated powers under an intelligible charter.

          'This instrument contains an enumeration of powers expressly granted.' Gibbons v. Ogden, 9 Wheat. 1, 187, 6 L. Ed. 23.

          'Nor should it ever be lost sight of that the government of

Page 183

          the United States is one of limited and enumerated powers, and that a departure from the true import and sense of its powers is pro tanto the establishment of a new Constitution. It is doing for the people what they have not chosen to do for themselves. It is usurping the functions of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare, 'ita lex scripta est,' to follow, and to obey. Nor, if a principle so just and conclusive could be overlooked, could there well be found a more unsafe guide in practice than mere policy and convenience.' Story on the Constitution, § 426.

          If the phrase 'executive power' infolds the one now claimed, many others heretofore totally unsuspected may lie there awaiting future supposed necessity, and no human intelligence can define the field of the President's permissible activities. 'A masked battery of constructive powers would complete the destruction of liberty.'

          IV. Constitutional provisions should be interpreted with the expectation that Congress will discharge its duties no less faithfully than the executive will attend to his. The Legislature is charged with the duty of making laws for orderly administration obligatory upon all. It possesses supreme power over national affairs and may wreck as well as speed them. It holds the purse; every branch of the government functions under statutes which embody its will; it may impeach and expel all civil officers. The duty is upon it 'to make all laws which shall be necessary and proper for carrying into execution' all powers of the federal government. We have no such thing as three totally distinct and independent departments; the others must look to the legislative for direction and

Page 184

support. 'In republican government the legislative authority necessarily predominates.' The Federalist, XLVI, XVII. Perhaps the chief duty of the President is to carry into effect the will of Congress through such instrumentalities as it has chosen to provide. Arguments, therefore, upon the assumption that Congress may willfully impede executive action are not important.

          The Constitution provides:

          'Article 1, § 1. All legislative powers herein granted shall be vested in a Congress of the United States. * * *

          'Sec. 2. * * * The House of Representatives * * * shall have the sole power of impeachment.

          'Sec. 3. * * * The Senate shall have the sole power to try all impeachments. * * *

          'Sec. 8. The Congress shall have power * * * to establish post offices and post roads; * * * to raise and support armies * * *; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; * * * to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.'

          'Art. 2, § 1. The executive power shall be vested in a President of the United States. * * *

          'Sec. 2. The President shall be commander-in-chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States. He may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons, for offenses against the United States, except in cases of impeachment.

          'He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur; and he shall nomi-

Page 185

          nate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may, by law, vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

          'The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

          'Sec. 3. He shall, from time to time, give to the Congress information of the state of the Union; and recommend to their consideration such measures as he shall judge necessary and expedient. He may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. He shall receive ambassadors and other public ministers. He shall take care that the laws be faithfully executed; and shall commission all the officers of the United States.'

          'Art. 3, § 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. * * *

          'Sec. 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. * * *'

          V. For the United States it is asserted: Except certain judges, the President may remove all officers whether ex-

Page 186

ecutive or judicial appointed by him with the Senate's consent, and therein he cannot be limited or restricted by Congress. The argument runs thus: The Constitution gives the President all executive power of the national government, except as this is checked or controlled by some other definite provision; power to remove is executive and unconfined; accordingly, the President may remove at will. Further, the President is required to take care that the laws be faithfully executed; he cannot do this unless he may remove at will all officers whom he appoints; therefore he has such authority.

          The argument assumes far too much. Generally, the actual ouster of an officer is executive action; but to prescribe the conditions under which this may be done is legislative. The act of hanging a criminal is executive; but to say when and where and how he shall be hanged is clearly legislative. Moreover, officers may be removed by direct legislation; the act of 1820 hereafter referred to did this. 'The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose, or for the common defense, seem to comprise all the functions of the executive magistrate.' The Federalist, No. LXXIV.

          The Legislature may create post offices and prescribe qualifications, duties, compensation, and term. And it may protect the incumbent in the enjoyment of his term unless in some way restrained therefrom. The real question, therefore, comes to this: Does any constitutional provision definitely limit the otherwise plenary power of Congress over postmasters, when they are appointed by the President with the consent of the Senate? The question is not the much-mooted one whether the Senate is part of the appointing power under the Constitution and therefore must participate in removals.

          Here the restriction

Page 187

is imposed by statute alone and thereby made a condition of the tenure. I suppose that beyond doubt Congress could authorize the Postmaster General to appoint all postmasters and restrain him in respect of removals.

          Concerning the insistence that power to remove is a necessary incident of the President's duty to enforce the laws, it is enough now to say: The general duty to enforce all laws cannot justify infraction of some of them. Moreover, Congress, in the exercise of its unquestioned power, may deprive the President of the right either to appoint or to remove any inferior officer, by vesting the authority to appoint in another. Yet in that event his duty touching enforcement of the laws would remain. He must utilize the force which Congress gives. He cannot, without permission, appoint the humblest clerk or expend a dollar of the public funds.

          It is well to emphasize that our present concern is with the removal of an 'inferior officer,' within article 2, § 2, of the Constitution, which the statute positively prohibits without consent of the Senate. This is no case of mere suspension. The demand is for salary, and not for restoration to the service. We are not dealing with an ambassador, public minister, consul, judge, or 'superior officer.' Nor is the situation the one which arises when the statute creates an office without a specified term, authorizes appointment and says nothing of removal. In the latter event, under long-continued practice and supposed early legislative construction, it is now accepted doctrine that the President may remove at pleasure. This is entirely consistent with implied legislative assent; power to remove is commonly incident to the right to appoint when not forbidden by law. But there has never been any such usage where the statute prescribed restrictions. From its first session down to the last one Congress has consistently asserted its power to prescribe conditions concerning the removal of inferior officers. The executive

Page 188

has habitually observed them, and this court has affirmed the power of Congress therein.³

          VI. Some reference to the history of postal affairs will indicate the complete control which Congress has asserted over them with general approval by the executive.

          The Continental Congress (1775) established a post office and made Benjamin Franklin Postmaster General, 'with power to appoint such and so many deputies, as to him may seem proper and necessary.' Under the Articles of Confederation (1781) Congress again provided for a post office and Postmaster General, with 'full power and authority to appoint a clerk, or assistant to himself, and such and so many deputy postmasters as he shall think proper.' The first Congress under the Constitution (1789) directed:

          'That there shall be appointed a Postmaster General; his powers and salary, and the compensation to the assistant or clerk and deputies which he may appoint, and the regulations of the post office shall be the same as they last were under the resolutions and ordinances of the late Congress. The Postmaster General to be subject to the direction of the President of the United States in performing the duties of his office, and in forming contracts for the transportation of the mail.' 1 Stat. 70.

          The act of 1792 (1 Stat. 232, 234) established certain post roads, prescribed regulations for the Department,

Page 189

and continued in the Postmaster General sole power of appointment; but it omitted the earlier provision that he should 'be subject to the direction of the President of the United States in performing the duties of his office.'

          The Act of March 2, 1799 (1 Stat. 733) provided:

          'That there be established at the seat of Government of the United States, a General Post Office, under the direction of a Postmaster General. The Postmaster General shall appoint an assistant, and such clerks as may be necessary for performing the business of his office; he shall establish post offices, and appoint postmasters, at all such places as shall appear to him expedient, on the post roads that are or may be established by law.'

          This provision remained until 1836; and prior to that time all postmasters were appointed without designated terms and were subject to removal by the Postmaster General alone.

          In 1814 Postmaster General Granger appointed Senator Leib postmaster at Philadelphia, contrary to the known wishes of President Madison. Granger was removed; but Leib continued to hold his office.

          John Quincy Adams records in his Memoirs (January 5, 1822) that the President 'summoned an immediate meeting of the members of the administration, which was fully attended. It was upon the appointment of the postmaster at Albany.' A warm discussion arose, with much diversity of opinion concerning the propriety of the Postmaster General's request for the Presidents opinion concerning the proposed appointment. 'The President said he thought it very questionable whether he ought to interfere in the case at all.' Some members severely censured the Postmaster General for asking the President's opinion after having made up his own mind, holding it an attempt to shift responsibility. 'I said I did not see his conduct exactly in the same light. The law gave the appointment of all the postmasters exclusively

Page 190

to the Postmaster General; but he himself was removable from his own office at the pleasure of the President. Now Mr. Granger had been removed with disgrace by President Madison for appointing Dr. Leib postmaster at Philadelphia. Mr. Meigs, therefore, in determining to appoint General Van Rensselaer, not only exercised a right but performed a duty of his office; but, with the example of Mr. Granger's dismission before him, it was quite justifiable in him to consult the President's wish, with the declared intention of conforming to it. I thought I should have done the same under similar circumstances.'

          Act July 2, 1836, § 33 (5 Stat. 80, 87):

          'That there shall be appointed by the President of the United States, by and with the advice and consent of the Senate, a deputy postmaster for each post office at which the commissions allowed to the postmaster amounted to one thousand dollars or upwards in the year ending the thirtieth day of June, one thousand eight hundred and thirty-five, or which may, in any subsequent year, terminating on the thirtieth day of June, amount to or exceed that sum, who shall hold his office for the term of four years, unless sooner removed by the President.'

          This is the first act which permitted appointment of any postmaster by the President; the first also which fixed terms for them. It was careful to allow removals by the President, which otherwise, under the doctrine of Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60, would have been denied him. And by this legislation Congress itself terminated the services of postmasters who had been appointed to serve at will.

          The act of 1863 (12 Stat. 701) empowered the Postmaster General to appoint and commission all postmasters whose salary or compensation 'have been ascertained to be less than one thousand dollars.' In 1864 five distinct classes were created (13 Stat. 335); and the act of 1872, § 63 (17 Stat. 292) provided:

          'That postmasters of the fourth and fifth class shall be appointed and may be removed

Page 191

          by the Postmaster General, and all others shall be appointed and may be removed by the President, by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.'

          In 1874 (18 Stat. 231, 234) postmasters were divided into four classes according to compensation, and the statute directed that those 'of the first, second, and third classes shall be appointed and may be removed by the President, by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law; and postmasters of the fourth class shall be appointed and may be removed by the Postmaster General, by whom all appointments and removals shall be notified to the Auditor for the Post Office Department.' This language reappears in section 6, Act July 12, 1876, supra.

          On July 1, 1925, there were 50,957 postmasters; 35,758 were of the fourth class.

          For 47 years (1789 to 1836) the President could neither appoint nor remove any postmaster. The act which first prescribed definite terms for these officers authorized him to do both. Always it has been the duty of the President to take care that the postal laws 'be faithfully executed'; but there did not spring from this any illimitable power to remove postmasters.

          VII. The written argument for the United States by the former Solicitor General avers that it is based on this premise:

          'The President's supervision of the executive branch of the government, through the necessary power of removal, has always been recognized, and is now recognized, alike by considerations of necessity and the theory of government as an executive power, and is clearly indicated in the text of the Constitution, even though the

Page 192

          power of removal is not expressly granted.'

          A discourse proceeding from that premise helps only because it indicates the inability of diligent counsel to discover a solid basis for his contention. The words of the Constitution are enough to show that the framers never supposed orderly government required the President either to appoint or to remove postmasters. Congress may vest the power to appoint and remove all of them in the head of a department and thus exclude them from presidential authority. From 1789 to 1836 the Postmaster General exercised these powers, as to all postmasters (Story on the Constitution, § 1536), and the 35,000 in the fourth class are now under his control. For 40 years the President functioned and met his duty to 'take care that the laws be faithfully executed' without the semblance of power to remove any postmaster. So I think the supposed necessity and theory of government are only vapors.

          VIII. Congress has authority to provide for postmasters and prescribe their compensation, terms and duties. It may leave with the President the right to appoint them with consent of the Senate or direct another to appoint. In the latter event United States v. Perkins, 116 U. S. 483, 485, 6 S. Ct. 449, 29 L. Ed. 700, makes it clear that the right to remove may be restricted. But, so the argument runs, if the President appoints with consent of the Senate his right to remove cannot be abridged because article 2 of the Constitution vests in him the 'executive power,' and this includes an illimitable right to remove. The Constitution empowers the President to appoint ambassadors, other public ministers, consuls, judges of the Supreme Court and superior officers, and no statute can interfere therein. But Congress may authorize both appointment and removal of all inferior officers without regard to the President's wishes-even in direct opposition to them. This important distinction

Page 193

must not be overlooked. And consideration of the complete control which Congress may exercise over inferior officers is enough to show the hollowness of the suggestion that a right to remove them may be inferred from the President's duty to 'take care that the laws be faithfully executed.' He cannot appoint any inferior officer, however humble, without legislative authorization; but such officers are essential to execution of the laws. Congress may provide as many or as few of them as it likes. It may place all of them beyond the President's control; but this would not suspend his duty concerning faithful execution of the laws. Removals, however important, are not so necessary as appointments.

          IX. I find no suggestion of the theory that 'the executive power' of article 2, § 1, includes all possible federal authority executive in nature unless definitely excluded by some constitutional provision, prior to the wellknown House debate of 1789, when Mr. Madison seems to have given it support. A resolution looking to the establishment of an executive department-Department of Foreign Affairs (afterwards State)-provided for a secretary, 'who shall be appointed by the President by and with the advice and consent of the Senate and to be removable by the President.' Discussion arose upon a motion to strike out, 'to be removable by the President.' The distinction between superior and inferior officers was clearly recognized; also that the proposed officer was superior and must be appointed by the President with the Senate's consent. The bill prescribed no definite term-the incumbent would serve until death, resignation or removal. In the circumstances most of the speakers recognize the rule that where there is no constitutional or legislative restriction power to remove is incidental to that of appointment. Accordingly, they thought the

Page 194

President could remove the proposed officer; but many supposed he must do so with consent of the Senate. They maintained that the power to appoint is joint.

          Twenty-four of the fifty-four members spoke and gave their views on the Constitution and sundry matters of expediency. The record fairly indicates that nine, including Mr. Madison, thought the President would have the right to remove an officer serving at will under direct constitutional grant; three thought the Constitution did not and although Congress might it ought not to bestow such power; seven thought the Constitution did not and Congress could not confer it; five were of opinion that the Constitution did not, but that Congress ought to confer it. Thus, only nine members said anything which tends to support the present contention, and fifteen emphatically opposed it.

          The challenged clause, although twice formally approved, was finally stricken out upon assurance that a new provision (afterwards adopted) would direct disposition of the official records 'whenever the said principal officer shall be removed from office by the President of the United States or in any other case of vacancy.' This was susceptible of different interpretations and probably did not mean the same thing to all. The majority said nothing. The result of the discussion and vote was to affirm that the President held the appointing power with a right of negation in the Senate, and that, under the commonly accepted rule, he might remove without concurrence of the Senate when there was no inhibition by Constitution or statute. That the majority did not suppose they had assented to the doctrine under which the President could remove inferior officers contrary to an inhibition prescribed by Congress is shown plainly enough by the passage later in the same session of two acts containing provisions wholly inconsistent with any such idea. Acts of August 7, 1789, and September 24, 1789, infra.

Page 195

          Following much discussion of Mr. Madison's motion of May 19, a special committee reported this bill to the House on June 2. Debates upon it commenced June 16 and continued until June 24, when it passed by 29 to 22. The Senate gave it great consideration, commencing June 25, and passed it July 18. with amendments accepted by the House July 20. The Diary of President John Adams (Works (1851 Ed.) vol. 3, p. 412) states that the Senate voted 9 to 9 and that the deciding vote was given by the Vice President in favor of the President's power to remove. He also states that Senator Ellsworth strongly supported the bill and Senator Paterson voted for it. These senators were members of the committee which drafted the Judiciary Bill spoken of below.

          It seems indubitable that when the debate began Mr. Madison did not entertain the extreme view concerning illimitable presidential power now urged upon us, and it is not entirely clear that he had any very definite convictions on the subject when the discussion ended. Apparently this notion originated with Mr. Vining, of Delaware, who first advanced it on Mry 19. Considering Mr. Madison's remarks (largely argumentative) as a whole, they give it small, if any, support. Some of them, indeed are distinctly to the contrary. He was author of the provision that the Secretary shall 'be removable by the President'; he thought it 'safe and expedient to adopt the clause' and twice successfully resisted its elimination-May 19 and June 19. He said:

          'I think it absolutely necessary that the President should have the power of removing from office. * * * On the constitutionality of the declaration I have no manner of doubt.' 'He believed they (his opponents) would not assert, that any part of the Constitution declared that the only way to remove should be by impeachment; the contrary might be inferred, because Congress may establish offices by law;

Page 196

          therefore, most certainly, it is in the discretion of the Legislature to say upon what terms the office shall be held, either during good behavior or during pleasure.' 'I have, since the subject was last before the House, examined the Constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertain of it from the first glance. * * * I have my doubts whether we are not absolutely tied down to the construction declared in the bill. * * * If the Constitution is silent, and it is a power the Legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill.'⁴

Page 197

          Writing to Edmund Randolph, June 17, 1789, Mr. Madison pointed out the precise point of the debate. 'A very interesting question is started: By whom officers appointed during pleasure by the President and Senate are to be displaced.' And on June 21, 1789, he advised Edmund Pendleton of the discussion, stated the four opinions held by members, and said:

          'The last opinion

Page 198

          (the one he held) has prevailed, but is subject to various modifications, by the power of the Legislature to limit the duration of laws creating offices, or the duration of the appointments for filling them, and by the power over the salaries and appropriations.'

          Defending the Virginia Resolutions (of 1798) after careful preparation aided by long experience with national affairs, Mr. Madison emphasized the doctrine that

Page 199

the powers of the United States are 'particular and limited,' that the general phrases of the Constitution must not to so expounded as to destroy the particular enumerations explaining and limiting their meaning, and that latitudinous exposition would necessarily destroy the fundamental purpose of the founders. He continued to hold these general views. In his letters he clearly exposed the narrow point under consideration by the first Congress, also the modification to which his views were subject, and he supported, during the same session, the Judiciary Act and probably the Northwest Territory Act, which contained provisions contrary to the sentiment now attributed to him. It therefore seems impossible to regard what he once said in support of a contested measure as present authority for attributing to the executive those illimitable and undefinable powers which he thereafter reprobated. Moreover, it is the fixed rule that debates are not relied upon when seeking the meaning or effect of statutes.

          But, if it were possible to spell out of the debate and action of the first Congress on the bill to establish the Department of Foreign Affairs some support for the present claim of the United States, this would be of little real consequence, for the same Congress on at least two occasions took the opposite position, and time and time again subsequent Congresses have done the same thing. It would be amazing for this court to base the interpretation of a constitutional provision upon a single doubtful congressional interpretation, when there have been dozens of them extending through 135 years, which are directly to the contrary effect.

          Following the debate of 1789 it became the commonly approved view that the Senate is not a part of the appointing power; also it became accepted practice that the President might remove at pleasure all officers appointed by him when neither Constitution nor statute

Page 200

prohibited by prescribing a fixed term or otherwise. Prior to 1820 very few officers held for definite terms; generally they were appointed to serve at pleasure, and Mr. Madison seems always to have regarded this as the proper course. He emphatically disapproved the act of 1820, which prescribed such terms, and even doubted its constitutionality. Madison's Writings (1865 Ed.) vol. 3, p. 196. It was said that:

          'He thought the tenure of all subordinate executive officers was necessarily the pleasure of the chief by whom they were commissioned. If they could be limited by Congress to four years, they might to one-to a month-to a day-and the executive power might thus be annihilated.' Diary, John Quincy Adams (1875 Ed.) vol. VII, p. 425.

          During the early administrations removals were infrequent and for adequate reasons. President Washington removed ten officers; President John Adams, eight.

          Complying with a resolution of March 2, 1839, President Van Buren sent to the House of Representatives, March 13, 1840, 'a list of all (civil) officers of the government deriving their appointments from the nomination of the President and concurrence of the Senate whose commissions are recorded in the Department of State and who have been removed from office since the 3d of March, 1789.' Document No. 132, 26th Cong., 1st Sess. Two hundred and eight had been removed, and, after a somewhat careful survey of the statutes, I think it true to say, that not one of these removals had been inhibited by Congress. On the contrary all were made with its consent, either implied from authorization of the appointment for service at pleasure or indicated by express words of the applicable statute. The act of 1789 authorized appointment of marshals for four years, removable at pleasure. The act of 1820 established definite terms for many officers, but directed that they 'shall be removable from office at pleasure.' The act of 1836 prescribed

Page 201

fixed terms for certain postmasters and expressly provided for removals by the President.

          A summary of the reported officers with commissions in the State Department who were removed, with the number in each class, is in the margin.⁵ The Secretary of the Treasury reported that 24 officers in that department had been removed 'since the burning of the Treasury Building in 1833.' The Postmaster General reported that 13 postmasters appointed by the President had been dismissed (prior to 1836 all postmasters were appointed by the Postmaster General; after that time the President had express permission to dismiss those whom he appointed). Nine Indian Agents were removed. One hundred and thirty-nine commissioned officers of the army and 22 of the navy were removed. I find no restriction by Congress on the President's right to remove any of these officers. See Wallace v. United States, 257 U. S. 541, 42 S. Ct. 221, 66 L. Ed. 360.

          Prior to the year 1839, no President engaged in the practice of removing officials contrary to congressional di-

Page 202

rection. There is no suggestion of any such practice which originated after that date.

          Rightly understood, the debate and act of 1789 and subsequent practice afford no support to the claim now advanced. In Marbury v. Madison, supra, this court expressly repudiated it, and that decision has never been overruled. On the contrary, Shurtleff v. United States, 189 U. S. 311, 23 S. Ct. 535, 47 L. Ed. 828, clearly recognizes the right of Congress to impose restrictions.

          Concerning the legislative and practical construction following this debate Mr. Justice Story wrote (1833):

          'It constitutes perhaps the most extraordinary case in the history of the government of a power, conferred by implication on the executive by the assent of a bare majority of Congress, which has not been questioned on many other occasions. * * * Whether the predictions of the original advocates of the executive power, or those of the opposers of it, are likely, in the future progress of the government, to be realized, must be left to the sober judgment of the community, and to the impartial award of time. If there has been any aberration from the true constitutional exposition of the power of removal (which the reader must decide for himself), it will be difficult, and perhaps impracticable, after forty years' experience, to recall the practice to the correct theory. But, at all events, it will be a consolation to those who love the Union, and honor a devotion to the patriotic discharge of duty, that in regard to 'inferior officers' (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government), the remedy for any permanent abuse is still within the power of Congress, by the simple expedient of requiring the consent of the Senate to removals in such cases.' Story on the Constitution, §§ 1543, 1544.

          Writing in 1826 (309, 310) Chancellor Kent affirmed:

          'The act (the Judiciary Act of September 24, 1789, § 27 (1 Stat. 87))

Page 203

          says that the marshal shall be removable at pleasure, without saying by whom; and on the first organization of the government, it was made a question whether the power of removal, in cases of officers appointed to hold at pleasure, resided anywhere but in the body which appointed, and of course whether the consent of the Senate was not requisite to remove. This was the construction given to the Constitution while it was pending for ratification before the state conventions, by the author of The Federalist. * * * But the construction which was given to the Constitution by Congress, after great consideration and discussion, was different. In the act for establishing the Treasury Department, the Secretary was contemplated as being removable from office by the President. The words of the act are, 'That whenever the Secretary shall be removed from office by the President of the United States, or in any other case of vacancy in the office, the assistant shall act,' etc. This amounted to a legislative construction of the Constitution, and it has ever since been acquiesced in and acted upon, as of decisive authority in the case. It applies equally to every other officer of government appointed by the President and Senate, whose term of duration is not specially declared.'

          These great expounders had no knowledge of any practical construction of the Constitution sufficient to support the theory here advanced. This court knew nothing of it in 1803 when it decided Marbury v. Madison; and we have the assurance of Mr. Justice McLean (United States v. Guthrie, 17 How. 284, 305, 15 L. Ed. 102) that it adhered to the view there expressed so long as Chief Justice Marshall lived. And neither Calhoun, nor Clay, nor Webster knew of any such thing during the debate of 1835, when they advocated limitation, by further legislation, of powers granted to the President by the act of 1820.

          If the remedy suggested by Mr. Justice Story and long supposed to be efficacious should prove to be valueless,

Page 204

I suppose Congress may enforce its will by empowering the courts or heads of departments to appoint all officers except representatives abroad, certain judges, and a few 'superior' officers-members of the cabinet. And in this event the duty to 'take care that the laws be faithfully executed' would remain, notwithstanding the President's lack of control. In view of this possibility, under plain provisions of the Constitution, it seems useless, if not, indeed, presumptuous, for courts to discuss matters of supposed convenience or policy when considering the President's power to remove.

          X. Congress has long and vigorously asserted its right to restrict removals and there has been no common executive practice based upon a contrary view. The President has often removed, and it is admitted that he may remove, with either the express or implied assent of Congress; but the present theory is that he may override the declared will of that body. This goes far beyond any practice heretofore approved or followed; it conflicts with the history of the Constitution, with the ordinary rules of interpretation, and with the construction approved by Congress since the beginning and emphatically sanctioned by this court. To adopt it would be revolutionary.

          The Articles of Confederation contained no general grant of executive power.

          The first Constitutions of the states vested in a Governor or President, sometimes with and sometimes without a council, 'the executive power,' 'the supreme executive power;' but always in association with carefully defined special grants, as in the federal Constitution itself. They contained no intimation of executive powers except those definitely enumerated or necessarily inferred therefrom of from the duty of the executive to enforce the laws. Speaking in the Convention, July 17,

Page 205

          Mr. Madison said:

          'The executives of the states are in general little more than cyphers; the Legislatures omnipotent.'

          In the proceedings of the Constitutional Convention no hint can be found of any executive power except those definitely enumerated or inferable therefrom of from the duty to enforce the laws. In the notes of Rufus King (June 1) upon the convention, this appears:

          'Wilson-an extive. ought to possess the powers of secresy, vigour & Dispatch-and to be so constituted as to be responsible-Extive. powers are designed for the execution of Laws, and appointing Officers not otherwise to be appointed-if appointments of Officers are made by a sing. Ex he is responsible for the propriety of the same. Not so where the Executive is numerous.

          'Mad: agrees wit. Wilson in his definition of executive powers-executive powers ex vi termini, do not include the Rights of war & peace &c. but the powers shd. be confined and defined-if large we shall have the Evils of elective Monarchies-probably the best plan will be a single Executive of long duration wth. a Council, with liberty to depart from their Opinion at his peril.'-Farrand, Records Fed. Con. v. 1, p. 70.

          If the Constitution or its proponents had plainly avowed what is now contended for there can be little doubt that it would have been rejected.

          The Virginia plan, when introduced, provided:

          'That a national executive be instituted; to be chosen by the national legislature for the term of ___ years, to receive punctually at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made so as to affect the magistracy, existing at the time of increase or diminution, and to be ineligible a second time; and that besides a general authority to execute the national laws, it ought to enjoy the executive rights vested in Congress by the Confederation.

Page 206

          'That the executive and a convenient number of the national judiciary, ought to compose a council of revision with authority to examine every act of the national legislature before it shall operate, and every act of a particular legislature before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by ___ of the members of each branch.'

          This provision was discussed and amended. When reported by the committee of the whole and referred to the committee on detail, June 13, it read thus:

          'Resolved, that a national executive be instituted to consist of a single person, to be chosen by the national legislature for the term of seven years, with power to carry into execution the national laws, to appoint to offices in cases not otherwise provided for-to be ineligible a second time, and to be removable on impeachment and conviction of malpractices or neglect of duty-to receive a fixed stipend by which he may be compensated for the devotion of his time to public service to be paid out of the national treasury. That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed unless by two-thirds of each branch of the national legislature.'

          The committee on detail reported:

          'Sec. 1. The executive power of the United States shall be vested in a single person,' etc.

          This was followed by section 2 with the clear enumeration of the President's powers and duties. Among them were these:

          'He shall from time to time give information to the Legislature of the state of the Union. * * * He shall take care that the laws of the United States be duly and faithfully executed. * * * He shall receive ambassadors. * * * He shall be commander-in-chief of the Army and Navy.'

          Many of these

Page 207

were taken from the New York Constitution. After further discussion the enumerated powers were somewhat modified, and others were added, among them (September 7) the power 'to call for the opinions of the heads of departments, in writing.'

          It is beyond the ordinary imagination to picture 40 or 50 capable men, presided over by George Washington, vainly discussing, in the heat of a Philadelphia summer, whether express authority to require opinions in writing should be delegated to a President in whom they had already vested the illimitable executive power here claimed.

          The New Jersey plan:

          'That the United States in Congress be authorized to elect a federal executive to consist of ___ persons, to continue in office for the term or ___ years, to receive punctually at stated times a fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons composing the executive at the time of such increase or diminution, to be paid out of the federal treasury; to be incapable of holding any other office or appointment during their time of service and for ___ years thereafter; to be ineligible a second time, and removable by Congress on application by a majority of the executives of the several States; that the executives besides their general authority to execute the federal acts ought to appoint all federal officers not otherwise provided for, and to direct all military operations; provided that none of the persons composing the federal executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as general or in other capacity.'

          The sketch offered by Mr. Hamilton:

          'The supreme executive authority of the United States to be vested in a governor to be elected to serve during good behavior-the election to be made by electors chosen by the people in the election districts aforesaid-the au-

Page 208

          thorities and functions of the executive to be as follows: to have a negative on all laws about to be passed, and the execution of all laws passed; to have the direction of war when authorized or begun; to have with the advice and approbation of the Senate the power of making all treaties; to have the sole appointment of the heads or chief officers of the Departments of Finance, War and Foreign Affairs; to have the nomination of all other officers (ambassadors to foreign nations included) subject to the approbation or rejection of the Senate; to have the power of pardoning all offences except treason; which he shall not pardon without the approbation of the Senate.'

          XI. The Federalist, Article LXXVI, by Mr. Hamilton, says:

          'It has been mentioned as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the administration. The consent of that body would be necessary to displace as well as to appoint. A change of the Chief Magistrate, therefore, would not occasion so violent or so general a revolution in the officers of the government as might be expected, if he were the sole disposer of offices. Where a man in any station had given satisfactory evidence of his fitness for it, a new President would be restrained from attempting a change in favor of a person more agreeable to him, by the apprehension that a discountenance of the Senate might frustrate the attempt, and bring some degree of discredit upon himself. Those who can best estimate the value of a steady administration will be most disposed to prize a provision, which connects the official existence of public men with the approbation or disapprobation of that body, which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.'

Page 209

          XII. Since the debate of June, 1789, Congress has repeatedly asserted power over removals; this court has affirmed the power, and practices supposed to be impossible have become common.

          Mr. Madison was much influenced by supposed expediency, the impossibility of keeping the Senate in constant session, etc.; also the extraordinary personality of the President. He evidently supposed it would become common practice to provide for officers without definite terms, to serve until resignation, done until 1820. The office under discussion doen until 1820. The office under discussion was a superior one, to be filled only by presidential appointment. He assumed as obviously true things now plainly untrue and was greatly influenced by them. He said:

          'The danger then consists merely in this: The President can displace from office a man whose merits require that he should be continued in it. What will be the motives which the President can feel for such abuse of his power, and the restraints that operate to prevent it? In the first place, he will be impeachable by this House, before the Senate for such an act of maladministration; for I contend that the wanton removal of meritorious officers would subject him to impeachment and removal from his own high trust. But what can be his motives for displacing a worthy man? It must be that he may fill the place with an unworthy creature of his own. * * * Now if this be the case with an hereditary monarch, possessed of those high prerogatives and furnished with so many means of influence, can we suppose a President, elected for four years only, dependent upon the popular voice, impeachable by the Legislature, little, if at all, distinguished for wealth, personal talents, or influence from the head of the department himself; I say, will he bid defiance to all these considerations, and wantonly dismiss a meritorious and virtuous officer?

Page 210

          Such abuse of power exceeds my conception. If anything takes place in the ordinary course of business of this kind, my imagination cannot extend to it on any rational principle.'

          We face as an actuality what he thought was beyond imagination and his argument must now be weighed accordingly. Evidently the sentiments which he then apparently held came to him during the debate and were not entertained when he left the Constitutional Convention, nor during his later years. It seems fairly certain that he never consciously advocated the extreme view now attributed to him by counsel. His clearly stated exceptions to what he called the prevailing view and his subsequent conduct repel any such idea.

          By an Act approved August 7, 1789 (chapter 8, 1 Stat. 50, 53) Congress provided for the future government of the Northwest Territory, originally organized by the Continental Congress. This statute directed:

          'The President shall nominate, and by and with the advice and consent of the Senate, shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled, and all officers so appointed shall be commissioned by him; and in all cases where the United States in Congress assembled, might, by the said ordinance, revoke any commission or remove from any office, the President is hereby declared to have the same powers of revocation and removal.'

          The Ordinance of 1787 authorized the appointment by Congress of a Governor, 'whose commission shall continue in force for the term of three years, unless sooner revoked by Congress,' a secretary, 'whose commission shall continue in force for four years, unless sooner revoked,' and three judges, whose 'commissions shall continue in force during good behavior.' These were not constitutional judges. American Insurance Co. v. Canter, 1 Pet. 511, 7 L. Ed. 242. Thus Congress, at its first session, inhibited removal of judges

Page 211

and assented to removal of the first civil officers for whom it prescribed fixed terms. It was wholly unaware of the now-supposed construction of the Constitution which would render these provisions improper. There had been no such construction; the earlier measure and debate related to an officer appointed by legislative consent to serve at will, and whatever was said must be limited to that precise point.

          On August 18, 1789, the President nominated, and on the twentieth the Senate 'did advise and consent' to the appointment of the following officers for the territory: Arthur St. Clair, Governor; Winthrop Sargent, secretary; Samuel Holden Parsons, John Cleves Symmes, and William Barton, judges of the court.

          The bill for the Northwest Territory was a House measure, framed and presented July 16, 1789, by a special committee of which Mr. Sedgwick, of Massachusetts, was a member, and passed July 21 without roll call. The Senate adopted it August 4. The debate on the bill to create the Department of Foreign Affairs must have been fresh in the legislative mind, and it should be noted that Mr. Sedgwick had actively supported the power of removal when that measure was up.

          The Act of September 24, 1789 (chapter 20, § 27, 1 Stat. 73, 87), provided for another civil officer with fixed term:

          'A marshal shall be appointed in and for each district for the term of four years, but shall be removable from office at pleasure, whose duty it shall be,' etc.

          This act also provided for district attorneys and an Attorney General without fixed terms and said nothing of removal. The Legislature must have understood that, if an officer be given a fixed term and nothing is said concerning removal, he acquires a vested right to the office for the full period; also that officers appointed without definite terms were subject to removal by the President at will, assent of Congress being implied.

Page 212

          This bill was a Senate measure, prepared by a committee of which Senators Ellsworth and Paterson were members and introduced June 12. It was much considered between June 22 and July 17, when it passed the Senate 14 to 6. During this same period the House bill to create the Department of Foreign Affairs was under consideration by the Senate, and Senators Ellsworth and Paterson both gave it support. The Judiciary Bill went to the House July 20, and there passed September 17. Mr. Madison supported it.

          If the theory of illimitable executive power now urged is correct, then the acts of August 7 and September 24 contained language no less objectionable than the original phrase in the bill to establish the Department of Foreign Affairs over which the long debate arose. As nobody objected to the provisions concerning removals and life tenure in the two later acts it seems plain enough that the First Congress never entertained the constitutional views now advanced by the United States. As shown by Mr. Madison's letter to Edmund Randolph, supra, the point under discussion was the power to remove officers appointed to serve at will. Whatever effect is attributable to the action taken must be confined to such officers.

          Congress first established courts in the District of Columbia by the Act of February 27, 1801, c. 15, 2 Stat. 103. This authorized three judges to be appointed by the President, with consent of the Senate, 'to hold their respective offices during good behavior.' The same tenure has been bestowed on all subsequent superior District of Columbia judges. The same act also provided for a marshal, to serve during four years, subject to removal at pleasure; for a district attorney without definite term, and 'such number of discreet persons to be justices of the peace, as the President of the United States shall from time to time think expedient, to con-

Page 213

tinue in office five years.' Here, again, Congress undertook to protect inferior officers in the District from executive interference, and the same policy has continued down to this time. See Act of February 9, 1893, c. 74 (27 Stat. 434).

          The acts providing 'for the government of the territory of the United States south of the river Ohio' (1790), and for the organization of the territories of Indiana (1800), Illinois (1809), and Michigan (1805), all provided that the government should be similar to that established by the Ordinance of 1787 for the Northwest Territory. Judges for the Northwest Territory were appointed for life.

          The act establishing the territorial government of Wisconsin (1836) directed:

          'That the judicial power of the said Territory shall be vested in a Supreme Court, district courts, probate courts, and in justices of the peace. The Supreme Court shall consist of a chief justice and two associate judges, any two of whom shall be a quorum, and who shall hold a term at the seat of government of the said territory annually, and they shall hold their offices during good behavior.'

          The organization acts for the territories of Louisiana (1804), Iowa (1838), Minnesota (1849), New Mexico (1850), Utah (1850), North Dakota (1861), Nevada (1861), Colorado (1861), and Arizona (1863) provided for judges 'to serve for four years.' Those for the organization of Oregon (1848), Washington (1853), Kansas (1854), Nebraska (1854), Idaho (1863), Montana (1864), Alaska (1884), Indian Territory (1889), and Oklahoma (1890) provided for judges 'to serve for four years, and until their successors shall be appointed and qualified.' Those for Missouri (1812), Arkansas (1819), Wyoming (1868), Hawaii (1900), and Florida (1822) provided that judges should be appointed to serve 'four years unless sooner removed,' 'four years unless sooner removed by

Page 214

the President,' 'four years unless sooner removed by the President with the consent of the Senate of the United States,' 'who shall be citizens of the Territory of Hawaii and shall be appointed by the President of the United States by and with the advice and consent of the Senate of the United States, and may be removed by the President,' and 'for the term of four years and no longer.'

          May 15, 1820, President Monroe approved the first general Tenure of Office Act (chapter 102, 3 Stat. 582). It directed:

          'All district attorneys, collectors of the customs, naval officers and surveyors of the customs, navy agents, receivers of public moneys for lands, registers of the land offices, paymasters in the army, the apothecary general, the assistant apothecaries general, and the commissary general of purchases, to be appointed under the laws of the United States, shall be appointed for the term of four years, but shall be removable from office at pleasure. (Prior to this time these officers were appointed without term to serve at will.)

          'Sec. 2. * * * The commission of each and every of the officers named in the first section of this act, now in office, unless vacated by removal from office, or otherwise, shall cease and expire in the manner following: All such commissions, bearing date on or before the thirtieth day of September, one thousand eight hundred and fourteen, shall cease and expire on the day and month of their respective dates, which shall next ensue after the thirtieth day of September next; all such commissions, bearing date after the said thirtieth day of September, in the year one thousand eight hundred and fourteen, and before the first day of October, one thousand eight hundred and sixteen, shall cease and expire on the day and month of their respective dates, which shall next ensue after the thirtieth day of September, one thousand eight hundred and twenty-one. And all other such commissions shall cease

Page 215

          and expire at the expiration of the term of four years from their respective dates.'

          Thus Congress not only asserted its power of control by prescribing terms and then giving assent to removals, but it actually removed officers who were serving at will under presidential appointment with consent of the Senate. This seems directly to conflict with the notion that removals are wholly executive in their nature.

          XIII. The claim advanced for the United States is supported by no opinion of this court, and conflicts with Marbury v. Madison (1803), supra, concurred in by all, including Mr. Justice Paterson, who was a conspicuous member of the Constitutional Convention and, as Senator from New Jersey, participated in the debate of 1789 concerning the power to remove and supported the bill to establish the Department of Foreign Affairs.

          By an original proceeding here Marbury sought a mandamus requiring Mr. Madison, then Secretary of State, to deliver a commission signed by President Adams which showed his appointment (under the Act of February 27, 1801) as justice of the peace for the District of Columbia, 'to continue in office five years.' The act contained no provision concerning removal.⁶ As required by the circumstances, the court first considered Marbury's right to demand the commission and affirmed it. Mr. Chief Justice Marshall said:

          'It is therefore decidedly the opinion of the court that, when a commission has been signed by the President,

Page 216

          the appointment is made, and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State.

          'Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern, because the act is at any time revocable, and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.

          'The discretion of the executive is to be exercised until the appointment has been made. But, having once made the appointment, his power over the office is terminated in all cases where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

          'Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. (This freedom from executive interference had been affirmed by Representative Bayard in February, 1802, during the debate on repeal of the Judiciary Act of 1801.)

          'To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. * * *

          'The office of justice of peace in the District of Columbia is such an office (of trust, honor or profit). * * * It has been created by special act of Congress, and has been secured, so far as the laws can give security to the person appointed to fill it, for five years. * * *

Page 217

          'It is then the opinion of the court, first, that by signing the commission of Mr. Marbury the President of the United States appointed him a justice of peace for the county of Washington in the District of Columbia, and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment, and that the appointment conferred on him a legal right to the office for the space of five years. * * *

          'It has already been stated that the applicant has to that commission a vested legal right, of which the executive cannot deprive him. He has been appointed to an office, from which he is not removable at the will of the executive, and, being so appointed, he has a right to the commission which the Secretary has received from the President for his use.'

          The point thus decided was directly presentedand essential to proper disposition of the cause. If the doctrine now advanced had been approved, there would have been no right to protect, and the famous discussion and decision of the great constitutional question touching the power of the court to declare an act of Congress without effect would have been wholly out of place. The established rule is that doubtful constitutional problems must not be considered, unless necessary to determination of the cause. The sometime suggestion that the Chief Justice indulged an obiter dictum is without foundation. The court must have appreciated that, unless it found Marbury had the legal right to occupy the office irrespective of the President's will, there would be no necessity for passing upon the much-controverted and farreaching power of the judiciary to declare an act of Congress without effect. In the circumstances then existing it would have been peculiarly unwise to consider the second and more important question without first demonstrating the necessity therefor by ruling upon the first. Both points

Page 218

were clearly presented by the record, and they were decided in logical sequence. Cooley's Constitutional Limitations (7th Ed.) 231.⁷

          But, assuming that it was unnecessary in Marbury v. Madison to determine the right to hold the office, nevertheless this court deemed it essential and decided it. I cannot think this opinion is less potential than Mr. Madison's argument during a heated debate concerning an office without prescribed tenure.

          This opinion shows clearly enough why Congress, when it directed appointment of marshals for definite terms by the act of 1789, also took pains to authorize their removal. The specification of a term, without more, would have prevented removals at pleasure.

          We are asked by the United States to treat the definite holding in Marbury v. Madison that the plaintiff was not subject to removal by the President at will as mere dictum-to disregard it. But a solemn adjudication by this court may not be so lightly treated. For 120 years that case has been regarded as among the most important ever decided. It lies at the very foundation of our jurisprudence. Every point determined was deemed essential, and the suggestion of dictum, either idle or partisan exhortation, ought not to be tolerated. The point here involved was directly passed upon by the great Chief Justice, and we must accept the result, unless prepared to express direct disapproval and exercise the transient power which we possess to overrule our great predecessors; the opinion cannot be shunted.

          At the outset it became necessary to determine whether Marbury had any legal right which could, prima facie at least, create a justiciable or actual case arising under the laws of the United States. Otherwise, there would have

Page 219

been nothing more than a moot cause, the proceeding would have been upon an hypothesis, and he would have shown no legal right whatever to demand an adjudication on the question of jurisdiction and constitutionality of the statute. The court proceeded upon the view that it would not determine an important and far-reaching constitutional question unless presented in a properly justiciable cause by one asserting a clear legal right susceptible of protection. It emphatically declared, not by way of argument or illustration, but as definite opinion, that the appointment of Marbury 'conferred on him a legal right to the office for the space of five years,' beyond the President's power to remove, and, plainly on this premise, it thereupon proceeded to consider the grave constitutional question. Indeed, if Marbury had failed to show a legal right to protect or enforce, it could be urged that the decision as to invalidity of the statute lacked force as a precedent, because rendered upon a mere abstract question raised by a moot case. The rule has always been cautiously to avoid passing upon important constitutional questions, unless some controversy properly presented requires their decision.

          The language of Mr. Justice Matthews in Liverpool, etc., Steamship Co. v. Commissioners of Emigration, 113 U. S. 33, 39, 5 S. Ct. 352, 355 (28 L. Ed. 899), is pertinent:

          'If, on the other hand, we should assume the plaintiff's case to be within the terms of the statute, we should have to deal with it purely as an hypothesis, and pass upon the constitutionality of an act of Congress as an abstract question. That is not the mode in which this court is accustomed or willing to consider such questions. It has no jurisdiction to pronounce any statute, either of a state or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two

Page 220

          rules, to which it has rigidly adhered-one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully.'

          Also the words of Mr. Justice Brewer in Union Pacific R. Co. v. Mason City, etc., Co., 199 U. S. 160, 166, 26 S. Ct. 19, 20 (50 L. Ed. 134):

          'Of course, where there are two grounds, upon either of which the judgment of the trial court can be rested, and the appellate court sustains both, the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other. Whenever a question fairly arises is the course of a trial, and there is a distinct decision of that question, the ruling of the court in respect thereto can, in no just sense, be called mere dictum. Railroad Companies v. Schutte, 103 U. S. 118 (26 L. Ed. 327), in which this court said (page 143): 'It cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the regular course of the consideration of the cause, something else was found in the end which disposed of the whole matter. Here the precise question was properly presented, fully argued and elaborately considered in the opinion. The decision on this question was as much a part of the judgment of the court as was that on any other of the several matters on which the case as a whole depended."

          And see Chicago, etc., Railway Co. v. Wellman, 143 U. S. 339, 345, 12 S. Ct. 400, 36 L. Ed. 176; United States v. Chamberlin, 219 U. S. 250, 262, 31 S. Ct. 155, 55 L. Ed. 204; United States v. Title Insurance Co., 265 U. S. 472, 486, 44 S. Ct. 621, 68 L. Ed. 1110; Watson v. St. Louis, etc., Ry. Co. (C. C.) 169 F. 942, 944, 945.

          Although he was intensely hostile to Marbury v. Madison, and refused to recognize it as authoritative, I do not find that Mr. Jefferson ever controverted the view

Page 221

that an officer duly appointed for definite time, without more, held his place free from arbitrary removal by the President. If there had been any generally accepted opinion or practice under which he could have dismissed such an officer, as now claimed, that cause would have been a rather farcical proceeding, with nothing substantial at issue, since the incumbent could have been instantly removed. And, assuming such doctrine, it is hardly possible that Mr. Jefferson would have been ignorant of the practical way to end the controversy-a note of dismissal or removal. Evidently he knew nothing of the congressional interpretation and consequent practice here insisted on. And this, notwithstanding Mr. Madison sat at his side.

          Mr. Jefferson's letters to Spencer Roane (1819) and George Hay (1807) give his views:

          'In the case of Marbury and Madison, the federal judges declared that commissions, signed and sealed by the President, were valid, although not delivered. I deemed delivery essential to complete a deed, which, as long as it remains in the hands of the party, is as yet no deed; it is in posse only, but not in esse, and I withheld delivery of the commissions.'

          I think it material to stop citing Marbury v. Madison as authority, and have it denied to be law:

          '(1) Because the judges, in the outset, disclaimed all cognizance of the case, although they then went on to say what would have been their opinion, had they had cognizance of it. This, then, was confessedly an extrajudicial opinion, and, as such, of no authority. (2) Because, had it been judicially pronounced, it would have been against law; for to a commission, a deed, a bond, delivery is essential to give validity. Until, therefore, the commission is delivered out of the hands of the executive and his agents, it is not his deed.'

          The judges did not disclaim all cognizance of the cause; they were called upon to determine the questions

Page 222

irrespective of the result reached; and, whether rightly or wrongly, they distinctly held that actual delivery of the commission was not essential. That question does not now arise; here the commission was delivered and the appointee took office.

          Ex parte Hennen (1839) 13 Pet. 230, 258 (10 L. Ed. 136), involved the power of a United States District Judge to dismiss at will the clerk whom he had appointed. Mr. Justice Thompson said:

          'The Constitution is silent with respect to the power of removal from office, where the tenure is not fixed. It provides that the judges, both of the Supreme and inferior courts, shall hold their offices during good behavior. But no tenure is fixed for the office of clerks. Congress has by law (3 U. S. Stat. 582) limited the tenure of certain officers to the term of four years (3 Story, 1790), but expressly providing that the officers shall, within that term, be removable at pleasure, which, of course, is without requiring any cause for such removal. The clerks of courts are not included within this law, and there is no express limitation in the Constitution, or laws of Congress, upon the tenure of the office.

          'All offices, the tenure of which is not fixed by the Constitution, or limited by law, must be held either during good behavior, or (which is the same thing in contemplation of law) during the life of the incumbent, or must be held at the will and discretion of some department of the government, and subject to removal at pleasure.

          'It cannot, for a moment, be admitted, that it was the intention of the Constitution that those offices which are denominated inferior offices should be held during life; and, if removable at pleasure, by whom is such removal to be made. In the absence of all constitutional provision or statutory regulation, it would seem to be a sound and necessary rule to consider the power of removal as incident to the power of appointment. This power of

Page 223

          removal from office was a subject much disputed, and upon which a great diversity of opinion was entertained, in the early history of this government. This related, however, to the power of the President to remove officers appointed with the concurrence of the Senate; and the great question was whether the removal was to be by the President alone, or with the concurrence of the Senate, both constituting the appointing power. No one denied the power of the President and Senate, jointly, to remove, where the tenure of the office was not fixed by the Constitution, which was a full recognition of the principle that the power of removal was incident to the power of appointment. But it was very early adopted, as the practical construction of the Constitution, that this power was vested in the President alone. And such would appear to have been the legislative construction of the Constitution. * * *

          'It would be a most extraordinary construction of the law that all these offices were to be held during life, which must inevitably follow, unless the incumbent was removable at the discretion of the head of the department; the President has certainly no power to remove. These clerks fall under that class of inferior officers, the appointment of which the Constitution authorizes Congress to vest in the head of the department. The same rule, as to the power of removal, must be applied to offices where the appointment is vested in the President alone. The nature of the power, and the control over the officer appointed, does not at all depend on the source from which it emanates. The execution of the power depends upon the authority of law, and not upon the agent who is to administer it. And the Constitution has authorized Congress, in certain cases, to vest this power in the President alone, in the courts of law, or in the heads of departments; and all inferior officers appointed under each, by authority of law, must hold their office at the discretion

Page 224

          of the appointing power. Such is the settled usage and practical construction of the Constitution and laws under which these offices are held.'

          United States v. Guthrie (1854) 17 How. 284, 15 L. Ed. 102, Goodrich had been removed from the office of Chief Justice of the Supreme Court, territory of Minnesota, to which he had been appointed to serve 'during the period of four years.' He sought to recover salary for the time subsequent to removal through a mandamus to the Secretary of the Treasury. The court held this was not a proper remedy, and did not consider whether the President had power to remove a territorial judge appointed for a fixed term. The reported argument of counsel is enlightening; the dissenting opinion of Mr. Justice McLean is important. He points out that only two territorial judges had been removed-the plaintiff Goodrich, in 1851, and William Trimble, May 20, 1830. The latter was judge of the superior court of the territory of Arkansas, appointed to 'continue in office for the term of four years, unless sooner removed by the President.'

          United States ex rel. Bigler v. Avery (1867) Fed. Cas. No. 14,481. This opinion contains a valuable discussion of the general doctrine here involved.

          United States v. Perkins (1886) 116 U. S. 483, 485, 6 S. Ct. 449, 450 (29 L. Ed. 700), held that:

          'When Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.'

          McAllister v. United States (1891) 141 U. S. 174, 11 S. Ct. 949, 35 L. Ed. 693: Plaintiff was appointed District Judge for Alaska 'for the term of four years from the day of the date hereof, and until his successor shall be appointed and qualified, sub-

Page 225

ject to the conditions prescribed by law.' He was suspended, and the Senate confirmed his successor. He sought to recover salary for the time between his removal and qualification of his successor. Section 1768, R. S., authorized the President to suspend civil officers 'except judges of the courts of the United States.' This court reviewed the authorities and pointed out that judges of territorial courts were not judges of courts of the United States within section 1768, and accordingly were subject to suspension by the President as therein provided. This argument would have been wholly unnecessary, if the theory now advanced, that the President has illimitable power to remove, had been approved.

          In an elaborate dissent Mr. Justice Field, Mr. Justice Gray, and Mr. Justice Brown expressed the view that it was beyond the President's power to remove the judge of any court during the term for which appointed. They necessarily repudiated the doctrine of illimitable power.

          Parsons v. United States (1897) 167 U. S. 324, 343, 17 S. Ct. 880, 42 L. Ed. 185: After a review of the history and cases supposed to be apposite, this court, through Mr. Justice Peckham, held that the President had power to remove Parsons from the office of district attorney, to which he had been appointed 'for the term of four years from the date hereof, subject to the conditions prescribed by law':

          'We are satisfied that its (Congress') intention in the repeal of the tenure of office sections of the Revised Statutes was again to concede to the President the power of removal if taken from him by the original Tenure of Office Act, and by reason of the repeal to thereby enable him to remove an officer when in his discretion he regards it for the public good, although the term of office may have been limited by the words of the statute creating the office.'

          He referred to the act of 1820 and suggested that the situation following it had been renewed by repeal of the Tenure of Office Act.

Page 226

          The opinion does express the view that by practical construction prior to 1820 the President had power to remove an officer appointed for a fixed term; but this is a clear mistake. In fact, no removals of such duly commissioned officers were made prior to 1820, and Marbury v. Madison expressly affirms that this could not lawfully be done. The whole discussion in Parsons' Case was futile, if the Constitution conferred upon the President illimitable power to remove. It was pertinent only upon the theory that by apt words Congress could prohibit removals, and this view was later affirmed by Mr. Justice Peckham in Shurtleff v. United States, 189 U. S. 311, 23 S. Ct. 535, 47 L. Ed. 828. Apparently he regarded the specification of a definite term as not equivalent to positive inhibition of removal by Congress.

          Reagan v. United States (1901), 182 U. S. 419, 425, 21 S. Ct. 842, 845 (45 L. Ed. 1162): Reagan, a commissioner of the United States Court in Indian Territory, was dismissed by the judge, and sued to recover salary. He claimed that the judge's action was invalid, because the cause assigned therefor was not one of those prescribed by law. This court, by Mr. Chief Justice Fuller, said:

          'The inquiry is therefore whether there were any causes of removal prescribed by law, March 1, 1895 (28 Stat. 693, c. 145), or at the time of removal. It there were, then the rule would apply that where causes of removal are specified by Constitution or statute, as also where the term of office is for a fixed period, notice and hearing are essential. If there were not, the appointing power could remove at pleasure or for such cause as it deemed sufficient. * * * The commissioners hold office neither for life, nor for any specified time, and are within the rule which treats the power of removal as incident to the power of appointment, unless otherwise provided. By chapters 45 and 46 (Mansf. Dig. Ark.) justices of the peace on conviction of the offenses enumerated are removable from office, but these necessarily do not

Page 227

          include all causes which might render the removal of commissioners necessary or advisable. Congress did not provide for the removal of commissioners for the causes for which justices of the peace might be removed, and if this were to be rules otherwise by construction, the effect would be to hold the commissioners in office for life, unless some of those specially enumerated causes became applicable to them. We agree with the Court of Claims that this would be a most unreasonable construction, and would restrict the power of removal in a manner which there is nothing in the case to indicate could have been contemplated by Congress.'

          Shurtleff v. United States (1903) 189 U. S. 311, 313, 23 S. Ct. 535, 536 (47 L. Ed. 828): The plaintiff sought to recover his salary as general appraiser. He was appointed to that office without fixed term, with consent of the Senate, and qualified July 24, 1890. The act creating the office provided that the incumbents 'shall not be engaged in any other business, avocation or employment, and may be removed from office at any time by the President for inefficiency, neglect of duty or malfeasance in office.' Shurtleff was dismissed May 3, 1899, without notice or charges and without knowledge of the reasons for the President's action. Through Mr. Justice Peckham the court said:

          'There is, of course, no doubt of the power of Congress to create such an office as is provided for in the above section. Under the provision that the officer might be removed from office at any time for inefficiency, neglect of duty, or malfeasance in office, we are of opinion that if the removal is sought to be made for those causes, or either of them, the officer is entitled to notice and a hearing. Reagan v. United States, 182 U. S. 419, 425 (21 S. Ct. 842, 45 L. Ed. 1162). * * * The appellant contends that, because the statute specified certain causes for which the officer might be removed, it thereby impliedly excluded and denied the right to remove for any other cause, and that the President was

Page 228

          therefore by the statute prohibited from any removal excepting for the causes, or some of them therein defined. The maxim, 'Expressio unius est exclusio alterius,' is used as an illustration of the principle upon which the contention is founded. We are of opinion that as thus used the maxim does not justify the contention of the appellant. We regard it as inapplicable to the facts herein. The right of removal would exist if the statute had not contained a word upon the subject. It does not exist by virtue of the grant, but it inheres in the right to appoint, unless limited by Constitution or statute. It requires plain language to take it away.'

          The distinct recognition of the right of Congress to require notice and hearing, if removal were made for any specified cause, is of course incompatible with the notion that the President has illimitable power to remove. And it is well to note the affirmation that the right of removal inheres in the right to appoint.

          XIV. If the framers of the Constitution had intended 'the executive power,' in article 2, § 1, to include all power of an executive nature, they would not have added the carefully defined grants of section 2. They were scholarly men, and it exceeds belief 'that the known advocates in the convention for a jealous grant and cautious definition of federal powers should have silently permitted the introduction of words and phrases in a sense rendering fruitless the restrictions and definitions elaborated by them.' Why say, the President shall be commander-in-chief; may require opinions in writing of the principal officers in each of the executive departments; shall have power to grant reprieves and pardons; shall give information to Congress concerning the state of the union; shall receive ambassadors; shall take care that the laws be faithfully executed-if all of these things and more had already

Page 229

been vested in him by the general words? The Constitution is exact in statement. Holmes v. Jennison, 14 Pet. 540, 10 L. Ed. 579. That the general words of a grant are limited, when followed by those of special import, is an established canon; and an accurate writer would hardly think of emphasizing a general grant by adding special and narrower ones without explanation. 'An affirmative grant of special powers would be absured, as well as useless, if a general authority were intended.' Story on the Constitution, § 448. 'The powers delegated by the proposed Constitution to the federal government are few and defined.' Federalist, No. XLIV. 'Affirmative words are often, in their operation, negative of other objects than those affirmed; and in this case a negative or exclusive sense must be given to them or they have no operation at all. It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such a construction is inadmissible, unless the words require it.' Marbury v. Madison, at page 174.

          In his address to the Senate (February 16 1835) on 'The Appointing an Removing Power,' Mr. Webster considered and demolished the theory that the first section of article 2 conferred all executive powers upon the President except as therein limited (Webster's Works (Little, B. & Co., 1866), vol. 4, pp. 179, 186; Debates of Congress), and showed that the right to remove must be regarded as an incident to that of appointment. He pointed out the evils of uncontrolled removals, and, I think, demonstrated that the claim of illimitable executive power here advanced has no substantial foundation. The argument is exhaustive and ought to be conclusive. A paragraph from it follows:

          'It is true, that the Constitution declares that the executive power shall be vested in the President; but the first question which then arises is, What is executive power? What is the degree, and what are the limitations? Executive power is not a

Page 230

          thing so well known, and so accurately defined, as that the written Constitution of a limited government can be supposed to have conferred it in the lump. What is executive power? What are its boundaries? What model or example had the framers of the Constitution in their minds, when they spoke of 'executive power'? Did they mean executive power as known in England, or as known in France, or as known in Russia? Did they take it as defined by Montesquieu, by Burlamaqui, or by De Lolme? All these differ from one another as to the extent of the executive power of government. What, then, was intended by 'the executive power'? Now, sir, I think it perfectly plain and manifest that, although the framers of the Constitution meant to confer executive power on the President, yet they meant to define and limit that power, and to confer no more than they did thus define and limit. When they say it shall be vested in a President, they mean that one magistrate, to be called a President, shall hold the executive authority; but they mean, further, that he shall hold this authority according to the grants and limitations of the Constitution itself.'

          XV. Article 1, § 1, provides:

          'All legislative powers herein granted, shall be vested in a Congress,' etc.

          I hardly suppose, if the words 'herein granted' had not been inserted, Congress would possess all legislative power of Parliament, or of some theoretical government, except when specifically limited by other provisions. Such an omission would not have overthrown the whole theory of a government of definite powers, and destroyed the meaning and effect of the particular enumeration which necessarily explains and limits the general phrase. When this article went to the committee on style it provided, 'The legislative power shall be vested in a Congress,'

Page 231

etc. The words 'herein granted' were inserted by that committee September 12, and there is nothing whatever to indicate that anybody supposed this radically changed what already had been agreed upon. The same general form of words was used as to the legislative, executive, and judicial powers in the draft referred to the committee on style. The difference between the reported and final draft was treated as unimportant.

          'That the government of the United States is one of delegated, limited, and enumerated powers,' and 'that the federal government is composed of powers specifically granted, with the reservation of all others to the states or to the people.' are propositions which lie at the beginning of any effort rationally to construe the Constitution. Upon the assumption that the President, by immediate grant of the Constitution, is vested with all executive power without further definition or limitation, it becomes impossible to delimit his authority, and the field of federal activity is indefinitely enlarged. Moreover, as the Constitution authorizes Congress 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department of officer thereof,' it likewise becomes impossible to ascertain the extent of congressional power. Such a situation would be intolerable, chaotic indeed.

          If it be admitted that the Constitution by direct grant vests the President with all executive power, it does not follow that he can proceed in defiance of congressional action. Congress, by clear language, is empowered to make all laws necessary and proper for carrying into execution powers vested in him. Here he was authorized only to appoint an officer of a certain kind, for a certain period, removable only in a certain way. He undertook to proceed under the law so far as agreeable, but repudiated the remainder. I submit that no warrant can be

Page 232

found for such conduct. This thought was stressed by Mr. Calhoun in his address to the Senate, from which quotation has been made, ante.

          XVI. Article 3, § 1, provides:

          'The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish.'

          But this did not endow the federal courts with authority to proceed in all matters within the judicial power of the federal government. Except as to the original jurisdiction of the Supreme Court, it is settled that the federal courts have only such jurisdiction as Congress sees fit to confer. 'Only the jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution. * * * The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it.' Kline v. Burke Construction Co., 260 U. S. 226, 234, 43 S. Ct. 79, 82, 67 L. Ed. 226, 24 A. L. R. 1077.

          In sheldon et al. v. Sill, 8 How. 441, 449, 12 L. Ed. 1147, it was argued that Congress could not limit the judicial power vested in the courts by the Constitution-the same theory, let it be observed, as the one now advanced concerning executive power. Replying, through Mr. Justice Grier, this court declared:

          'In the case of Turner v. Bank of North America (1799) 4 Dall. 10 (1 L. Ed. 718), it was contended, as in this case, that, as it was a controversy between citizens of different States, the Constitution gave the plaintiff a right to sue in the Circuit Court, notwithstanding he was an assignee within the restriction of the eleventh section of the Judiciary Act. But the court said: 'The political

Page 233

          truth is that the disposal of the judicial power (except in a few specified instances) belongs to Congress, and Congress is not bound to enlarge the jurisdiction of the federal courts to every subject, in every form which the Constitution might warrant.' This decision was made in 1799; since that time, the same doctrine has been frequently asserted by this court, as may be seen in McIntire v. Wood, 7 Cranch, 506 (3 L. Ed. 420); Kendall v. United States, 12 Pet. 616 (9 L. Ed. 1181), Cary v. Curtis, 3 How. 245 (11 L. Ed. 576).'

          The argument of counsel, reported in 4 Dall. (1 L. Ed. 718) is interesting. The bad reasoning, there advanced, although exposed a hundred years ago, is back again asking for a vote of confidence.

          XVII. The federal Constitution is an instrument of exact expression. Those who maintain that article 2, § 1, was intended as a grant of every power of executive nature not specifically qualified or denied, must show that the term 'executive power' had some definite and commonly accepted meaning in 1787. This court has declared that it did not include all powers exercised by the King of England; and, considering the history of the period, none can say that it had then (or afterwards) any commonly accepted and practical definition. If any one of the descriptions of 'executive power' known in 1787 had been substituted for it, the whole plan would have failed. Such obscurity would have been intolerable to thinking men of that time.

          Fleming et al. v. Page, 9 How. 603, 618 (13 L. Ed. 276):

          'Neither is it necessary to examine the English decisions which have been referred to by counsel. It is true that most of the states have adopted the principles of english jurisprudence, so far as it concerns private and individual rights. And when such rights are in question, we habitually refer to the English decisions, not only with respect, but in many

Page 234

          cases as authoritative. But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question. Our own Constitution and form of government must be our only guide.'

          Blackstone, 190, 250, 252, affirms that 'the supreme executive power of these kingdoms is vested by out laws in a single person, the king or queen,' and that there are certain 'branches of the royal prerogative, which invest thus our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers, in the execution whereof consists the executive part of government.' And he defines 'prerogative' as 'consisting (as Mr. Locke has well defined it) in the discretionary power of acting for the public good, where the positive laws are silent.'

          Montesquieu's Spirit of Laws, in 1787 the most popular and influential work on government says:

          'In every government there are three sorts of power: The legislative; the executive, in respect to things dependent on the law of nations; and the executive, in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.'

Page 235

          Perhaps the best statement concerning 'executive power' known in 1787 was by Mr. Jefferson in his Draft of a Fundamental Constitution for the Commonwealth of Virginia, proposed in 1783 (Writings (Ford's Ed.) 1894, vol. 3, pp. 155, 156):

          'The executive powers shall be exercised by a Governor, who shall be chosen by joint ballot of both Houses of Assembly. * * * By executive powers, we mean no reference to those powers exercised under our former government by the crown as of its prerogative, nor that these shall be the standard of what may or may not be deemed the rightful powers of the Governor. We give them those powers only, which are necessary to execute the laws (and administer the government), and which are not in their nature either legislative or judiciary. The application of this idea must be left to reason. We do, however, expressly deny him the prerogative powers of erecting courts, offices, boroughs, corporations, fairs, markets, ports, beacons, light-house, and sea marks; of laying embargoes, of establishing precedence, of retaining within the state, or recalling to it any citizen thereof, and of making denizens, except so far as he may be authorized from time to time by the Legislature to exercise any of those powers.'

          This document was referred to by Mr. Madison in the Federalist, No. XLVIII.

          Substitute any of these descriptions or statements for the term 'executive power' in article 2, § 1, and the whole plan becomes hopelessly involved-perhaps impossible.

          The term 'executive power' is found in most, if not all, of the state Constitutions adopted between 1776 and 1787. They contain no definition of it, but certainly it was not intended to signify what is now suggested. It meant in those instruments what Mr. Webster declared it signifies in the federal Constitution:

          'When they say it shall be vested in a President, they mean that one magistrate, to be called a President, shall hold the execu-

Page 236

          tive authority; but they mean, further, that he shall hold this authority according to the grants and limitations of the Constitution itself.'

          The Constitution of New York, much copled in the federal Constitution, declared:

          'The supreme executive power and authority of this state shall be vested in a Governor.'

          It then defined his powers and duties-among them, 'to take care that the laws are faithfully executed to the best of his ability.' It further provided 'that the treasurer of this state shall be appointed by act of the Legislature,' and intrusted the appointment of civil and military officers to a council. The Governor had no power to remove them, but apparently nobody thought he would be unable to execute the laws through officers designated by another.

          The Constitution of Virginia, 1776, provided:

          'The legislative, executive, and judiciary department, shall be separate and distinct, so that neither exercise the powers properly belonging to the other.'

          It then imposed upon the two Houses of Assembly the duty of selecting by ballot judges, Attorney General, and treasurer.

          New Jersey Constitution, 1776:

          'That the Governor * * * shall have the supreme executive power * * * and act as captain-general and commander in chief of all the militia. * * * That captains, and all other inferior officers of the militia, shall be chosen by the companies, in the respective counties; but field and general officers, by the council and assembly.'

          North Carolina Constitution, 1776:

          'That the legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other. * * * That the General Assembly shall, by joint ballot of both Houses, appoint judges of the Supreme Courts of law and equity, judges of admiralty, and Attorney General. * * * That the General Assembly shall, by joint ballot of both Houses triennially appoint a Secretary for this state.'

Page 237

          During the debate of 1789, Congressman Stone well said:

          'If gentlemen will tell us that powers, impliedly executive, belong to the President, they ought to go further with the idea, and give us a correct idea of executive power, as applicable to their rule. In an absolute monarchy there never has been any doubt with respect to implication; the monarch can do what he pleases. In a limited monarchy, the prince has powers incident to kingly prerogative. How far will a federal executive, limited by a Constitution, extend in implications of this kind? Does it go so far as absolute monarchy? Or is it confined to a restrained monarchy? If gentlemen will lay down their rule, it will serve us as a criterion to determine all questions respecting the executive authority of this government. My conception may be dull; but telling me that this is an executive power, raises no complete idea in my mind. If you tell me the nature of executive power, and how far the principle extends, I may be able to judge whether this has relation thereto, and how much is due to implication.'

          See The Federalist, No. XLVI.

          XVIII. In any rational search for answer to the questions arising upon this record, it is important not to forget—

          That this is a government of limited powers, definitely enumerated and granted by a written Constitution.

          That the Constitution must be interpreted by attributing to its words the meaning which they bore at the time of its adoption, and in view of commonly-accepted canons of construction, its history, early and long-continued practices under it, and relevant opinions of this court.

          That the Constitution endows Congress with plenary powers 'to establish post offices and post roads.'

          That, exercising this power during the years from 1789 to 1836, Congress provided for postmasters and vested the

Page 238

power to appoint and remove all of them at pleasure in the Postmaster General.

          That the Constitution contains no words which specifically grant to the President power to remove duly appointed officers. And it is definitely settled that he cannot remove those whom he has not appointed-certainly they can be removed only as Congress may permit.

          That postmasters are inferior officers within the meaning of article 2, § 2, of the Constitution.

          That from its first session to the last one Congress has often asserted its right to restrict the President's power to remove inferior officers, although appointed by him with consent of the Senate.

          That many Presidents have approved statutes limiting the power of the executive to remove, and that from the beginning such limitations have been respected in practice.

          That this court, as early as 1803, in an opinion never overruled and rendered in a case where it was necessary to decide the question, positively declared that the President had no power to remove at will an inferior officer appointed with consent of the Senate to serve for a definite term fixed by an act of Congress.

          That the power of Congress to restrict removals by the President was recognized by this court as late as 1903, in Shurtleff v. United States.

          That the proceedings in the Constitutional Convention of 1787, the political history of the times, contemporaneous opinion, common canons of construction, the action of Congress from the beginning and opinions of this court, all oppose the theory that by vesting 'the executive power' in the President the Constitution gave him an illimitable right to remove inferior officers.

          That this court has emphatically disapproved the same theory concerning 'the judicial power' vested in the court by words substantially the same as those which

Page 239

vest 'the executive power' in the President. 'The executive power shall be vested in a President of the United States of America.' 'The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.'

          That to declare the President vested with indefinite and illimitable executive powers would extend the field of his possible action far beyond the limits observed by his predecessors, and would enlarge the powers of Congress to a degree incapable of fair appraisement.

          Considering all these things, it is impossible for me to accept the view that the President may dismiss, as caprice may suggest, any inferior officer whom he has appointed with consent of the Senate, notwithstanding a positive inhibition by Congress. In the last analysis, that view has no substantial support, unless it be the polemic opinions expressed by Mr. Madison (and eight others) during the debate of 1789, when he was discussing questions relating to a 'superior officer' to be appointed for an indefinite term. Notwithstanding his justly exalted reputation as one of the creators and early expounder of the Constitution, sentiments expressed under such circumstances ought not now to outweigh the conclusion which Congress affirmed by deliberate action while he was leader in the House and has consistently maintained down to the present year, the opinion of this court solemnly announced through the great Chief Justice more than a century ago, and the canons of construction approved over and over again.

          Judgment should go for the appellant.

Page 240

           Mr. Justice BRANDEIS, dissenting.

          In 1833 Mr. Justice Story, after discussing in sections 1537-1543 his Commentaries on the Constitution the much debated question concerning the President's power of removal, said in section 1544:

          'If there has been any aberration from the true constitutional exposition of the power of removal (which the reader must decide for himself), it will be difficult, and perhaps impracticable, after forty years' experience, to recall the practice to the correct theory. But, at all events, it will be a consolation to those who love the Union, and honor a devotion to the patriotic discharge of duty, that in regard to 'inferior officers' (which appellation probably includes ninety-nine out of a hundred of the lucrative offices in the government), the remedy for any permanent abuse is still within the power of Congress, by the simple expedient of requiring the consent of the Senate to removals in such cases.'

          Postmasters are inferior officer. Congress might have vested their appointment in the head of the department.¹ The Act of July 12, 1876, cc. 176, 179, § 6, 19 Stat. 78, 80 (Comp. St. § 7190), re-enacted earlier legislation,² provided that:

          'Postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate, and shall hold their offices for four years unless sooner removed or suspended according to law.'

          That statute has been in force un-

Page 241

modified for half a century. Throughout the period, it has governed a large majority of all civil officers to which appointments are made by and with the advice and consent of the Senate.³ May the President, having acted under the statute in so far as it creates the office and authorizes the appointment, ignore, while the Senate is in session, the provision which prescribes the condition under which a removal may take place?

          It is this narrow question, and this only. which we are required to decide. We need not consider what power the President, being Commander-in-Chief, has over officers in the Army and the Navy. We need not determine whether the President, acting alone, may remove high political officers. We need not even determine whether, acting alone, he may remove inferior civil officers when the Senate is not in session. It was in session when the President purported to remove Myers, and for a long time thereafter. All questions of statutory construction have been eliminated by the language of the act. It is settled that, in the absence of a provision expressly providing for the consent of the Senate to a removal, the clause fixing the tenure will be construed as a limitation, not as a grant, and that, under such legislation, the President, acting alone, has the power of removal. Parsons v. United States, 167 U. S. 324, 17 S. Ct. 880, 42 L. Ed. 185; Burnap v. United States, 252 U. S. 512, 515, 40 S. Ct. 374, 64 L. Ed. 692. But, in defining the tenure, this statute used words of grant. Congress clearly intended to preclude a removal without the consent of the Senate.

          Other questions have been eliminated by the facts found, by earlier decisions of this court, and by the

Page 242

nature of the claim made. It is settled that where the statute creating an office provides for the consent of the Senate to both appointment and removal, a removal by the President will be deemed to have been so made, if consent is given to the appointment of a successor. Wallace v. United States, 257 U. S. 541, 42 S. Ct. 221, 66 L. Ed. 360. But, in the case at bar, no successor was appointed until after the expiration of Myers' term. It is settled that if Congress had, under clause 2 of section 2, art. 2, vested the appointment in the Postmaster General, it could have limited his power of removal by requiring consent of the Senate. United States v. Perkins, 116 U. S. 483, 6 S. Ct. 449, 29 L. Ed. 700. It is not questioned here that the President, acting alone, has the constitutional power to suspend an officer in the executive branch of the government. But Myers was not suspended. It is clear that Congress could have conferred upon postmasters the right to receive the salary for the full term unless sooner removed with the consent of the Senate. Compare Embry v. United States, 100 U. S. 680, 685, 25 L. Ed. 772. It is not claimed by the appellant that the Senate has the constitutional right to share in the responsibility for the removal, merely because it shared, under the act of Congress, in the responsibility for the appointment. Thus the question involved in the action taken by Congress after the great debate of 1789 is not before us. The sole question is whether, in respect to inferior offices, Congress may impose upon the Senate both responsibilities, as it may deny to it participation in the exercise of either function.

          In Marbury v. Madison, 1 Cranch, 137, 167, 2 L. Ed. 60, it was assumed, as the basis of decision, that the President, acting alone, is powerless to remove an inferior civil officer appointed for a fixed term with the consent of the Senate; and that case was long regarded as so deciding.⁴ In no

Page 243

case, has this court determined that the President's power of removal is beyond control, limitation, or regulation by Congress. nor has any lower federal court ever so decided.⁵ This is true of the power as it affects officers in the Army or the Navy and the high political officers like heads of departments, as well as of the power in respect to inferior statutory offices in the executive branch. Continuously, for the last 58 years, laws comprehensive in character, enacted from time to time with the approval of the President, have made removal from the

Page 244

great majority of the inferior presidential offices dependent upon the consent of the Senate. Throughout that period these laws have been continuously applied. We are requested to disregard the authority of Marbury v. Madison and to overturn this long-established constitutional practice.

          The contention that Congress is powerless to make consent of the Senate a condition of removal by the President from an executive office rests mainly upon the clause in section 1 of article 2 which declares that 'the executive Power shall be vested in a President.' The argument is that appointment and removal of officials are executive prerogatives; that the grant to the President of 'the executive power' confers upon him, as inherent in the office, the power to exercise these two functions without restriction by Congress, except in so far as the power to restrict his exercise of then is expressly conferred

Page 245

upon Congress by the Constitution; that in respect to appointment certain restrictions of the executive power are so provided for; but that in respect to removal there is no express grant to Congress of any power to limit the President's prerogative. The simple answer to the argument is this: The ability to remove a subordinate executive officer, being an essential of effective government, will, in the absence of express constitutional provision to the contrary, be deemed to have been vested in some person or body. Compare Ex parte Hennen, 13 Pet. 230, 259, 10 L. Ed. 138. But it is not a power inherent in a chief executive. The President's power of removal from statutory civil inferior offices, like the power of appointment to them, comes immediately from Congress. It is true that the exercise of the power of removal is said to be an executive act, and that when the Senate grants or withholds consent to a removal by the President, it participates in an executive act.⁶ But the Constitution has confessedly granted to Congress the legislative power to create offices, and to prescribe the tenure thereof; and it has not in terms denied to Congress the power to control removals. To prescribe the tenure involves prescribing the conditions under which incumbency shall cease. For the possibility of removal is a condition or qualification of the tenure.⁷ When Congress provides that the incumbent

Page 246

shall hold the office for four years unless sooner removed with the consent of the Senate, it prescribes the term of the tenure.

          It is also argued that the clauses in article 2, § 3, of the Constitution, which declare that the President 'shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States' imply a grant to the President of the alleged uncontrollable power of removal. I do not find in either clause anything which supports this claim. The provision that the President 'shall Commission all the Officers of the United States' clearly bears no such implication. Nor can it be spelled out of the direction that 'he shall take Care that the Laws be faithfully executed.' There is no express grant to the President of incidental powers resembling those conferred upon Congress by clause 18 of article 1, § 8. A power implied on the ground that it is inherent in the executive, must, according to established principles

Page 247

of constitutional construction, be limited to 'the least possible power adequate to the end proposed.' Compare Marshall v. Gordon, 243 U. S. 521, 541, 37 S. Ct. 448, 61 L. Ed. 881, L. R. A. 1917F, 279, Ann. Cas. 1918B, 371; Michaelson v. United States, 266 U. S. 42, 66, 45 S. Ct. 18, 69 L. Ed. 162, 35 A. L. R. 451. The end to which the President's efforts are to be directed is not the most efficient civil service conceivable, but the faithful execution of the laws consistent with the provisions therefor made by Congress. A power essential to protection against pressing dangers incident to disloyalty in the civil service may well be deemed inherent in the executive office. But that need, and also insubordination and neglect of duty, are adequately provided against by implying in the President the constitutional power of suspension. ⁸ Such provisional executive power is comparable to the provisional judicial power of granting a restraining order without notice to the defendant and opportunity to be heard. Power to remove, as well as to suspend, a high political officer, might conceivably be deemed indispensable to democratic government and, hence, inherent in the President. But power to remove an inferior administrative officer appointed for a fixed term cannot conceivably be deemed an essential of government.

          To imply a grant to the President of the uncontrollable power of removal from statutory inferior executive offices involves an unnecessary and indefensible limitation upon the constitutional power of Congress to fix the tenure of the inferior statutory offices. That such a limitation cannot be justified on the ground of necessity is demonstrated by the practice of our governments, state and national. In none of the original 13 states did the chief executive

Page 248

possess such power at the time of the adoption of the federal Constitution. In none of the 48 states has such power been conferred at any time since by a state Constitution,⁹ with a single possible exception.¹⁰ In a few states the Legislature has granted to the Governor, or other

Page 249

appointing power, the absolute power of removal.¹¹ The legislative practice of most states reveals a decided tendency to limit, rather than to extend, the Governor's power of removal.¹² The practice of the federal government will be set forth in detail.

Page 250

          Over removal from inferior civil offices, Congress has, from the foundation of our government, exercised continuously some measure of control by legislation. The instances of such laws are many. Some of the statutes were directory in character. Usually, they were mandatory. Some of them, comprehensive in scope, have endured for generations. During the first 40 years of our government, there was no occasion to curb removals.¹³ Then, the power of Congress was exerted to insure removals. Thus, the Act of September 2, 1789, c. 12, 1 Stat. 65, 67, establishing the Treasury Department, provided by section 8 (Comp. St. § 377), that if any person appointed to any office by that act should be convicted of offending against any of its provisions, he shall 'upon conviction be removed from office.' The Act of March 3, 1791, c. 18, § 1, 1 Stat. 215 (Comp. St. § 378), extended the provision to every clerk employed in the depart-

Page 251

ment. The Act of May 8, 1792, c. 37, § 12, 1 Stat. 279, 281, extended if further to the Commissioner of the Revenue and the Commissioners of Loans, presidential appointments. The first Tenure of Office Act, May 15, 1820, c. 102, 3 Stat. 582, introduced the 4-year term, which was designed to insure removal under certain conditions.¹⁴ The Act of January 31, 1823, c. 9, § 3, 3 Stat. 723, directed that officers receiving public money and failing to account quarterly shall be dismissed by the President unless they shall account for such default to his satisfaction. The Act of July 2, 1836, c. 270, §§ 26, 37, 5 Stat. 80, 86, 88, which first vested the appointment of postmasters in the President by and with the advice and consent of the Senate, directed that postmasters and others offending against certain prohibitions 'be forthwith dismissed from office,' and as to other offenses pro-

Page 252

vided for such dismissal upon conviction by any court. The Act of July 17, 1854, c. 84, § 6, 10 Stat. 305, 306 (Comp. St. § 4482), which authorized the President to appoint registers and receivers, provided that 'on satisfactory proof that either of said officers, or any other officer, has charged or received fees or other rewards not authorized by law, he shall be forthwith removed from office.'¹⁵

          In the later period, which began after the spoils system had prevailed for a generation,¹⁶ the control of Congress over inferior offices was exerted to prevent removals. The removal clause here in question was first introduced by the Currency Act of February 25, 1863, c. 58, § 1, 12 Stat. 665, which was approved by President Lincoln. That statute provided for the appointment of the Comp-

Page 253

troller, and that he 'shall hold his office for the term of five years unless sooner removed by the President, by and with the advice and consent of the Senate.' In 1867 this provision was inserted in the Tenure of Office Act of March 2, 1867, c. 154, §§ 1, 3, 6, 14 Stat. 430, 431, which applied, in substance, to all presidential offices. It was passed over President Johnson's veto.¹⁷ In 1868, after the termination of the impeachment proceedings, the removal clause was inserted in the Wyoming Act of July 25, 1868, c. 235, §§ 2, 3, 9, 10, 15 Stat. 178-181, which was approved by President Johnson.

          By Act of June 8, 1872, c. 335, 17 Stat. 283, a consolidation and revision of the postal laws was made. The removal clause was inserted in section 63 in the precise form in which it had first appeared in the Currency Act of 1863. From the act of 1872, it was carried as section 3830 into Revised Statutes, which consolidated the statutes in force December 1, 1873. The act of 1872 was amended by the Act of June 23, 1874, c. 456, § 11, 18 Stat. 231, 234, so as to reduce the classes of postmasters besides New York City, from five to four. The removal clause was again inserted. When the specific classification of New York City in section 11 of the Act of 1874, was repealed by the Act of July 12, 1876, c. 179, § 4, 19 Stat. 80, the removal clause was retained. thus, postmasters of the first three classes were made, independently of the Tenure of Office Act, subject to the removal clause. Each of these postal statutes was approved by President Grant. When President Cleveland secured, by Act of March 3, 1887, c. 353, 24 Stat. 500, the repeal of sections 1767 to 1772 of Revised Statutes (which had re-enacted as to all presidential offices the removal provision of the Tenure of Office Act), he made no attempt to apply the repeal to postmasters, although postmasters constituted then, as they have ever since, a large majority of all presidential appointees. The removal clause, which

Page 254

had become operative as to them by specific legislation, was continued in force. For more than half a century this postal law has stood unmodified. No President has recommended to Congress that it be repealed. A few proposals for repeal have been made by bills introduced in the House. Not one of them has been considered by it.¹⁸

          It is significant that President Johnson, who vetoed in 1867 the Tenure of Office Act, which required the Senate's consent to the removal of high political officers, approved other acts containing the removal clause which related only to inferior officers. Thus, he had approved the Act

Page 255

of July 13, 1866, c. 176, § 5, 14 Stat. 90, 92, which provided that 'no officer in the military or naval service shall in time of peace, be dismissed from service except upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof.'¹⁹ And in 1868 he approved the Wyoming Act, which required such consent to the removal of inferior officers who had been appointed for fixed terms. It is significant also that the distinction between high political officers and inferior ones had been urged in the Senate in 1867 by Reverdy Johnson, when opposing the passage of the Tenure of Office Act. ²⁰ It had apparently been recognized in 1789 at the time of the great debate in the First Congress, and by Chief Justice Marshall in 1807.²¹

Page 256

It had been repeatedly pointed out in later years.²²

Page 257

          The administrative action of President Johnson under the Tenure of Office Act indicates likewise a recognition of this distinction bwtween inferior and high political offices. The procedure prescribed in section 2 required of the President a report to the Senate of the reasons for a suspension and also made its consent essential to a removal. In respect to inferior officers this course appears to have been scrupulously observed by the President in every case. This is true for the period before the institution of the impeachment proceedings²³ as well as for the later period.²⁴ On the other hand, in the case of a high political officer, Secretary of War Stanton, President Johnson declined on serveral grounds to follow the procedure prescribed by the act. 16 Ex. Journ. 95. The requirement that the President should report reasons for suspension to the Senate was not retained by the amended Tenure of Office Act of April 5, 1869, c. 10, 16 Stat. 6; the other provisions, however, were substantially reenacted, and affirmative evidence of compliance by succeeding Presidents with its requirements as to inferior officers is recorded between 1869 and the repeal of the act in 1887. Suspensions and not removals were made during recess.²⁵ In those rare instances where removals

Page 258

were sought by means other than the appointment of a 'successor,' Presidents Grant, Hayes, Garfield, and Arthur requested the Senate's consent to the removals. ²⁶ Where the Senate failed to confirm the nomination of a successor, the former incumbent retained office until either the expiry of his commission or the confirmation of a successor.²⁷

Page 259

          From the foundation of the government to the enactment of the Tenure of Office Act, during the period while it remained in force, and from its repeal to this time, the administrative practice in respect to all offices has, so far as appears, been consistent with the existence in Congress of power to make removals subject to the consent of the Senate.²⁸ The practice during the earlier period was described by Webster in addressing the Senate on February 16, 1835:

          'If one man be Secretary of State, and another be appointed, the first goes out by the mere force of the ap-

Page 260

          pointment of the other, without any previous act of removal whatever. And this is the practice of the government, and has been, from the first. In all the removals which have been made, they have generally been effected simply by making other appointments. I cannot find a case to the contrary. There is no such thing as any distinct official act of removal. I have looked into the practice, and caused inquiries to be made in the departments, and I do not learn that any such proceeding is known as an entry or record of the removal of an officer from office; and the President could only act, in such cases, by causing some proper record or entry to be made, as proof of the

Page 261

          fact of removal. I am aware that there have been some cases in which notice has been sent to persons in office that their services are, or will be, after a given day, dispensed with. These are usually cases in which the object is, not to inform the incumbent that he is removed, but to tell him that a successor either is, or by a day named will be, appointed.' 4 Works (8th Ed.) 189.

          In 1877, President Hayes, in a communication to the Senate in response to a resolution requesting information as to whether removals had been made prior to the appointment of successors, said:

          'In reply I would respectfully inform the Senate that in the instances referred to removals had not been made at the time the nominations were sent to the Senate. The form used for such nominations was one found to have been in existence and heretofore used in some of the departments, and was intended to inform the Senate that if the nomination proposed were approved it would operate to remove an incumbent whose name was indicated. R. B. Hayes.' 7 Messages and Papers of the Presidents, 481.

          Between 1877 and 1899, the latest date to which the records of the Senate are available for examination, the practice has, with few exceptions, been substantially the same.²⁹ It is, doubtless, because of this practice, and the long-settled rule recently applied in Wallace v. United States, 257 U. S. 541, 545, 42 S. Ct. 221, 66 L. Ed. 360, that this court has not had occasion heretofore to pass upon the constitutionality of the removal clause.

Page 262

          The practice of Congress to control the exercise of the executive power of removal from inferior offices is evidenced by many statutes which restrict it in many ways besides the removal clause here in question, Each of these restrictive statutes became law with the approval of the President. Every President who has held office since 1861, except President Garfield, approved one or more of such statutes. Some of these statutes, prescribing a fixed term, provide that removal shall be made only for one of several specified causes.³⁰ Some provide a fixed term, subject generally to removal for cause.³¹ Some pro-

Page 263

vide for removal only after hearing.³² Some provide a fixed term, subject to removal for reasons to be communicated by the President to the Senate.³³ Some impose the restriction in still other ways. Thus, the Act of August 24, 1912, c. 389, § 6, 37 Stat. 539, 555 (Comp. St. § 3287) which deals only with persons in the classified civil service, prohibits removal 'except for such cause as will promote the efficiency of the service and for reasons given in writing,' and forbids removal for one cause which had theretofore been specifically prescribed by President Roosevelt and President Taft as a ground for dismissal.³⁴ The Budget

Page 264

Act of June 10, 1921, c. 18, § 303, 42 Stat. 20, 24 (Comp. St. § 400 4/5 aa), provides a fixed term for the Comptroller General and the Assistant Comptroller General, and makes these officers removable only by impeachment or, by joint resolution of Congress, after hearing, for one of the causes specified. It should be noted that while President Wilson had, on June 4, 1920, vetoed an earlier Budget Act, which like this denied to the President any participation in the removal, he had approved the Mediation and Conciliation Act of July 15, 1913, and the Railroad Labor Board Act of February 28, 1920, which prohibited removals except for the causes therein specified.

          The assertion that the mere grant by the Constitution of executive power confers upon the President as a prerogative the unrestricted power of appointment and of removal from executive offices, except so far as otherwise expressly provided by the Constitution, is clearly inconsistent also with those statutes which restrict the exercise by the President of the power of nomination. There is not a word in the Constitution which in terms authorizes

Page 265

Congress to limit the President's freedom of choice in making nominations for executive offices. It is to appointment as distinguished from nomination that the Constitution imposes in terms the requirement of Senatorial consent. But a multitude of laws have been enacted which limit the President's power to make nominations, and which through the restrictions imposed, may prevent the selection of the person deemed by him best fitted. Such restriction upon the power to nominate has been exercised by Congress continuously since the foundation of the government. Every President has approved one or more of such acts. Every President has consistently observed them. This is true of those offices to which he makes appointments without the advice and consent of the Senate as well as of those for which its consent is required.

          Thus Congress has, from time to time, restricted the President's selection by the requirement of citizenship.³⁵

Page 266

It has limited the power of nomination by providing that the office may be held only by a resident of the United States;³⁶ of a state;³⁷ of a particular state;³⁸ of a par-

Page 267

ticular district;³⁹ of a particular territory;⁴⁰ of the District of Columbia; ⁴¹ of a particular foreign country.⁴² It has limited the power of nomination further by prescribing specific professional attainments,⁴³ or occupational

Page 268

experience.⁴⁴ It has, in other cases, prescribed the test of examinations.⁴⁵ It has imposed the requirement of

Page 269

age;⁴⁶ of sex;⁴⁷ of races;⁴⁸ of property;⁴⁹ and of habitual temperance in the use of intoxicating liquors.⁵⁰ Congress

Page 270

has imposed like restrictions on the power of nomination by requiring political representation;⁵¹ or that the selec-

Page 271

tion be made on a nonpartisan basis.⁵² It has required, in some cases, that the representation be industrial;⁵³ in

Page 272

others, that it be geographic.⁵⁴ It has at times required that the President's nominees be taken from, or include

Page 273

representatives from, particular branches or departments of the government.⁵⁵ By still other statutes, Congress

Page 274

has confined the President's selection to a small number of persons to be named by others.⁵⁶

          The significance of this mass of legislation restricting the power of nomination is heightened by the action which President Jackson and the Senate took when the right to impose such restrictions was, so far as appears, first mooted. On February 3, 1831, the Senate resolved that it was inexpedient to appoint a citizen of one state to an office created or made vacant in another state of which such citizen was not a resident, unless an apparent necessity for such appointment existed. 4 Ex. Journ. 150.

Page 275

Several nominations having been rejected by the Senate in accordance with the terms of this resolution, President Jackson communicated his protest to the Senate, on March 2, 1833, saying that he regarded 'that resolution, in effect, as an unconstitutional restraint upon the authority of the President in relation to appointments to office.' Thereupon the Senate rescinded the resolution of 1831. 4 Ex. Journ. 331. But that Congress had the power was not questioned. The practice of prescribing by statute that nominations to an inferior presidential office shall be limited to residents of a particular state or district has prevailed, without interruption, for three-quarters of a century.⁵⁷

          The practical disadvantage to the public service of denying to the President the uncontrollable power of removal from inferior civil offices would seem to have been exaggerated. Upon the service, the immediate effect would ordinarily be substantially the same, whether the President, acting alone, has or has not the power of removal. For he can, at any time, exercise his constitutional right to suspend an officer and designate some other person to act temporarily in his stead; and he cannot while the Senate is in session, appoint a successor without its consent. Compare Embry v. United States, 100 U. S. 680, 25 L. Ed. 772. On the other hand, to the individual in the public service, and to the maintenance of its morale, the existence of a power in Congress to impose upon the Senate the duty to share in the responsibility for a removal is of paramount importance. The Senate's consideration of

Page 276

a proposed removal may be necessary to protect reputation and emoluments of office from arbitrary executive action. Equivalent protection is afforded to other inferior officers whom Congress has placed in the classified civil service and which it authorizes the heads of departments to appoint and to remove without the consent of the Senate. Act Aug. 24, 1912, c. 389, § 6, 37 Stat. 539, 555. The existence of some such provision is a common incident of free governments. In the United States, where executive responsibility is not safeguarded by the practice of parliamentary interpellation, such means of protection to persons appointed to office by the President with the consent of the Senate is of special value.

          Until the Civil Service Law, January 16, 1883, c. 27, 22 Stat. 403 (Comp. St. §§ 3271-3278, 3280-3282, 10288-10292) was enacted, the requirement of consent of the Senate to removal and appointment was the only means of curbing the abuses of the spoils system. The contest over making Cabinet officers subject to the provisions of the Tenure of Office Act of 1867 (14 Stat. 430) has obscured the significance of that measure as an instrument designed to prevent abuses in the civil service.⁵⁸ But the importance of the measure as a means of civil service reform was urged at the time of its passage;⁵⁹ again

Page 277

when its repeal was resisted in 1869⁶⁰ and in 1872;⁶¹ and finally in 1887 (24 Stat. 500), when its repeal was effected.⁶² That act

Page 278

was one of two far-reaching measures introduced in 1866 aimed at the abuses of executive patronage. The Jenckes bill was to establish the classified service. The tenure of office bill was to control removals from presidential offices. Like the Jenckes bill, it applied, when introduced, only to inferior offices. The Jenckes bill, reported by the House committee on June 13, 1866, was finally tabled in the House on February 6, 1867.⁶³ The tenure of office bill was reported out in the House on December 5, 1866,

Page 279

was amended by the conference committee so as to apply to Cabinet officers, and having passed both Houses, was sent to the President on February 20, 1867, and passed over his veto on March 2, 1867.

          The fact that the removal clause had been inserted in the currency bill of 1863 (12 Stat. 665) shows that it did not originate in the contest of Congress with President Johnson, as has been sometimes stated. Thirty years before that, it had been recommended by Mr. Justice Story as a remedial measure, after the wholesale removals of the first Jackson administration. The Post Office Department was then the chief field for plunder. Vacancles had been created in order that the spoils of office might be distributed among political supporters. Fear of removal had been instilled in continuing officeholders to prevent opposition or lukewarmness in support. Gross inefficiency and hardship had resulted. Several remedies were proposed. One of the remedies urged was to require the President to report to the Senate the reasons for each removal. ⁶⁴ The second was to take the power of appointing postmasters from the Postmaster General and to confer it upon the President, subject to the consent of the Senate.⁶⁵ A third

Page 280

proposal was to require consent of the Senate also to removals.⁶⁶ Experience since has taught that none of these remedies is effective. Then, however, Congress adopted the second measure. The evil continued; and the struggle against the spoils system was renewed. The

Page 281

other crude remedies which had been rejected-accountability of the President to the Senate⁶⁷ and the requirement of its consent to removals ⁶⁸-were again considered;

Page 282

and both continued to be urged upon Congress, even after the fourth and the more promising remedy-inquiry into fitness for office and competitive examinations-had been proposed. For a generation, the reformers failed to secure the adoption of any further measure.

          The first substantial victory of the civil service reform movement, though a brief one, was the insertion of the removal clause in the Currency Bill of 1863.⁶⁹ The next forward step was taken by the Consular and Diplomatic Appropriation Act June 20, 1864, c. 136, § 2, 13 Stat. 137, 139, 140, also approved by President Lincoln, which contained a provision that consular clerks should be appointed by the President after examination, and that 'no clerk so appointed shall be removed from office except for cause stated in writing, which shall be submitted to Congress at the session first following such removal.'⁷⁰ It was in the next Congress that the removal clause was applied generally by the Tenure of Office Act. The long delay in adopting legislation to curb removals was not because Congress accepted the doctrine that the Consti-

Page 283

tution had vested in the President uncontrollable power over removal. It was because the spoils system held sway.

          The historical data submitted present a legislative practice, established by concurrent affirmative action of Congress and the President, to make consent of the Senate a condition of removal from statutory inferior, civil, executive offices to which the appointment is made for a fixed term by the President with such consent. They show that the practice has existed, without interruption, continuously for the last 58 years; that throughout this period, it has governed a great majority of all such offices; that the legislation applying the removal clause specifically to the office of postmaster was enacted more than half a century ago; and that recently the practice has, with the President's approval, been extended to several newly created offices. The data show further that the insertion of the removal clause in acts creating inferior civil offices with fixed tenures is part of the broader legislative practice, which has prevailed since the formation of our government, to restrict or regulate in many ways both removal from and nomination to such offices. A persistent legislative practice which involves a delimitation of the respective powers of Congress and the President, and which has been so established and maintained, should be deemed tantamount to judicial construction, in the absence of any decision by any court to the contrary. United States v. Midwest Oil Co., 236 U. S. 459, 469, 35 S. Ct. 309, 59 L. Ed. 673.

          The persuasive effect of this legislative practice is strengthened by the fact that no instance has been found, even in the earlier period of our history, of concurrent affirmative action of Congress and the President which is inconsistent with the legislative practice of the last 58 years to impose the removal clause. Nor has any instance been found of action by Congress which in-

Page 284

volves recognition in any other way of the alleged uncontrollable executive power to remove an inferior civil officer. The action taken by Congress in 1789 after the great debate does not present such an instance. The vote then taken did not involve a decision that the President had uncontrollable power. It did not involve a decision of the question whether Congress could confer upon the Senate the right, and impose upon it the duty, to participate in removals. It involved merely the decision that the Senate does not, in the absence of legislative grant thereof, have the right to share in the removal of an officer appointed with its consent, and that the President has, in the absence of restrictive legislation, the constitutional power of removal without such consent. Moreover, as Chief Justice Marshall recognized, the debate and the decision related to a high political office, not to inferior ones.⁷¹

          Nor does the debate show that the majority of those then in Congress thought that the President had the uncontrollable power of removal. The Senators divided equally in their votes. As to their individual views we lack knowledge; for the debate was secret.⁷² In the House only 24 of the 54 members voting took part in the debate. Of the 24, only 6 appear to have held the opinion that the President possessed the uncontrollable power of removal. The clause which involved a denial of the claim that the Senate had the constitutional right to participate in removals was adopted, so far as appears, by aid of the votes of others who believed it expedient for

Page 285

Congress to confer the power of removal upon the President alone.⁷³ This is indicated both by Madison's appeal for support⁷⁴ and by the action taken on Benson's motions. ⁷⁵

Page 286

          It is true that several Presidents have asserted that the Constitution conferred a power of removal uncontrollable

Page 287

by Congress.⁷⁶ But of the many statutes enacted since the foundation of our government which in express terms controlled the power of removal, either by the clause here in question or otherwise, only two were met with a veto: The Tenure of Office Act of 1867, which related to high political officers among others, and the Budget Act of 1921 (Comp. St. § 400 1/2 et seq.), which denied to the President any participation in the removal of the Comptroller and Assistant Comptroller. One was passed over the President's voto; the other was approved by the succeeding President. It is true also that several Presidents have at times insisted that for the exercise of their power they were not accountable to the Senate.⁷⁷ But even these Presidents

Page 288

have at other times complied with requests that the ground of removal of inferior officers be stated.⁷⁸ Many of the Presidents have furnished the desired information

Page 289

without questioning the right to request it.⁷⁹ And neither the Senate nor the House has at any time receded

Page 290

from the claim that Congress has power both to control by legislation removal from inferior offices and to require the President to report to it the reasons for removals made therefrom.⁸⁰ Moreover, no instance has been found in which a President refused to comply with an act of Congress requiring that the reasons for removal of an inferior officer be given. On the contrary, President Cleveland who refused to accede to the request of the Senate that he state the reasons for the removal of Duskin had, in the case of Burchard, complied, without protest or reserva-

Page 291

tion, with the requirement of the Act of February 12, 1873, c. 131, § 1, 17 Stat. 424 (now Rev. Stat. § 343 (Comp. St. § 507)) that the reasons for the removal of the Director of the Mint be communicated by him to the Senate. 25 Ex. Journ. 242. A construction given to the Constitution by the concurrent affirmative action of Congress and the President continued throughout a long period without interruption should be followed despite the isolated utterances, made in the heat of political controversies not involving the question here in issue by individual Presidents supported only by the advice of the Attorney General.⁸¹

          The separation of the powers of government did not make each branch completely autonomous. It left each in some measure, dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and judicial. Obviously the President cannot secure full execution of the

Page 292

laws, if Congress denies to him adequate means of doing so. Full execution may be defeated because Congress declines to create offices indispensable for that purpose; or because Congress, having created the office, declines to make the indispensable appropriation; or because Congress, having both created the office and made the appropriation, prevents, by restrictions which it imposes, the appointment of officials who in quality and character are indispensable to the efficient execution of the law. If, in any such way, adequate means are denied to the President, the fault will lie with Congress. The President performs his full constitutional duty, if, with the means and instruments provided by Congress and within the limitations prescribed by it, he uses his best endeavors to secure the faithful execution of the laws enacted. Compare Kendall v. United States, 12 Pet. 524, 613, 626, 9 L. Ed. 1181.

          Checks and balances were established in order that this should be 'a government of laws and not of men.' As White said in the House in 1789, an uncontrollable power of removal in the Chief Executive 'is a doctrine not to be learned in American governments.' Such power had been denied in colonial charters,⁸² and even under pro-

Page 293

prietary grants⁸³ and royal commissions. ⁸⁴ It had been denied in the thirteen states before the framing of the federal Constitution.⁸⁵ The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. In order to prevent arbitrary executive action, the Constitution provided in terms that presidential appointments be made with the consent of the Senate, unless Congress should otherwise provide; and this clause was construed by Alexander Hamilton in The Federalist, No. 77, as requiring like consent to removals.⁸⁶ Limiting further execu-

Page 294

tive prerogatives customary in monarchies, the Constitution empowered Congress to vest the appointment of inferior officers, 'as we think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.' Nothing in support of the claim of uncontrollable power can be inferred from the silence of the convention of 1787 on the subject of removal. For the outstanding fact remains that every specific proposal to confer such uncontrollable power upon the President was rejected.⁸⁷ In America, as in England, the conviction prevailed then that the people must look to representative

Page 295

assemblies for the protection of their liberties. And protection of the individual, even if he be an official, from the arbitrary or capricious exercise of power was then believed to be an essential of free government.

           Mr. Justice HOLMES, dissenting.

          My Brothers McREYNOLDS and BRANDEIS have discussed the question before us with exhaustive research and I say a few words merely to emphasize my agreement with their conclusion.

          The arguments drawn from the executive power of the President, and from his duty to appoint officers of the United States (when Congress does not vest the appointment elsewhere), to take care that the laws be faithfully executed, and to commission all officers of the United States, seem to me spiders' webs inadequate to control the dominant facts.

          We have to deal with an office that owes its existence to Congress and that Congress may abolish to-morrow. Its duration and the pay attached to it while it lasts depend on Congress alone. Congress alone confers on the President the power to appoint to it and at any time may transfer the power to other hands. With such power over its own creation, I have no more trouble in believing that Congress has power to prescribe a term of life for it free from any interference than I have in accepting the undoubted power of Congress to decree its end. I have equally little trouble in accepting its power to prolong the tenure of an incumbent until Congress or the Senate shall have assented to his removal. The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.

^{1 Maclay shows the vote 10 to 10. Journal of William Maclay, 116. John Adams' Diary shows 9 to 9. 3 C. F. Adams, Works of John Adams, 412. Ellsworth's name appears in Maclay's list as voting against striking out, but not in that of Adams-evidently an inadvertence.}

² The suggestion that different considerations may possibly apply to nonconstitutional judicial officers I regard as a mere smoke screen.

³ Different phases of this general subject have been elaborately discussed in Congress. See discussions on the following meaures: Bill to establish a Department of Foreign Affairs, 1789, Annals 1st Cong.; bill to amend the judicial system of the United States, 1802, Annals 7th Cong., 1st Sess.; bill to amend Act of May 15, 1820, fixing tenure of certain offices, 1835, Debates 23d Cong., 2d Sess.; bill to regulate the tenure of certain civil offices, 1866-67, Globe, 39th Cong., 3d Sess.; Johnson impeachment trial, 1868, Globe Supplement, 40th Cong., 2d Sess.

⁴ This debate began May 19 in the committee of the whole on Mr. Madison's motion: 'That it is the opinion of this committee, that there shall be established an executive department, to be denominated the Department of Foreign Affairs, at the head of which there shall be an officer, to be called the Secretary to the Department of Foreign Affairs, who shall be appointed by the President, by and with the advice and consent of the Senate, and to be removable by the President.'

The words, 'who shall be appointed by the President, by and with the advice and consent of the Senate,' were objected to as superfluous, since 'the Constitution had expressly given the power of appointment in the words there used,' and Mr. Madison agreed to their elimination.

Doubts were then expressed whether the officer could be removed by the President. The suggestion was that this could only be done by impeachment. Mr. Madison opposed the suggestion, and said: 'I think the inference would not arise from a fair construction of the words of that instrument. * * * I think it absolutely necessary that the President should have the power of removing from office. * * * On the constitutionality of the declaration I have no manner of doubt.'

Thereupon Mr. Vining, of Delaware, declared: 'There were no negative words in the Constitution to preclude the President from the exercise of this power; but there was a strong presumption that he was invested with it, because it was declared, that all executive

power should be vested in him, except in cases where it is otherwise qualified; as, for example, he could not fully exercise his executive power in making treaties, unless with the advice and consent of the Senate-the same in appointing to office.'

Mr. Bland and Mr. Jackson further insisted that removal could be effected only through impeachment, and Mr. Madison replied: He 'did not conceive it was a proper construction of the Constitution to say that there was no other mode of removing from office than that by impeachment; he believed this, as applied to the judges, might be the case; but he could never imagine it extended in the manner which gentlemen contended for. He believed they would not assert, that any part of the Constitution declared that the only way to remove should be by impeachment; the contrary might be inferred, because Congress may establish offices by law; therefore, most certainly, it is in the discretion of the legislature to say upon what terms the office shall be held, either during good behavior or during pleasure.'

Later in the day Mr. Madison discussed various objections offered and said: 'I cannot but believe, if gentlemen weigh well these considerations, they will think it safe and expedient to adopt the clause.' Others spoke briefly, and then, as the record recites, 'The question was now taken, and carried by a considerable majority, in favor of declaring the power of removal to be in the President.' The resolution was reported; the Hosue concurred; and a committee (including Mr. Madison) was appointed to prepare and bring in a bill.

On June 2 the committee reported a bill, providing for a Secretary, 'to be removable from office by the President of the United States,' which was read and referred to the committee of the whole. It was taken up for consideration June 16, and the discussion continued during five days. Members expressed radically different views. Among other things Mr. Madison said:

'I have, since the subject was last before the House, examined the Constitution with attention, and I acknowledge that it does not perfectly correspond with the ideas I entertained of it from the first

glance. * * * By a strict examination of the Constitution, on what appears to be its true principles, and considering the great departments of the government in the relation they have to each other, I have my doubts whether we are not absolutely tied down to the construction declared in the bill. * * *

'If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the Constitution, and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the Legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill.'

June 19, 'the call for the question being now very general, it was put, Shall the words 'to be removable by the President,' be struck out? It was determined in the negative; being yeas 20, nays 34.' There were further remarks, and 'the committee then rose and reported the bill * * * to the House.'

Discussion of the disputed provision was renewed on June 22. Mr. Benson moved to amend the bill 'so as to imply the power of removal to be in the President,' by providing for a chief clerk, who should have custody of the records, etc., 'whenever the said principal officer shall be removed from office by the President of the United States, or in any other case of vacancy.' He 'hoped his amendment would succeed in reconciling both sides of the House to the decision and quieting the minds of gentlemen.' If successful, he would move to strike out the words, 'to be removable by the President.' After a prolonged discussion the amendment prevailed, the much-challenged clause was striken out, and the ambiguous one suggested by Mr. Benson was inserted. June 24 the bill, thus amended, finally passed.

Five members, once delegates to the Constitutional Convention, took part in the debate. Mr. Madison, Mr. Baldwin, and Mr. Clymer expressed similar views; Mr. Sherman and Mr. Gerry were emphatically of the contrary opinion.

⁵ Officers with commissions is the State Department who were removed: Collectors of customs, 17; collectors and inspectors, 25; surveyors of ports, 4; surveyors and inspectors, 9; supervisors, 4; naval officers, 4; marshals, 28; district attorneys, 23; principal assessors, 3; collectors of direct taxes, 4; consuls, 49; ministers abroad, 5; charges des affaires, 2; secretaries of legation, 3; Secretary of State, 1; Secretary of War. 1; Secretary of the Treasury, 1; Secretary of the Navy, 1; Attorney General, 1; Commissioner of Loans, 1; receivers of public moneys, 2; registers of land offices, 2; agent of the Creek Nation, 1; Register of the Treasury, 1; Comptroller of the Treasury, 1; auditors, 2; Treasurer of the United States, 1; Treasurer of the Mint, 1; Commissioner of Public Buildings, 1; Recorder of Land Titles, 1; judge of territory, 1; secretaries of territories, 2; commissioner for the adjustment of private land claims, 1; surveyors general, 2; surveyors of the public lands, 3.

Officers in the Treasury Department who were removed: Surveyor and inspector, 1; naval officer, 1; appraisers, 2; collectors, 2; surveyors, 2; receivers of public moneys, 12; registers of the land office, 4.

⁶ Mr. Lee (theretofore Attorney General of the United States), counsel for Marbury, distinctly claimed that the latter was appointed to serve for a definite term independent of the President's will, and upon that predicate rested the legal right which he insisted should be enforced by mandamus. Unless that right existed there was no occasion-no propriety, indeed-for considering the court's power to declare an act of Congress invalid.

⁷ At this time the power of the court to declare acts of Congress unconstitutional was being vigorously denied. The Supreme Court, by Chas. Warren, vol. 1.

¹ Prior to the Act of July 2, 1836, c. 270, § 33, 5 Stat. 80, 87, all postmasters were appointed by the Postmaster General. Fourth class postmasters are still appointed by him. See Acts of May 8, 1794, c. 23, § 3, 1 Stat. 354, 357 (Comp. St. § 567); April 30, 1810, c. 37, §§ 1, 5, 28, 40, 42, 2 Stat. 592; March 3, 1825, c. 64, § 1, 4 Stat. 102; March 3, 1863, c. 71, § 1, 12 Stat. 701; July 1, 1864, c. 197, § 1, 13 Stat. 335.

² The removal provision was introduced specifically into the postal legislation by Act Jan. 8, 1872, c. 335, § 63, 17 Stat. 283, 292, and re-enacted, in substance, in Act June 23, 1874, c. 456, § 11, 18 Stat. 231, 234 in the Revised Statutes, § 3830, and the Act of 1876 (see Comp. St. §§ 7189, 7190).

³ During the year ending June 30, 1913, there were in the civil service 10,543 presidential appointees. Of these 8,423 were postmasters of the first, second and third classes. Report of U. S. Civil Service Commission for 1913, p. 8. During the year ending June 30, 1923, the number of presidential appointees was 16,148. The number of postmasters of the first, second and third classes was 14,261. Report for 1923, pp. xxxii, 100.

⁴ In McAllister v. United States, 141 U. S. 174, 189, 11 S. Ct. 949, 954 (35 L. Ed. 693) it was said by this court of the decision in Marbury v. Madison: 'On the contrary, the Chief Justice asserted the authority of Cougress to fix the term of a justice of the peace in the District of Columbia beyond the power of the President to lessen it by removal. * * *' The same significance is attached to the decision in 1 Kent, Commentaries (12th Ed.) 311, note 1.

Reverdy Johnson, who had been Attorney General, said of Marbury v. Madison, while addressing the Senate on Jan. 15, 1867, in opposition to the tenure of office bill: 'But, says my brother and friend from Oregon, that case decided that the President had no right to remove. Surely that is an entire misapprehension. The Constitution gives to the President the authority to appoint, by and with the advice and consent of the Senate, to certain high offices, but gives to Congress the power to vest the appointment and to give the removal of inferior officers to anybody they think proper; and these justices of the peace were inferior and not high officers within the meaning of those two terms in the Constitution. Congress, therefore, by providing that such an officer should hold his commission for four years, removed the officer from the power of removal of the President, as they could have taken from him the power to appoint. Nobody doubts that if they were inferior officers, as

they were, Congress might have given the power to appoint those officers to the people of the district by election, or to any individual that they might think proper, or to any tribunal other than the executive department of the government. They had a right, although they thought proper to give it to the President himself, to provide that it should endure for four years against any such power of removal.' That is all the case decided upon that question.' Cong. Globe, 39th Cong. 2d Sess., 461. See note 71, infra.

⁵ In United States v. Avery, Deady, 204, Fed. Cas. No. 14,481, the statute creating the office did not prescribe a fixed tenure and there was no provision for removal only by and with the consent of the Senate. In United States v. Guthrie, 17 How. 284, 305, 15 L. Ed. 102, Mr. Justice McLean, dissenting, denied that the President's power of removal was uncontrollable. In Ex parte Hennen, 13 Pet. 230, 238 (10 L. Ed. 138), it was stated that, where the power of appointment is vested in the head of a department, 'the President has certainly no power to remove.'

State courts have uniformly held that, in the absence of express provision in their constitution to the contrary, legislative restrictions upon the power of removal by the Governor, or other appointing power, are valid as applied to persons holding statutory officers. Commonwealth v. Sutherland, 3 Serg. & R. (Pa.) 145, 155; Commonwealth v. Bussier, 5 Serg. & R. (Pa.) 451; also Bruce v. Matlock, 86 Ark. 555, 111 S. W. 990; People v. Jewett, 6 Cal. 291; Gray v. McLendon, 134 Ga. 224, 67 S. E. 859: Dubuc v. Voss, 19 La. Ann. 210, 92 Am. Dec. 526; State v. Cowen, 96 Ohio St. 277, 117 N. E. 238; Att'y Gen'l v. Brown, 1 Wis. 513. Compare Rankin v. Jauman, 4 Idaho, 53, 36 P. 502; State v. Curtis, 180 Ind. 191, 102 N. E. 827; Shira v. State, 187 Ind. 441, 119 N. E. 833; State v. Henderson, 145 Iowa, 657, 124 N. W. 767, Ann. Cas. 1912A, 1286; Markey v. Schunk, 152 Iowa, 508, 132 N. W. 883; State v. Martin, 87 Kan. 817, 126 P. 1080; State v. Sheppard, 192 Mo. 497, 91 S. W. 477; State v. Sanderson, 280 Mo. 258, 217 S. W. 60; State v. District Court, 53 Mont. 350, 165 P. 294; State v. Archibald, 5 N. D. 359, 66 N. W. 234; State v. Ganson, 58 Ohio St. 313, 50 N. E. 907; Cameron v. Parker, 2 Okl. 277, 38 P. 14; Christy v. City of Kingfisher, 13 Okl. 585, 76 P. 135; State v. Hewitt, 3 S. D. 187, 52 N. W. 875, 16 L. R. A. 413, 44 Am. St. Rep. 788; State v. kipp, 10 S. D. 495, 74 N. W. 440; Skeen v. Paine, 32 Utah, 295, 90 P. 440; State v. Burke, 8 Wash. 412, 36 P. 281; State v. Grant, 14 Wyo. 41, 81 P. 795, 82 P. 2, 1 L. R. A. (N. S.) 588, 116 Am. St. Rep. 982.

⁶ Power to remove has been held not to be inherently an executive power in states whose Constitution provides in terms for separation of the powers. See note 12, infra; also Dullam v. Willson, 53 Mich. 392, 19 N. W. 112, 51 Am. Rep. 128.

⁷ 'If a law were to pass, declaring that district attorneys, or collectors of customs, should hold their offices four years, unless removed on conviction for misbehavior, no one could doubt its constitutional validity, because the Legislature is naturally competent to prescribe the tenure of office. And is a reasonable check on the power of removal any thing more than a qualification of the tenure of office?' Webster, Feb. 16, 1835, 4 Works (8th Ed.) 197.

'It is the legislative authority which creates the office, defines its duties, and may prescribe its duration. I speak, of course, of offices not created by the Constitution, but the law. The office, coming into existence by the will of Congress, the same will may provide how, and in what manner, the office and the officer shall both cease to exist. It may direct the conditions on which he shall hold the office, and when and how he shall be dismissed.' Clay, Feb. 18, 1835, 11 Cong. Deb. 518.

'Congress shall have power to make all laws, not only to carry into effect the powers expressly delegated to itself, but those delegated to the government, or any department of office thereof, and of course comprehends the power to pass laws necessary and proper to carry into effect the powers expressly granted to the executive department. If follows, of course, to whatever express grant of power to the executive the power of dismissal may be supposed to attach, whether to that of seeing the law faithfully executed, or to the still more comprehensive grant, as contended for by some, vesting executive powers in the President, the mere fact that it is a power appurtenant to another power, and necessary to carry it into effect, transfers it, by the provisions of the Constitution cited, from the executive to Congress, and places it under the control of Congress, to be regulated in the manner which it may judge best.' Calhoun, Feb. 20, 1835, 11 Cong. Deb. 553.

⁸ See Debate of 1789 (June 17), Stone: 'All the difficulties and embarrassments that have been mentioned can be removed by giving to the President the power of suspension during the recess of the Senate, and I think that an attention to the Constitution will lead us to decide that this is the only proper power to be vested in the President of the United States.' 1 Ann. Cong. 495; also Gerry, 1 Ann. Cong. 504; Sherman, 1 Ann. Cong. 492; Jackson, 1 Ann. Cong. 489.

⁹ New York. Constitution of 1777, amended 1801. The powers of appointment and removal were vested in the council of appointment. People v. Foot, 19 Johns. (N. Y.) 58. By later Constitutions or amendments varying restrictions were imposed on the Governor's power of removal. 4 Lincoln, Constitutional History of New York, 554-594, 724-733. Massachusetts. Constitution of 1780. Appointments to be made by Governor with the advice and consent of the council. No express provision for removals. By early practice the council was associated with the Governor in removals. The constitutional amendment of 1855, altering the manner of appointment left the practice as to removals unchanged. Opinion of the Justices, 3 Gray (Mass.) 601, 605. New Hampshire. Constitution of 1784. Provision and practice the same as Massachusetts. By Laws 1850, c. 189, § 4, the Legislature further limited the Governor's power of removal over certain inferior offices. New Jersey. Constitution of 1776. The 'supreme executive power' of the Governor was limited to commissioning officers appointed by the council and assembly. Pennsylvania. Constitution of 1790. Appointing power vested in the Governor alone. In the absence of restrictive legislation he exercised the power of removal. Biddle, Autobiography, 283. Control by the Legislature of his power of removal from inferior offices had early judicial sanction. Commonwealth v. Sutherland, 3 Serg. & R. (Pa.) 145. Maryland. The Governor seems to have had such power under the Constitution of 1776, but it was later taken away. The constitutional convention of 1851 considered, but refused to grant the Governor, the sole power of removal. Cull v. Wheltle, 114 Md. 58, 80, 78 A. 820. Illinois. Constitution of 1818 was construed as denying the power of removal to the Governor acting alone. Field v. People, 2 Scam. (Ill.) 79. The Constitution of 1870 (article 5, § 12) conferred the power, but only for certain specified causes. In Maine and Florida, concurrent action of the Senate is a constitutional requirement. Opinion of the Justices, 72 Me. 542; Advisory Opinion to the Governor, 69 Fla. 508, 68 So. 450.

¹⁰ The Pennsylvania Constitution of 1873 provided that 'appointed officers * * * may be removed at the pleasure of the power by which they shall have been appointed.' Article 6, § 4. The Supreme Court held as to petty officers or subordinate ministerial agents appointed by the Governor, that his power of removal is controllable, and that a statute prohibiting removal except for specified causes is valid. Commonwealth v. Black, 201 Pa. 433, 50 A. 1008. Officials deemed agents of the Legislature are also held to be without the scope of the Governor's power of removal. Commonwealth v. Benn, 284 Pa. 421, 131 A. 253.

¹¹ Oregon has by statute conferred a general power of removal upon the Governor. 1920 Olson's Oregon Laws, § 4043. Vermont had also vested the power of removal with the Governor. 1917 Vt. Gen. Laws, § 356. It later, however, placed restrictions upon the Governor's power of removing members of the state board of education. 1917 Vt. Gen. Laws, § 1170. See Wyoming Act Feb. 20, 1905, c. 59; State v. Grant, 14 Wyo. 41, 59, 60, 81 P. 795, 82 P. 2, 1 L. R. A. (N. S.) 588, 116 Am. St. Rep. 982. Compare State v. Peterson, 50 Minn. 239, 52 N. W. 655; State v. Hawkins, 44 Ohio St. 98, 5 N. E. 228.

¹² By statute, in some states, removals can be made only upon concurrence of the Senate or Legislature with the Governor. 1914 Ga. Civ. Code, § 2618; 1924 Iowa Code, § 315; N. Y. Consol. Laws, c. 46, § 32; 1921 Throckmorton Ohio Gen. Code, § 13; 1913 Pa. Laws 1374, 1401 (Pa. St. 1920, § 18119); 1923 R. I. Gen. Laws § 384; 1924 Va. Code, § 330. In some, the Governor is required merely to record his reasons for dismissal. Conn. Gen. St. § 86; 1905 Wyo. Laws, c. 59. In many states, the power of removal is limited by statute to specific instances of misconduct or misbehavior in office. 1921 Colo, Comp. Laws, § 138; Carroll's Ky. Stats. § 3750; 1915 Mich. Comp. Laws, §§ 243, 252 (during recess of Legislature only); 1913 N. D. Comp. Laws, § 685; 1910 Okl. Rev. Stats. § 8052; 1919 S. D. Rev. Code, § 7009, 7010; 1917 Utah Comp. Laws, § 5684 (during recess of Legislature only); 1893 Wash. Laws, c. 101. In addition, a statement of record of the reasons for dismissal is often required. 1913 Ariz. Civ. Cide, § 247 (inspector of apiaries), section 4757 (board of dental examiners), section 4779 (board of embalmers); 1914 Ga. Code, § 1697(b) (board of medical examiners), section 1963 (state geologist); 1919 Idaho Comp. Stats. § 793 (board of education), section 2398 (utility commissioners); 1855 La. Acts, No. 297, § 13 (public weighers); 1910 Md. Laws, c. 180, § 2 (utility commissioners); 1923 Minn. Gen., Stats. § 2229 (tax officers), section 2356 (tax commission); 1912 Nev. Rev. Laws, § 4432 (dental examiners); 1910 N. Y. Laws, c. 480 (Consol. Laws, c. 48) § 4 (Public Service Commission); 1921 N. Y. Laws, c. 134 (transit commission); 1921 Throckmorton Ohio Gen. Laws, § 88 (board of clemency), section 488 (utility commissioners), section 486-3 (civil service commissioners), section 710-6 (superintendent of banks), section 744-16 (commissioner of securities), section 871-2 (industrial commission), section 1337 (board of embalming examiners), section 1465-2 (tax commission); 1917 Vt. Gen. Laws, § 1170 (board of education). In other states, or for other officers, the laws require the existence of 'cause' or provide for notice and hearing. 1919 Mo. Rev. Stat. § 10414 (utility commissioners); 1921 Mont. Pol. Code, § 2820 (industrial accident commission); N. Y. Consol. Laws, c. 46, § 33 (officials appointed by Governor alone); 1921 Throckmorton Ohio Gen. Laws, § 1236-4 (board of health), section 1380 (commissioners of state laws); 1920 Tex. Comp. Stats. art. 4995b (board of water engineers), article 6027 (appointees of Governor), article 6195 (board of prison commissioners), article 6286 (board of pharmacy); 1923 Wis. Stats. § 17.07 (appointees of Governor). Some statutes make removal dependent upon the recommendation of a board. 1920 Tex. Comp. Stats. art. 5927 (mining inspectors).

¹³ Removals made from 1789 to 1829 of presidential appointees, exclusive of military officers, were as follows: Washington-17, Adams-19, Jefferson-62, Madison-24, Monroe-27, J. Q. Adams-7, being a total of 156. Fish, Removal of Officials, 1899 Am. Hist. Ass'n Rep. 67. Compare Sen. Rep. No. 576, 47th Cong., 1st Sess., Ser. No. 2006, p. iv. 'It was the intention of the founders of our government that administrative officers should hold office during good behavior. * * * Madison, the expounder of the Constitution, said that the wanton removal of a meritorious officer was an impeachable offense. It was the established usage without question or variation during the first 40 years of our government to permit executive officers, except members of the Cabinet, to hold office during good behavior, and this practice was only changed by the 4-year tenure act of 1820, which was passed at the instance of an appointing officer for the purpose of using this power to secure his nomination as a presidential candidate.' Report of U. S. Civil Service Commission for 1896, pp. 28, 29.

¹⁴ Fish, Civil Service and Patronage, 66-70. Madison, in commenting upon the Four-Year Limitation Act of 1820 to President Monroe, recognized the necessary identity of a power to prescribe qualifications of tenure and a power to remove from office. 'Is not the law vacating periodically the described offices an encroachment on the Constitutional attributes of the Executive? * * * If a law can displace an officer at every period of four years, it can do so at the end of every year, or at every session of the Senate; and the tenure will then be the pleasure of the Senate as much as of the President, and not of the President alone.' 3 Letters and Writings, 200.

¹⁵ The provisions of the acts of 1789, 1791, 1792, 1836, and 1854 were re-enacted in the Revised Statutes and are still in force. Rev. Stats. §§ 243, 244, 2242 (Comp. St. §§ 377, 378, 4482), and section 3947, as amended (Comp. St. § 10392). Mandatory directions of dismissal for specified offenses are also contained in Act March 2, 1867, c. 172, § 3, 14 Stat. 489, 492, reenacted in Rev. Stats. § 1546 (Comp. St. § 2798), Act Feb. 1, 1870, c. 11, 16 Stat. 63, re-enacted in Rev. Stats. § 1784 (Comp. St. § 3264), and Act Aug. 15, 1876, c. 287, § 6, 19 Stat. 143, 169 (Comp. St. § 3270). From the operation of the latter act executive officers and employees appointed by the President by and with the advice and consent of the Senate are significantly excepted.

¹⁶ Removals made from 1829 to 1869 of presidential appointees, exclusive of military officers, were as follows: Jackson-180, Van Buren-43, Harrison and Tyler-389, Polk-228, Taylor-491, Fillmore-73, Pierce-771, Buchanan-253, Lincoln-1,400, Johnson-726, being a total of 4,554. Fish, Removal of Officials, 1899 Am. Hist. Ass'n Rep. 67. The great increase in removals under President Jackson included offices besides those to which appointments were made by the President and Senate, the accepted estimate during the first year of his administration being 2,000. 2 Story, Constitution, § 1543; House Rep. No. 47, 40th Cong., 2d Sess., Ser. No. 1352, p. 8. Of these 491 were postmasters. 1 Am. States Papers, Post Office, 242. The increase in the number of such removals is testified to by the incomplete reports of the following years. The Post Office Department consistently suffered most. See Lucy Salmond, History of the Appointing Power, 1 Am. Hist. Ass'n Papers, No. 5, pp. 67-86.

¹⁷ It was amended by Act of April 5, 1869, c. 10, 16 Stat. 6.

¹⁸ On February 8, 1887, while the bill for the repeal of the Tenure of Office Act was pending, the committee on post offices and post roads reported a bill, H. R. 11108, for reclassifying postmasters into three classes, and provided (section 1) that: 'Postmasters of the First and second classes shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years, subject to the provisions of law respecting their removal or suspension, and the filling or vacancies occurring when the Senate shall not be in session. * * * Postmasters of the third class shall be appointed and commissioned by the Postmaster General, and hold their offices during his pleasure.' 18 Cong. Rec. 1498. The bill was not considered by Congress.

On January 5, 1892, Sherman Hoar introduced a bill (H. R. 196) to provide that all postmasters should hold office during good behavior. 23 Cong. Rec. 130. Section 1 contained the following proviso: 'Provided, however, that the President may at any time remove or suspend a postmaster for cause stated.' On December 22, 1895, De Forest introduced H. R. 8328, 27 Cong. Rec. 576. Section 2 provided: 'That postmasters of all classes now in office of hereafter to be appointed shall be appointed to hold their officers for good behavior; Provided that the President may at any time remove or suspend a postmaster of the first, second or third class for cause, communicated in writing to the Senate at the next subsequent session of Congress after such removal, and that the Postmaster General may at any time remove or suspend a postmaster of the fourth class for cause, communicated in the letter of removal.' Section 3 forbade appointment, removal, or suspension for political reasons. On January 28, 1896, Gillett introduced the identical bill (H. R. 8328). 28 Cong. Rec. 1061. None of these three bills was considered even by a committee.

¹⁹ This provision was re-enacted by Rev. Stats. § 1229 (Comp. St. § 2001). Comp. Sen Rep. Apr. 4, 1864, No. 42, 38th Cong. 1st Sess., Ser. No. 1178. In Blake v. United States, 103 U. S. 227, 237 (26 L. Ed. 462) this provision was interpreted as not denying 'the power of the President, by and with the advice and consent of the Senate, to displace them by the appointment of others in their places.' The Act of June 4, 1920, c. 227, art. 118, 41 Stat. 759, 811 (Comp. St. § 2308a) provides:

'Art. 118. Officers; Separation from Service.-No officer shall be discharged or dismissed from the service except by order of the President or by sentence of a general court-martial; and in time of peace no officer shall be dismissed except in pursuance of the sentence of a general court-martial or in mitigation thereof; but the President may at any time drop from the rolls of the Army any officer who has been absent from duty three months without leave or who has been absent in confinement in a prison or penitentiary for three months after final conviction by a court of competent jurisdiction.'

²⁰ See note 4, p. 67, supra.

²¹ See Lawrence, June 17, 1 Ann. Cong. 483, 484; Smith, june 17, 1 Ann. Cong. 508, 509; Madison, June 18, 1 Ann. Cong. 547, 548. A few days subsequent to the debate on the removal provision in the act establishing a Department of Foreign Affairs, Madison, although he believed that the power to prescribe the tenure of office and the power of removal were in essence the same, moved to amend the act establishing a Treasury Department by providing that the Comptroller should hold office for a limited period of years. To the objection that such a provision was not within the power of Congress he replied: 'When I was up before * * * I endeavored to show that the nature of this office differed from the others upon which the House had decided, and, consequently, that a modification might take place, without interfering with the former distinction; so that it cannot be said we depart from the spirit of the Constitution.' 1 Ann. Cong. 614. Stone, in support of Madison, added: 'As the Comptroller was an inferior officer, his appointment might be vested in the President by the Legislature; but, according to the determination which had already taken place, it did not necessarily follow that he should have the power of dismissal; and before it was given, its propriety ought to be apparent.' 1 Ann. Cong. 613. See note 71, infra.

²² In 1830, Senator Barton, in defense of his resolutions denying an uncontrollable presidential power of removal, said: 'It is no question whether a President may remove, at his own will and pleasure, his Secretary of State. That was the very question before Congress in the great debate of 1789. * * * Nobody would wish to force a disagreeable member of the Cabinet on the President. * * * But the class of officers now before the Senate, and their predecessors, attempted to be removed by the President, were not under consideration in the debate of 1789. This is a class of public officers-or officers of the law-whose term, tenure, and duties of office are fixed and prescribed by the laws of the land, and not by the executive will, as in the other class. * * * The power is now boldly asserted on this floor by the majority, for the first time since the foundation of the Republic, of removing this class of federal officers by the President at discretion, without the slightest restraint by the Senate.' 6 Cong. Deb. 458, 459. The same distinction was taken in 1835, by Senators Wright and White, in the debate on the Executive Patronage Bill. 11 Cong. Deb. 480, 487.

On June 15, 1844, the Senate committee on retrenchment, dealing with the evils of executive patronage, said: 'It will be sufficient for the committee to show that Congress may regulate, by law, as well the power to appoint inferior officers as to remove them. * * * The committee will not protract the argument. It is not known to them that the power of Congress to regulate the appointment and removal of inferior officers has been questioned. It is very certain that the authority of the President to control the departments in the exercise of the power has not at any time been recognized by law.' Sen. Dec. No. 399, 28th Cong. 1st Sess., Ser. No. 437, pp. 29, 30.

²³ In six instances President Johnson in separate messages communicated his reasons for suspension. 16 Ex. Journ. 3, 109, 110, 122, 133. In two further instances misconduct was given as the ground for suspension. 16 Id. 1.

²⁴ Five cases of this nature are on record. 16 Ex. Journ. 411, 412.

²⁵ From President Grant's administration to the close of the first two years of President Cleveland's first administration, nominations of officials to succeed those who had been suspended during the recess follow one of two forms: 'I nominate A. B., who was designated during the recess of the Senate, to be ___, vice C. D., suspended,' or 'I nominate A. B. to be postmaster at ___ in place of C. D., suspended under the provisions of the seventeen hundred and sixty-eighth section of the Revised Statutes of the United States.' These forms are not used after March 3, 1887. The case of A. C. Botkin, marshal of Montana Territory, is illustrative of the fact that suspension and not removal could be effected during the recess. On January 28, 1885, President Arthur nominated E. A. Kreidler in place of A. C. Botkin to be removed. 24 Ex. Journ. 425. The Senate failed to act upon the nomination and on December 21, 1885, President Cleveland nominated R. S. Kelly, vice A. C. Botkin, suspended. For several months action upon the nomination was delayed and on April 28, 1886, the President sent the following message to the Senate: 'I nominated Robert S. Kelly, of Montana, to the Senate on the 21st day of December, 1885. * * * in the place of A. C. Botkin, who was by me suspended under the provisions of section 1768 of the Revised Statutes. On the 12th day of April 1886, the term of office for which said A. C. Botkin was originally appointed expired; and I renew the nomination of Robert S. Kelly, of Montana * * * in the place of the said A. C. Botkin, whose term of office has so expired as aforesaid.' 25 Ex. Journ. 441. These years of President Cleveland disclose 78 other cases of a similar nature. Id. 396-410, 426, 436, 441, 488, 490-494, 497, 501, 516, 539, 563, 714, 715.

²⁶ On Dec. 6, 1869, President Grant requested the consent of the Senate to the removal of certain Indian agents, to whose posts army officers had been assigned. 17 Ex. Journ. 289. On May 17, 1872, the Senate gave its consent to the removal of T. H. Bazin, appraiser of merchandise at Charleston, S. C. 18 Ex. Journ. 251. On Dec. 4, 1878, President Hayes requested the Senate's consent to the removal of A. M. Devereux, a third lieutenant in the revenue service. 21 Ex. Journ. 393. The Senate during that session took no action. To the three succeeding sessions of the Senate the same request was made without securing its consent. 22 Ex. Journ. 23, 108, 410. President Garfield likewise made the same request but failed to secure any action by the Senate. 23 Ex. Journ, 9, 29. On April 15, 1884, President Arthur recommended to the Senate the removal of F. N. Wicker as collector of customs at Key West. 24 Ex. Journ. 246. The Senate concurred in his removal without expressing an opinion upon the constitutional powers of the President and Senate upon the subject of removal. Id. 249.

²⁷ The instances are numerous and a few illustrations will suffice. On March 2, 1883, Paul Strobach was nominated as a marshal, vice M. C. Osborn, to be removed. 23 Ex. Journ. 711. The Senate took no action during that session and in the recess Osborn was suspended. Strobach was again nominated but was rejected at the next session of the Senate. Thereupon on May 8, 1884, J. H. Speed was nominated, 'vice Paul Strobach, temporarily appointed during the recess of the Senate.' 24 Ex. Journ. 265. Pending action upon the nomination President Arthur on May 14, 1884, again nominated J. H. Speed, 'vice M. C. Osborn, whose term has expired. This nomination is made to correct an error in the nomination of Joseph H. Speed to the above-named office, which was delivered to the Senate on the 8th instant, and which is hereby withdrawn.' 24 Ex. Journ. 267. The correction expressly recognizes that Osborn had never ceased to hold office. Compare 15 Op. A. G. 375. Again, on March 2, 1884, Windus was nominated as a postmaster, vice Lambert, 'whose removal for cause is hereby proposed.' 24 Ex. Journ. 220. The Senate rejected Windus, and on December 17, 1885, President Cleveland nominated Gildea, vice Lambert, 'whose commission expired May 13, 1885.' 25 Ex. Journ. 228. On January 6, 1885, Richardson was nominated as a postmaster, vice Corson, 'whose removal for cause is hereby proposed.' 24 Ex. Journ. 412. The Senate failed to act upon the nomination, and on April 1, 1885, Cleveland nominated Bonner to the post, vice Corson, 'whose removal for cause is hereby proposed.' 25 Ex. Journ. 45.

²⁸ Since the enactment of the Tenure of Office Act various forms have been used to nominate officials to succeed those whose removal is thereby sought. Examination of their use over a period of 32 years indicates that no significance is to be attached to the use of any particular from. Thus the nomination is sometimes in the form A. B., vice C. D., 'removed'; sometimes it is 'to be removed'; sometimes, 'removed for cause'; sometimes, 'whose removal for cause is hereby proposed.'

                                                                 "Whose Removal
                                                                    for Cause
                                          "To be      "Removed      is Hereby
                            "Removed."    Removed."   for Cause."   Proposed."
 
 1867-1869 (Johnson).........   37           72             3
 
 1869-1873 (Grant)...........  468           464           17
 
 1873-1877 (Grant)...........  120           144           19
 
 1877-1881 (Hayes)...........    8           102           10           42
 
 1881      (Garfield)........    1            14                        19
 
 1881-1885 (Arthur)..........    4            78                        69
 
 1885-1887 (Cleveland).......   15            19                        24
 
 1887-1889 (Cleveland).......  178             1
 
 1889-1893 (Harrison)........ 1080           118            9
 
 1893-1897 (Cleveland).......  808           101
 
 1897-1899 (McKinley)........  813            26
 

Postmasters will be found included within all these categories. 16-31 Ex. Journ., passim. The form 'who has been removed' was twice used by President Grant and once by President Harrison. On one occasion President Grant used the form 'whom I desire to remove,' and on six occasions President Hayes used the form 'to be thus removed.' The simple form 'removed,' which has been exclusively used for postmasters since 1887, does not imply that removal has already been accomplished. That form was used in the Parsons and Shurtleff Cases, where the notification of removal sent to the incumbent stated that the removal would take effect upon the qualification of a successor. 29 Ex. Journ. 11; 31 Ex. Journ. 1328.

²⁹ Cases in this Court dealing with the removal of civil officers, appointed by the President with the advice and consent of the Senate, illustrate the practice of securing their removal by the appointment of a successor. In recent years the formal notification of removal commonly reads: 'Sir: You are hereby removed from the office of —, to take effect upon the appointment and qualification of your successor.' Parsons v. United States, 167 U. S. 324, 325, 17 S. Ct. 880, 42 L. Ed. 185; Shurtleff v. United States, 189 U. S. 311, 312, 23 S. Ct. 535, 47 L. Ed. 828.

³⁰ Provisions authorizing removal for—

(a) Inefficiency, neglect of duty, malfeasance in office, but for no other cause: Act May 27, 1908, c. 205, § 3, 35 Stat. 403, 406, amending Act June 10, 1890, c. 407, § 12, 26 Stat. 131, 136 (Comp. St. § 5593), Board of General Appraisers; Act July 15, 1913, c. 6, § 11, 88 Stat. 103, 108 (Comp. St. § 8676), Commissioner of Mediation and Conciliation (misconduct in office only); Act June 2, 1924, c. 234, § 900b, 43 Stat. 253, 336 (Comp. St. § 6371 5/6 b), Board of Tax Appeals.

(b) Neglect of duty or malfeasance in office, but for no other cause: Act Feb. 28, 1920, c. 91, § 306(b), 41 Stat. 456, 470 (Comp. St. § 10071 1/4 gg), Railroad Labor Board; Act Sept. 22, 1922, c. 412, § 1, 42 Stat. 1023, amended by Act March 4, 1923, c. 248, § 1, 42 Stat. 1446, United States Coal Commission.

(c) Inefficiency, neglect of duty, malfeasance in office, not restricting, however, under United States v. Shurtleff, 189 U. S. 311, 23 S. Ct. 535, 47 L. Ed. 828, the President's power to remove for other than the causes specified: Act Feb. 4, 1887, c. 104, § 11, 24 Stat. 379, 383 (Comp. St. § 8575), Interstate Commerce Commission; Act June 10, 1890, c. 407, § 12, 26 Stat. 131, 136 (Comp. St. § 5593), Board of General Appraisers; Act Sept. 26, 1914, c. 311, § 1, 38 Stat. 717, 718 (Comp. St. 8836a), Federal Trade Commission; Act of Sept. 7, 1916, c. 451, § 3, 39 Stat. 728, 729 (Comp. St. 8146b), United States Shipping Board; Act of Sept. 8, 1916, c. 463, § 700, 39 Stat. 756, 795 (Comp. St. § 5326a), United States Tariff Commission.

³¹ Act of June 7, 1878, c. 162, § 1, 20 Stat. 100 justices of the peace of the District of Columbia; Act June 6, 1900, c. 786, § 10, 31 Stat. 321, 325 (Comp. St. § 3572), governor, surveyor general, attorneys, marshals of Alaska; Act Aug. 24, 1912, c. 389, § 6, 37 Stat. 539, 555 (Comp. St. § 3287), removals from the classified civil service to be only for such cause as will promote the efficiency of the service and for reasons stated in writing; Act July 17, 1916, c. 245, § 3, 39 Stat. 360 (Comp. St. § 9835b), Federal Farm Loan Board; Act June 3, 1922, c. 205, 42 Stat. 620 (Comp. St. § 9793), Federal Reserve Board. The provision is also common with respect to judgeships. Act March 19, 1906, c. 960, § 1, 34 Stat. 73 (juvenile court of the District of Columbia); Act June 30, 1906, c. 3934, § 7, 34 Stat. 814, 816 (Comp. St. § 7693), (United States Court for China); Act March 3, 1925, c. 443, § 3a, 43 Stat. 1119 (police court of the District of Columbia).

³² Act May 27, 1908, c. 205, § 3, 35 Stat. 403, 406 (Comp. St. § 5593), does so in express terms. Shurtleff v. United States, 189 U. S. 311, 314, 317, 23 S. Ct. 535, 47 L. Ed. 828, declares that, by construction, every act which prescribes specific causes for removal requires that removal be not made for such cause without a hearing. In Reagan v. United States, 182 U. S. 419, 425, 21 S. Ct. 842, 845 (45 L. Ed. 1162) it was said: 'The inquiry is, therefore whether there were any causes of removal prescribed by law March 1, 1895, or at the time of the removal. If there were, then the rule would apply that where causes of removal are specified by constitution or statute, as also where the term of office is for a fixed period, notice and hearing are essential. If there were not, the appointing power could remove at pleasure or for such cause as it deemed sufficient.' State courts have held that statutes providing for removal 'for cause' require that the appointee be given notice and an opportunity to defend himself. State v. Frazier, 47 N. D. 314, 182 N. W. 545; Street Commissioners v. Williams, 96 Md. 232, 53 A. 923; Ham v. Board of Police, 142 Mass. 90, 7 N. E. 540; Haight v. Love, 39 N. J. Law, 14, affirmed, 39 N. J. Law, 476, 23 Am. Rep. 234; Biggs v. McBride, 17 Or. 640, 21 P. 878, 5 L. R. A. 115.

³³ Act June 3, 1864, c. 106, § 1, 13 Stat. 99, Comptroller of the Currency; Act Feb. 12, 1873, c. 131, § 1, 17 Stat. 424 (Comp. St. § 507), Director of the Mint.

³⁴ The executive orders of January 31, 1902, and January 25, 1906, prescribed dismissal as a penalty for agitation by civil employees for an increase in wages. The executive orders of November 26, 1909, and April 8, 1912, forbade communications to members of Congress save through heads of departments. Report of U. S. Civil Service Commission, for 1912, pp. 23, 24. Section 6 of the act of 1912 was intended to override these orders. See 48 Cong. Rec. 5634-5636. On February 19, 1886, the National Civil Service Reform League in a series of resolutions recommended that the reasons for removal be treated as 'part of the public record.' 5 Civ. Serv. Rec. 92. On August 9, 1890, Commissioner Roosevelt advocated such a restriction upon removals. 10 Civ. Serv. Rec. 26. A bill reported from the select committee of the House on civil service reform in 1891 contained such a provision. House Rep. No. 4038, 51 Cong., 2d Sess., Ser. No. 2890. The Attorney General in 1913 ruled, against an earlier opinion of the Civil Service Commission, that presidential appointees were excluded from the terms of the Act of 1912. 30 Op. A. G. 181. The Civil Service Act of January 16, 1883, c. 27, § 2, 22 Stat. 403, 404 (Comp. St. § 3272) which was approved by President Arthur, had also provided that failure to subscribe to political funds should not be a ground of dismissal.

³⁵ Citizens of—

(a) The United States: Act May 3, 1802, c. 53, § 5, 2 Stat. 195, 196, mayor of the District of Columbia; Act March 1, 1855, c. 133, § 9, 10 Stat. 619, 623, ministers and their subordinates; Act Aug. 18, 1856, c. 127, § 7, 11 Stat. 52, 55, consular pupils; Act June 20, 1864, c. 136, § 2, 13 Stat. 137, 139 (Comp. St. §§ 3154, 3158), consular clerks; Act March 22, 1902, c. 272, 32 Stat. 76, 78, Act Feb. 9, 1903, c. 530, 32 Stat. 807, 809, Act March 12, 1904, c. 543, 33 Stat. 67, 69, Act March 3, 1905, c. 1407, 33 Stat. 915, 917, Act June 16, 1906, c. 3337, 34 Stat. 286, 288, Act Feb. 22, 1907, c. 1184, 34 Stat. 916, 918, Act May 21, 1908, c. 183, 35 Stat. 171, 173, Act March 2, 1909, c. 235, 35 Stat. 672, 674, Act May 6, 1910, c. 199, 36 Stat. 337, 339, Act March 3, 1911, c. 208, 36 Stat. 1027, 1029, Act April 30, 1912, c. 97, 37 Stat. 94, 96, Act Feb. 28, 1913, c. 86, 37 Stat. 688, 689, Act June 30, 1914, c. 132, 38 Stat. 442, 444, Act March 4, 1915, c. 145, 38 Stat. 1116, 1117, Act July 1, 1916, c. 208, 39 Stat. 252, 253, Act March 3, 1917, c. 161, 39 Stat. 1047, 1049, Act April 15, 1918, c. 52, 40 Stat. 519, 520, Act March 4, 1919, c. 123, 40 Stat. 1325, 1327, Act June 4, 1920, c. 223, 41 Stat. 739, 741, Act March 2, 1921, c. 113, 41 Stat. 1205, 1207, Act June 1, 1922, c. 204, 42 Stat. 599, 601, Act Jan. 3, 1923, c. 21, 42 Stat. 1068, 1070, student interpreters for China, Japan, and Turkey; Act April 5, 1906, c. 1366, § 5, 34 Stat. 99, 101 (Comp. St. § 3142), clerks in consular office receiving more than $1,000 per annum; Act July 17, 1916, c. 245, § 3, 39 Stat. 360 (Comp. St. § 9835b), Federal Farm Loan Board; Act Feb. 23, 1917, c. 114, § 6, 39 Stat. 929, 932 (Comp. St. § 9390 1/4 cc), Federal Board for Vocational Education; Act May 24, 1924, c. 182, § 5, 43 Stat. 140, 141 (Comp. St. § 3197 1/4 d), foreign service officers; Act June 7, 1924, c. 287, § 7, 43 Stat. 473, 474 (Comp. St. § 10564 1/2 f), board of advisers to the Federal Industrial Institution for Women.

(b) A state: Act March 3, 1891, c. 539, § 2, 26 Stat. 854, 855, attorney and interpreter for the Court of Private Land Claims.

(c) A particular state: Act July 27, 1854, c. 110, § 1, 10 Stat. 313, commissioner to adjust Indiana land claims; Act March 1, 1907, c. 2285, 34 Stat. 1015, 1036, Act May 30, 1910, c. 260, § 4, 36 Stat. 448, 450, Act June 1, 1910, c. 264, § 7, 36 Stat. 455, 457, Act Aug. 3, 1914, c. 224, § 3, 38 Stat. 681, 682, various commissions to appraise unallotted Indian lands.

(d) A particular territory: Act April 12, 1900, c. 191, § 40, 31 Stat. 77, 86, commission to revise the laws of Porto Rico; Act April 30, 1900, c. 339, §§ 66, 69, 31 Stat. 141, 153, 154 (Comp. St. §§ 3707, 3710), governor and

secretary of Hawaii; Act July 9, 1921, c. 42, §§ 303, 313, 42 Stat. 108, 116, 119 (Comp. St. §§ 3707, 3727), governor, attorney and marshal of Hawaii.

(e) District of Columbia: Act March 3, 1855, c. 199, § 2, 10 Stat. 682 (Comp. St. §§ 9298-9300), board of visitors for Government Hospital for the Insane; Act Feb. 21, 1871, c. 62, § 37, 16 Stat. 419, 426, board of Public works; Act June 11, 1878, c. 180, § 2, 20 Stat. 102, 103, commissioners of the District; Act Sept. 27, 1890, c. 1001, § 2, 26 Stat. 492, Rock Creek Park Commission.

³⁶ Act March 1, 1855, c. 133, § 9, 10 Stat. 619, 623, ministers and their subordinates.

³⁷ Act March 3, 1891, c. 539, § 2, 26 Stat. 854, 855, attorney and interpreter for the Court of Private Land Claims.

³⁸ Act March 29, 1867, c. 14, § 1, 15 Stat. 9, commissioners to ascertain the amount raised in Indiana in enrolling the militia; Act March 1, 1907, c. 2285, 34 Stat. 1015, 1036, Act May 30, 1910, c. 260, § 4, 36 Stat. 448, 450, Act June 1, 1910, c. 264, § 7, 36 Stat. 455, 457, Act Aug. 3, 1914, c. 224, § 3, 38 Stat. 681, 682, various commissions for the appraisal of unallotted Indian lands.

³⁹ Act July 1, 1862, c. 119, § 2, 12 Stat. 432, 433 (Comp. St. § 5843), assessors and collectors of internal revenue; and semble, Act of July 2, 1836, c. 270, § 36, 5 Stat. 80, 88, postmasters.

⁴⁰ Act March 26, 1804, c. 38, § 4, 2 Stat. 283, 284, legislative council of Louisiana; Act March 3, 1891, c. 564, § 2, 26 Stat. 1104 (Comp. St. § 3503), territorial mine inspectors; Act July 9, 1921, c. 42, §§ 303, 313, 42 Stat. 108, 116, 119 (Comp. St. §§ 3707, 3727), governor, attorney, and marshal of Hawaii.

⁴¹ Act May 3, 1802, c. 53, § 5, 2 Stat. 195, 196, mayor of the District of Columbia; Act April 16, 1862, c. 54, § 3, 12 Stat. 376, commissioners for claims arising from the abolition of slavery; Act Feb. 21, 1871, c. 62, § 37, 16 Stat. 419, 426, board of public works; Act June 7, 1878, c. 162, § 5, 20 Stat. 100, 101, notaries public; Act June 11, 1878, c. 180, § 2, 20 Stat. 102, 103, commissioners of the District.

⁴² Act March 3, 1819, c. 101, § 2, 3 Stat. 532, 533, agents on the coast of Africa to receive negroes from vessels seized in the slave trade.

⁴³ Professional qualifications:

(a) Learning in the law: Act Sept. 24, 1789, c. 20, § 35, 1 Stat. 73, 92 (Comp. St. § 1294), Attorney General and district attorneys; Act March 26, 1804, c. 38, § 8, 2 Stat. 283, 286, attorney for Louisiana Territory; Act April 3, 1818, c. 29, § 4, 3 Stat. 413 (Comp. St. § 1294), attorney for Mississippi; Act March 3, 1819, c. 70, § 4, 3 Stat. 502, 503 (Comp. St. § 1294), attorney for Illinois; Act April 21, 1820, c. 47, § 6, 3 Stat. 564, 565 (Comp. St. § 1294), attorney for Alabama; Act March 16, 1822, c. 12, § 4, 3 Stat. 653 (Comp. St. § 1294), attorney for Missouri; Act March 30, 1822, c. 13, § 7, 3 Stat. 654, 656, attorney for Florida Territory; Act March 3, 1823, c. 28, § 9, 3 Stat. 750, 752, attorney for Florida Territory; Act May 26, 1824, c. 163, § 3, 4 Stat. 45, 46, attorney for Florida Territory; Act May 29, 1830, c. 153, § 1, 4 Stat. 414, solicitor of the Treasury; Act June 15, 1836, c. 100, § 6, 5 Stat. 50, 51 (Comp. St. § 1294), attorney for Arkansas; Act July 1, 1836, c. 234, § 4, 5 Stat. 61, 62 (Comp. St. § 1294), attorney for Michigan; Act March 3, 1845, c. 75, § 7, 5 Stat. 788 (Comp. St. § 1294), attorney for Florida; Act March 3, 1845, c. 76, § 4, 5 Stat. 789 (Comp. St. § 1294), attorney for Iowa; Act Dec. 29, 1845, c. 1, § 3, 9 Stat. 1 (Comp. St. § 1294), attorney for Texas; Act Aug. 6, 1846, c. 89, § 5, 9 Stat. 56, 57 (Comp. St. § 1294), attorney for Wisconsin; Act Feb. 23, 1847, c. 20, § 5, 9 Stat. 131 (Comp. St. § 1294), attorney for Florida; Act Sept. 28, 1850, c. 86, § 8, 9 Stat. 521, 522, attorney for California; Act March 3, 1851, c. 41, § 4, 9 Stat. 631, agent for California Land Commission; Act Aug. 31, 1852, c. 108, § 12, 10 Stat. 76, 99, law agent for California; Act July 27, 1854, c. 110, § 1, 10 Stat. 313, commissioner to adjust land claims; Act March 4, 1855, c. 174, § 1, 10 Stat. 642, commissioners to revise District of Columbia laws; Act March 3, 1859, c. 80, 11 Stat. 410, 420, Assistant Attorney General; Act March 2, 1861, c. 88, § 2, 12 Stat. 246, examiners in chief in Patent Office; Act May 20, 1862, c. 79, § 1, 12 Stat. 403, commissioners to revise District of Columbia, laws; Act March 3, 1863, c. 91, § 17, 12 Stat. 762, 765, commissioners to revise District of Columbia laws; Act March 3, 1863, c. 101, § 2, 12 Stat. 795, solicitor to Peruvian Commissioners; Act June 27, 1866, c. 140, § 1, 14 Stat. 74, commissioners to revise United States laws; Joint Res. May 27, 1870, No. 66, § 1, 16 Stat. 378 (Comp. St. § 521), examiner of claims for the Department of State; Act June 22, 1870, c. 150, §§ 2, 3, 16 Stat. 162, Solicitor General and Assistant Attorney Generals; Act July 8, 1870, c. 230, §

10, 16 Stat. 198, 200 (Comp. St. § 744), examiners in chief in Patent Office; Act March 2, 1877, c. 82, § 1, 19 Stat. 268, commissioner for a new edition of the Revised Statutes; Act March 6, 1890, c. 27, § 1, 26 Stat. 17, delegates to the International Conference at Madrid in patent and trade-mark laws; Act March 3, 1891, c. 539, § 2, 26 Stat. 854, 855, attorney of the Court of Private Land Claims; Act March 2, 1901, c. 800, § 1, 31 Stat. 877, Spanish claims commissioners; Act June 13, 1902, c. 1679, § 4, 32 Stat. 331, 373 (Comp. St. § 9984), commission on Canadian boundary waters to include one lawyer experienced in international and riparian law.

(b) Versed in Spanish and English languages: Act March 3, 1849, c. 107, § 2, 9 Stat. 393, secretary to Mexican Treaty Commissioners; Act March 3, 1851, c. 41, § 4, 9 Stat. 631, agent for California Land Commission; Act Aug. 31, 1852, c. 108, § 12, 10 Stat. 76, 99, law agent in California; Act May 16, 1860, c. 48, § 2, 12 Stat. 15, secretary of Paraguay Commission; Act Feb. 20, 1861, c. 45, § 2, 12 Stat. 145, secretary of New Granada Commission; Act March 3, 1863, c. 101, §§ 2, 3, 12 Stat. 795, solicitor and secretary of Peruvian Commissioners; Joint Res. Jan. 12, 1871, No. 7, § 1, 16 Stat. 591, secretary of San Domingo Commissioners; Act March 3, 1891, c. 539, § 2, 26 Stat. 854, 855, interpreter to the Court of Private Land Claims.

(c) Engineering: Act Feb. 21, 1871, c. 62, § 37, 10 Stat. 419, 426, District of Columbia Board of Public Works: Act April 4, 1871, c. 9, § 1, 17 Stat. 3, commission to examine Sutro Tunnel; Act June 22, 1874, c. 411, § 1, 18 Stat. 199, commission to examine alluvial basin of Mississippi river; Act June 28, 1879, c. 43, § 2, 21 Stat. 37 (Comp. St. § 9994), Mississippi River Commission; Act June 4, 1897, c. 2, 90 Stat. 11, 59, Nicaragua Canal Commission; Act June 13, 1902, c. 1079, § 4, 32 Stat. 331, 373 (Comp. St. § 9984), commission on Canadian boundary waters; Act June 28, 1902, c. 1302, § 7, 32 Stat. 481, 483, Isthmian Canal Commission; Act Aug. 24, 1912, c. 387, § 18, 37 Stat. 512, 517, Alaskan Railroad Commission; Act Aug. 8, 1917, c. 49, § 18, 40 Stat. 250, 269 (Comp. St. § 10003 1/4 a), Inland Waterways Commission; Act May 13, 1924, c. 153, 43 Stat. 118, Rio Grande Commission.

(d) Miscellaneous: Joint Res. July 5, 1866, No. 66, § 1, 14 Stat. 362, commissioners to Paris Universal Exhibition to be professional and scientific men; Act June 10, 1896, c. 398, 29 Stat. 321, 342, commissioners to locate Indian boundaries to be surveyors; Act Aug. 24, 1912, c. 387, § 18, 37 Stat. 512, 517, Alaskan Railroad Commission to include one geologist in charge of Alaskan survey.

⁴⁴ Act Aug. 26, 1852, c. 91, § 2, 10 Stat. 30, superintendent of public printing to be a practical printer; Act Aug. 31, 1852, c. 112, § 8, 10 Stat. 112, 119, Light House Board to include civilian of high scientific attainments; Act July 27, 1866, c. 284, § 1, 14 Stat. 302, appraiser for New York to have had experience as an appraiser or to be practically acquainted with the quality and value of some one or more of the chief articles of importation subject to appraisement; Joint Res. Feb. 9, 1871, No. 22, § 1, 16 Stat. 593, 594 (Comp. St. § 901), commissioner for fish and fisheries to be a person of proved scientific and practical acquaintance with the fishes of the coast; Act Feb. 28, 1871, c. 100, §§ 23, 63, 16 Stat. 440, 448, 458, supervising inspectors of steam vessels to be selected for their knowledge, skill, and practical experience in the uses of steam for navigation and to be competent judges of the character and qualities of steam vessels and of all parts of the machinery employed in steaming, inspectorgeneral to be selected with reference to his fitness and ability to systematize and carry into effect all the provisions of law relating to the steamboat inspection service; Act June 23, 1874, c. 480, § 2, 18 Stat. 277, 278, inspector of gas in the District of Columbia to be a chemist, assistant inspector to be a gas-fitter

by trade; Joint Res. Dec. 15, 1877, No. 1, § 2, 20 Stat. 245, commissioners to the International Industrial Exposition in Paris to include three practical artisan experts, four practical agriculturists, and nine scientific experts; Act June 18, 1878, c. 265, § 6, 20 Stat. 163, 164, superintendent of Life Saving Service to be familiar with the various means employed in the Life Saving Service for the saving of life and property from shipwrecked vessels; Act June 29, 1888, c. 503, § 8, 25 Stat. 217, 238, superintendent of Indian schools to be a person of knowledge and experience in the management, training and practical education of children; Act July 9, 1888, c. 593, § 1, 25 Stat. 243, delegates to the International Marine Conference to include two masters of merchant marine (one sailing and one steam), and two civilians familiar with shipping and admiralty practice; Act March 3, 1891, c. 564, § 2, 26 Stat. 1104 (Comp. St. § 3503), mine inspectors in the territories to be practical miners; Act July 13, 1892, c. 164, 27 Stat. 120, 139, Indian commissioners to be familiar with Indian affairs; Act Jan. 12, 1895, c. 23, § 17, 28 Stat. 601, 603 (Comp. St. § 6971), public printer to be a practical printer; Act March 3, 1899, c. 419, § 2, 30 Stat. 1014, assistant director of the census to be an experienced practical statistician; Act May 16, 1910, c. 240, § 1, 36 Stat. 369, Director of Bureau of Mines to be equipped by technical education and experience; Act Dec. 23, 1913, c. 6, § 10, 38 Stat. 251, 260 (Comp. St. § 9793), Federal Reserve Board to include two members experienced in banking or finance; Act March 3, 1919, c. 97, § 3, 40 Stat. 1291, 1292 (Comp. St. § 915) assistant director of the Census to be an experienced practical statistician; Act June 2, 1924, c. 234, § 900b, 43 Stat. 253, 336 (Comp. St. § 6371 5/6 b), Board of Tax Appeals to be selected solely on grounds of fitness to perform duties of the office.

⁴⁵ Act March 3, 1853, c. 97, § 3, 10 Stat. 189, 211, examination required of clerks in the Departments of Treasury, War, Navy, Interior, and Post Office; Act June 20, 1864, c. 136, § 2, 13 Stat. 137, 139 (Comp. St. § 3158), examination required of consular clerks; Act Jan. 16, 1883, c. 27, § 2, 22 Stat. 403 (Comp. St. § 3272), examinations for civil service employees; Act Jan. 4, 1889, c. 19, § 1, 25 Stat. 639 (Comp. St. § 9132), medical officers of Marine Hospital Service; Act May 22, 1917, c. 20, § 16, 40 Stat. 84, 88 (Comp. St. § 8562b), officers of the Coast and Geodetic Survey; Joint Res. Oct. 27, 1918, c. 196, 40 Stat. 1017, examinations for Public Health Service Reserve; Act May 24, 1924, c. 182, § 5, 43 Stat. 140, 141 (Comp. St. § 3197 1/4 d), examination for appointments as Foreign Service officers in Diplomatic Corps.

⁴⁶ Act June 20, 1864, c. 136, § 2, 13 Stat. 137, 139 (Comp. St. § 3154), consular clerks; Act April 30, 1900, c. 339, § 66, 31 Stat. 141, 153 (Comp. St. § 3707), governor of Hawaii; Act July 9, 1921, c. 42, § 303, 42 Stat. 108, 116 (Comp. St. § 3707), governor of Hawaii.

⁴⁷ Joint Res. Feb. 23, 1900, No. 9, 31 Stat. 711, one commissioner to represent the United States at the unveiling of the statue of Lafayette to be a woman; Act June 5, 1920, c. 248, § 2, 41 Stat. 987 (Comp. St. § 967 1/5 a), Director of Women's Bureau to be a woman.

⁴⁸ Act July 1, 1902, c. 1362, § 59, 32 Stat. 641, 654, commission to sell coal and asphalt deposits in Indian lands to include two Indians.

⁴⁹ Act March 26, 1804, c. 38, § 4, 2 Stat. 283, 284, legislative council of Louisiana to be selected from those holding real estate.

⁵⁰ Act Jan. 16, 1883, c. 27, § 8, 22 Stat. 403, 406 (Comp. St. § 3280), civil service appointees.

⁵¹ Act March 22, 1882, c. 47, § 9, 22 Stat. 30, 32, board of elections in Utah Territory; Act Jan. 16, 1883, c. 27, § 1, 22 Stat. 403 (Comp. St. § 3271), Civil Service Commission; Act Feb. 4, 1887, c. 104, § 11, 24 Stat. 379, 383, amended by Act June 29, 1906, c. 3591, § 8, 34 Stat. 584, 595, Act Aug. 9, 1917, c. 50, § 1, 40 Stat. 270, and Act Feb. 28, 1920, c. 91, § 440, 41 Stat. 456, 497 (Comp. St. § 8596), Interstate Commerce Commission; Act June 10, 1890, c. 407, § 12, 26 Stat. 131, 136 (Comp. St. § 5593), Board of General Appraisers; Act March 2, 1889, c. 412, § 14, 25 Stat. 980, 1005, Act Aug. 19, 1890, c. 807, 26 Stat. 336, 354, Act July 13, 1892, c. 164, 27 Stat. 120, 138, 139, Act June 10, 1896, c. 398, 29 Stat. 321, 342, various commissions to negotiate Indian treaties; Act Sept. 26, 1914, c. 311, § 1, 38 Stat. 717 (Comp. St. § 8836a), Federal Trade Commission; Act July 17, 1916, c. 245, § 3, 39 Stat. 360 (Comp. St. § 9835b), Federal Farm Loan Board; Act Sept. 7, 1916, c. 451, § 3, 39 Stat. 728, 729, amended by Act June 5, 1920, c. 250, § 3, subd. a, 41 Stat. 988, 989 (Comp. St. § 8146b), United States Shipping Board; Act Sept. 7, 1916, c. 458, § 28, 39 Stat. 742, 748 (Comp. St. § 8932nn), United States Employees' Compensation Commission; Act Sept. 8, 1916, c. 463, § 700, 39 Stat. 756, 795 (Comp. St. § 5326a), United States Tariff Commission; Act Sept. 21, 1922, c. 356, § 518, 42 Stat. 858, 972 (Comp. St. § 5841f-65), Board of General Appraisers; Act Feb. 28, 1923, c. 146, § 2, 42 Stat. 1325, 1326 (Comp. St. § 7706m), World War Foreign Debt Commission.

⁵² Act March 3, 1901, c. 864, § 2, 31 Stat. 1440, Louisiana Purchase Exposition Commission; Act March 22, 1902, c. 272, 32 Stat. 76, 78, Act Feb. 9, 1903, c. 530, 32 Stat. 807, 809, Act March 12, 1904, c. 543, 33 Stat. 67, 69, Act March 3, 1905, c. 1407, 33 Stat. 915, 917, Act June 16, 1906, c. 3337, 34 Stat. 286, 288, Act Feb. 22, 1907, c. 1184, 34 Stat. 916, 918, Act May 21, 1908, c. 183, 35 Stat. 171, 172, Act March 2, 1909, c. 235, 35 Stat. 672, 674, Act May 6, 1910 c. 199, 36 Stat. 337, 339, Act March 3, 1911, c. 208, 36 Stat. 1027, 1029, Act April 30, 1912, c. 97, 37 Stat. 94, 96, Act Feb. 28, 1913, c. 86, 37 Stat. 688, 689, Act June 30, 1914, c. 132, 38 Stat. 442, 444, Act March 4, 1915, c. 145, 38 Stat. 1116, 1117, Act July 1, 1916, c. 208, 39 Stat. 252, 253, Act March 3, 1917, c. 161, 39 Stat. 1047, 1049, Act April 15, 1918, c. 52, 40 Stat. 519, 520, Act March 4, 1919, c. 123, 40 Stat. 1325, 1327, Act June 4, 1920, c. 223, 41 Stat. 739, 741, Act March 2, 1921, c. 113, 41 Stat. 1205, 1207, Act June 1, 1922, c. 204, 42 Stat. 599, 601, Act Jan. 3, 1923, c. 21, 42 Stat. 1068, 1070, student interpreters for China, Japan, and Turkey.

⁵³ Joint Res. Dec. 15, 1877, No. 1, § 2, 20 Stat. 245, commissioners to the International Industrial Exposition in Paris; Act June 18, 1898, c. 466, § 1, 30 Stat. 476, Industrial Commission; Act Aug. 23, 1912, c. 351, § 1, 37 Stat. 415 (Comp. St. § 8913), Commission on Industrial Relations; Act Dec. 23, 1913, c. 6, § 10, 38 Stat. 251, 260, amended by Act June 3, 1922, c. 205, 42 Stat. 620 (Comp. St. § 9793), Federal Reserve Board; Act Feb. 23, 1917, c. 114, § 6, 39 Stat. 929, 932 (Comp. St. § 9390 1/4 cc), Federal Board for Vocational Education; Act Feb. 28, 1920, c. 91, § 304, 41 Stat. 456, 470 (Comp. St. § 10071 1/4 fff), Railroad Labor Board.

⁵⁴ Act Aug. 6, 1861, c. 62, § 3, 12 Stat. 320, board of police commissioners for the District of Columbia; Act Feb. 16, 1863, c. 37, § 3, 12 Stat. 652, 653, commissioners to settle Sioux Indians' claims; Act March 3, 1863, c. 106, § 1, 12 Stat. 799, levy court of the District of Columbia; Act March 3, 1871, c. 105, § 2, 16 Stat. 470, 471, commissioners to the Philadelphia Exposition; Joint Res. Dec. 15, 1877, No. 1, § 2, 20 Stat. 245, commissioners to the International Industrial Exposition in Paris; Act March 3, 1879, c. 202, § 1, 20 Stat. 484, National Board of Health; Act Aug. 5, 1882, c. 389, § 4, 22 Stat. 219, 255 (Comp. St. § 249), civil employees of certain departments; Act Jan. 16, 1883, c. 27, § 2, 22 Stat. 403 (Comp. St. § 3272), civil service appointees; Act Feb. 10, 1883, § 3, 22 Stat. 413, commissioners to World's Industrial and Cotton Centennial Exposition; Act April 25, 1890, c. 156, § 3, 26 Stat. 62, world's Columbian Exposition Commission; Act Aug. 19, 1890, c. 807, 26 Stat. 336, 354, 355, commissions to negotiate Indian treaties and investigate reservations; Act March 3, 1893, c. 209, § 1, 27 Stat. 612, 633, commission to select allotted Indian lands; Act June 10, 1896, c. 398, 29 Stat. 321, 342, commission to adjust Indian boundaries; Act Sept. 7, 1916, c. 451, § 3, 39 Stat. 728, 729, amended by Act June 5, 1920, c. 250, § 3(a), 41 Stat. 988, 989 (Comp. St. § 8146b), United States Shipping Board; Act March 4, 1921, c. 171, § 3, 41 Stat. 1441, 1442, commission to appraise buildings of Washington Market Company; Act June 3, 1922, c. 205, 42 Stat. 620 (Comp. St. § 9793), Federal Reserve Board; Joint Res. March 3, 1925, c. 482, § 1, 43 Stat. 1253, National Advisory Commission to the Sesquicentennial Exhibition Association.

⁵⁵ (a) Selection to be from civil employees: Joint Res. Feb. 9, 1871, No. 22, § 1, 16 Stat. 593, 594, commissioner of fish and fisheries; Act May 27, 1908, c. 200, § 11, 35 Stat. 317, 388, board of managers of Alaska-Yukon-Pacific Exposition; Act June 23, 1913, c. 3, 38 Stat. 4, 76, Panama-Pacific Exposition Government Exhibit Board.

(b) Selection to be from particular civil employees: Act April 5, 1906, c. 1366, § 4, 34 Stat. 99, 100 (Comp. St. § 31), consulate inspectors from consulate force.

(c) Selection to be from army officers: Act July 20, 1867, c. 32, § 1, 15 Stat. 17, commission to treat with hostile Indians; Act March 3, 1873, c. 316, § 1, 17 Stat. 622, commission to report on irrigation in the San Joaquin valley; Act March 1, 1893, c. 183, § 1, 27 Stat. 507 (Comp. St. § 10004), California De bris Commission; Act June 4, 1897, c. 2, 30 Stat. 11, 51, board to examine Aransas Pass; Joint Res. Aug. 9, 1912, No. 40, 37 Stat. 641, commission to investigate Mexican insurrection claims; Act March 4, 1923, c. 283, § 1, 42 Stat. 1509 (Comp. St. § 9378g), secretary of American Battle Monuments Commission.

(d) Selection to be from army and navy: Act April 14, 1818, c. 58, § 1, 3 Stat. 425, coast surveyors.

(e) Boards to include civilian representative of the Government: Act March 1, 1907, c. 2285, 34 Stat. 1015, 1036, Act May 30, 1910, c. 260, § 4, 36 Stat. 448, 450, Act June 1, 1910, c. 264, § 7, 36 Stat. 455, 457, Act Aug. 3, 1914, c. 224, § 3, 38 Stat. 681, 682, various commissions to appraise unallotted Indian lands to include one representative of the Indian Bureau; Joint Res. March 4, 1911, No. 16, 36 Stat. 1458, commission to investigate cost of handling mail to include one Supreme Court Justice.

(f) Commissions to include army officers: Act April 4, 1871, c. 9, 17 Stat. 3, commission to examine Sutro Tunnel; Act June 13, 1902, c. 1079, § 4, 32 Stat. 331, 373 (Comp. St. § 9984), commission on Canadian boundary waters; Act Aug. 8, 1917, c. 49, § 18, 40 Stat. 250, 269 (Comp. St. § 10003 1/4 a), Inland Waterways Commission.

(g) Commissions to include army and navy officers: Act Aug. 31, 1852, c. 112, § 8, 10 Stat. 112, 119, Light House Board; Act June 4, 1897, c. 2, 30 Stat. 11, 59, Nicaragua Canal Commission; Act June 28, 1902, c. 1302, § 7, 32 Stat. 481, 483, Isthmian Canal Commission; Joint Res. June 28, 1906, No. 37, 34 Stat. 835, commission to appraise Chesapeake & Delaware Canal; Act Aug. 24, 1912, c. 387, § 18, 37 Stat. 512, 517, Alaskan Railroad Commission.

(h) Commissions to include Army and Coast Survey officers; Act June 23, 1874, c. 457, § 3, 18 Stat. 237, 244, board of harbor engineers; Act June 28, 1879, c. 43, § 2, 21 Stat. 37 (Comp. St. § 9994), Mississippi River Commission.

(i) Board to include navy officers and offical of Life Saving Service: Act July 9, 1888, c. 593, § 1, 25 Stat. 243, delegates to International Marine Conference.

⁵⁶ Act Feb. 25, 1863, c. 58, § 1, 12 Stat. 665, Comptroller of the Currency, on nomination of the Secretary of the Treasury, amended by Act June 3, 1864, c. 106, § 1, 13 Stat. 99; Act April 23, 1880, c. 60, § 4, 21 Stat. 77, 78, United States International Commission, on nominations of state governors; Act Feb. 10, 1883, c. 42, §§ 2, 3, 22 Stat. 413, managers of World's Industrial and Cotton Centennial Exposition, on recommendation of executive committee of National Cotton Planters' Association and majority of subscribers to enterprise in the city where it shall be located, commissioners to the Exposition to be appointed on nomination of state governors; Act July 1, 1902, c. 1362, § 59, 32 Stat. 641, 654, commission to sell coal and asphalt deposits in Indian lands, one appointment to be made on recommendation of principal chief of Choctaw Nation, one on recommendation of Governor of Chickasaw Nation; Act Feb. 28, 1920, c. 91, § 304, 41 Stat. 456, 470 (Comp. St. § 10071 1/4 fff), Railroad Labor Board, three to be appointed from six nominees made by employees, three to be appointed from six nominees made by carriers.

⁵⁷ On July 25, 1868, the Senate having confirmed the nomination of J. Marr as collector of internal revenue in Montana Territory, voted to reconsider the nomination, and ordered the nomination to be returned to the President 'with the notification that the nominee is ineligible on account of nonresidence in the district for which he is nominated.' 16 Ex. Journ. 372. President Johnson thereafter did not press Marr's nomination, but appointed A. J. Simmons to the office. 16 Ex. Journ. 429.

⁵⁸ The Tenure of Office Act as originally introduced excepted from its operation the Secretaries of State, Treasury, War, Navy, and Interior and the Postmaster General. Howe's attempts to strike out this exception, opposed by Senators Edmunds and Sherman, who were the principal sponsors of the act, failed twice in the Senate. A similar attempt in the House succeeded after first being rejected. The Senate again refused to concur in the House amendment. The amendment was, however, insisted upon by the House conferees. Finally the Senate by a margin of three votes agreed to accept the conference report. Cong. Globe, 39th Cong., 2d Sess., 1518.

⁵⁹ The occasion of the passage of the Tenure of Office Act was the threatened attempt of President Johnson to interfere with the reconstruction policies of Congress through his control over patronage. An attempt by Schenck to secure its recommitment to the joint select committee on retrenchment was placed upon the ground that 'this whole subject was expressly referred to that committee' which had before it 'the bill introduced by the select committee on the civil service, at the head of which is the gentleman from Rhode Island (Mr. Jenckes).' Cong. Globe, 39th Cong., 2d Sess., 23. Senator Edmunds, in resisting an attempt to expand the Tenure of Office Act to require the concurrence of the Senate in the appointment of all civil officers receiving more than $1,000 per annum, referred to the Jenckes bill as 'another branch of the subject which is under consideration elsewhere.' Id., 489. The committee in introducing the Tenure of Office Act, speaking through Senator Edmunds, 'recommended the adoption of this rule respecting the tenure of officers as a permanent and systematic and as they believe an appropriate regulation of the government for all administrations and for all time.' Id., 382.

⁶⁰ The attempt on the part of the House to repeal the act in 1869 brought forth the opposition of those members of the Senate who were most active in the general movement for civil service reform. Jenckes had voted against the repeal in the House. Carl Schurz, who on December 20, 1869, introduced a bill for the competitive principle in the civil service, opposed the repeal, and urged that it be recast at the next session more effectually to effect the desired civil service reform. Cong. Globe, 41st Cong., 1st Sess., 155, 156. Trumbull, speaking for the Committee on Judiciary, said that 'they were unwilling after Congress had with such unanimity adopted this law within the last two years, and adopted it upon the principle that some law of this kind was proper to regulate the civil service, to recommend its absolute repeal * * * they thought it better to recommend the suspension of the act until the next session of Congress, and then Congress can either repeal it or adopt some civil-service bill which in its judgment shall be thought to be for the best and permanent interests of the country.' Id., 88. The National Quarterly Review recognizing the essential unanimity of purpose between the Tenure of Office Act and other measures for civil service reform, said in 1867: 'The recent legislation on this subject by Congress was the first step in the right direction; Mr. Jenckes' bill is the second; but the one without the other is incomplete and unsafe.' House Rep. No. 47, 40th Cong., 2d Sess., Ser. No. 1352, p. 93.

⁶¹ The attempt to repeal the act was resisted in the House by Holman on the ground that since 'the general impression exists in the country that executive patronage should be in some form reduced rather than increased * * * this fragment of the original law should remain in force.' Cong. Globe, 42nd Cong., 2d Sess., 3411.

⁶² Edmunds, one of the few Senators still acquainted with the circumstances of its passage, thus protested against the passage of the repealing act: 'It is, as it looks to me, as if we were to turn our backs now and here upon the principle of civil service reform * * * the passage of this bill would be the greatest practical step backward on the theory of the reformation of the civil service of the United States.' 18 Cong. Rec. 137.

⁶³ The Jenckes bill was introduced in the House on December 20, 1865. Summer had already on April 30, 1864, presented in the Senate a bill for a classified civil service. On June 13, 1866, the House committee on civil service reform reported out the Jenckes bill. It contained among other provisions a section requiring the proposed commission to prescribe, subject to the approval of the President, the misconduct or inefficiency which would be sufficient ground for removal and also the manner by which such charges were to be proved. This provision was retained in the succeeding bill sponsored by Jenckes in the House. The provision was expressly omitted from the Pendleton bill, which later became the Civil Service Act of 1883, in order not to endanger the passage of a measure for a classified civil service by impinging upon the controversial ground of removal. Senators Sherman and Brown attempted to secure legislation restricting removal by amendments to the Pendleton bill. 14 Cong. Rec. 210, 277, 364. In the first session of the Thirty-Ninth Congress no action was taken upon the Janckes bill; but the bill was reintroduced in the following session on January 29, 1867. An attempt on the part of Jenckes, after the initial passage of the Tenure of Office Act, to secure the passage of his bill resulted in the tabling of his scheme on February 6, 1867, by a vote of 72 to 66.

⁶⁴ This measure appears to have been first suggested on May 4, 1826, in a bill which accompanied the report presented by Benton from the select committee of the Senate appointed to investigate executive patronage when abuse of the power by President John Quincy Adams was apprehended. Sen. Doc. No. 88, 19th Cong., 1st Sess., Ser. No. 128. On March 23, 1830, Barton's resolution asserting the right to such information was reported. Sen. Doc. 103, 21st Cong., 1st Sess., Ser. No. 193. On April 28, 1830, the proposal was renewed in a resolution introduced by Holmes. 6 Cong. Deb. 385. In 1835 it was embodied in the Executive Patronage Bill which passed the Senate on two successive occasions, but failed of action in the House.

⁶⁵ This measure appears to have been first suggested by President Monroe in his message of December 2, 1823. 41 Ann. Cong. 20. Its proposal for enactment into law was first suggested on May 4, 1826, by the report of the select committee appointed by the Senate on possible abuses of executive patronage. In 1832 the proposal was again brought forward by Vance of Ohio in the nature of an amendment to the postal legislation, 8 Cong. Deb. 1913. On March 7, 1834, Clay's resolutions, that advocated the concurrence of the Senate in removals, also included a proposal for the appointment of postmasters by the President with the concurrence of the Senate. On January 28, 1835, a report by the Senate committee on post offices called attention to the extended removals of postmasters. Sen. Doc. No. 86, 23d Cong., 2d Sess., Ser. No. 268, p. 88. This report led to the introduction in 1835 and passage by the Senate of a bill reorganizing the Post Office, which contained the proposal under consideration. The House having failed to act upon the 1835 bill, it was reintroduced at the next session and passed by both Houses. Act July 2, 1836, c. 270, 5 Stat. 80. See, also, Sen. Doc. No. 362, 24th Cong., 1st Sess., Ser. No. 283.

⁶⁶ This measure appears to have been first proposed in Congress by Clay on March 7, 1834. 10 Cong. Deb. 834. In 1835, it was, in substance, embodied in an amendment proposed by him to the Executive Patronage Bill, which read: 'That in all instances of appointment to office by the President, by and with the advice and consent of the Senate, the power of removal shall be exercised only in concurrence with the Senate; and, when the Senate is not in session, the President may suspend any such officer, communicating his reasons for the suspension during the first month of its succeeding session; and if the Senate concur with him, the officer shall be removed; but if it do not concur with him, the officer shall be restored to office.' 11 Cong. Deb. 523. In 1836 when a Senate committee of commerce investigated the removal of a gauger for political reasons, Levi Woodbury, then Secretary of the Treasury, suggested the assumption of Congressional control over removals, saying: 'The department deems it proper to add that * * * a great relief would be experienced if * * * the power of original appointment and removal in all these cases should be vested in Congress, if the exercise of it there is deemed more convenient and safe, and, at the same time, constitutional.' Sen. Doc. No. 430, 24th Cong., 1st Sess., Ser. No. 284, p. 30.

⁶⁷ On July 1, 1841, Benton again reintroduced a proposal of this nature. Cong. Globe, 27th Cong., 1st Sess., 63. On May 23, 1842, a select committee on retrenchment reported to the House on the necessity of diminishing and regulating executive patronage, saying 'they entertain no doubt of the power of Congress to prescribe, and of the propriety of prescribing, that, in all cases of removal by the President, he shall assign his reasons to the Senate at its next session.' House Rep. No. 741, 27th Cong., 2d Sess., Ser. No. 410, p. 5. See, also, Report of July 27, 1842, House Rep. No. 945, 27th Cong., 2d Sess., Ser. No. 410; 5 Ex. Journ. 401. On Jan. 3, 1844, after an attempt to impeach President Tyler for misusing the appointing power had failed, Thomasson in the House again sought to secure the adoption of such a measure. On December 24, 1849, after the Post Office Department under Taylor's administration had recorded 3,406 removals, Bradbury proposed a resolution requiring the President to give the number and reasons for removals made from the beginning of his term of office. Senator Mangum, in order to cut short debate on the resolution, contended that it was an unconstitutional invasion of executive powers and called for a test vote upon the resolution. The Senate divided 29 to 23 in upholding its right to demand reasons for removals. Cong. Globe, 31st Cong., 1st Sess., 160. On January 4, 1850, the Senate adopted a resolution calling for a report upon the number and reasons for removals of deputy postmasters. Id. 100.

⁶⁸ The character that this movement to restrict the power of removal had assumed in consequence of the continuance of the spoils system is illustrated by the remarks of Bell in the Senate in 1850: 'To restrain this power by law I would urge as one of the greatest reforms of the age, so far as this government is concerned. * * * Sir, I repeat that to restrain by law this unlimited, arbitrary, despotic power of the executive over the twenty or thirty thousand valuable public officers of the country-the tendency of which is to make them slaves of his will-is the greatest reform demanded by the true interest of the country, no matter who may at any time be the tenant of the White House.' Cong. Globe, 31st Cong., 1st Sess., App. 1043. Restrictions were twice advocated in the official utterances of President Tyler. 4 Messages and Papers of the Presidents, 50, 89. See, also, Report of June 15, 1844, by Sen. Com. on Retrenchment; Sen. Doc. 399, 28th Cong., 1st Sess., Ser. No. 437, p. 55; Resolution Dec. 17, 1844, by Grider in the House, Cong. Globe, 28th Cong., 2d Sess., 40.

⁶⁹ Act Feb. 25, 1863, c. 58, § 1, 12 Stat. 665.

⁷⁰ By Act March 3, 1853, c. 97, § 3, 10 Stat. 189, 211, clerks in the departments of the Treasury, War, Navy, Interior, and Post Office were to be classified and appointments to the various classes were to be made only after examination by a select board. This scheme was later abandoned after it became evident that the examinations prescribed were conducted arbitrarily and with no attempt to determine the fitness of candidates for positions. Fish, Civil Service and Patronage, 183. By Act Aug. 18, 1856, c. 127, § 7, 11 Stat. 52, 55, the appointment of 25 consular pupils was authorized and examinations were to be conducted to determine the fitness of applicants for appointment. This provision was, however, stricken from the diplomatic and consular appropriation bill in the next session of Congress. The principle was not returned to again until Act June 20, 1864, c. 136, § 2, 13 Stat. 137, 139.

⁷¹ Chief Justice Marshall said of the proceedings of 1789: 'In organizing the departments of the executive, the question in what manner the high officers who filled them should be removable, came on to be discussed.' 5 Marshall, Life of Washington, 196.

⁷² Of the ten Senators who had been members of the Constitutional Convention of 1787, four voted against the bill. A fifth, Bassett, changed sides during the debate. Maclay, Sketches of Debate, 110.

⁷³ The six who held that the Constitution vested a sole power of removal in the President were Baldwin, 1 Ann. Cong. 557-560; Benson, Id. 505-507; Boudinot, Id. 526-532; Clymer, Id. 489; Madison, Id. 546; Vining, Id. 585. Madison, at first, considered it subject to congressional control. 1 Ann. Cong. 374, 375. Seven held that the power of removal was a subject for congressional determination and that it was either expedient or inexpedient to grant it to the President alone. Hartley, 1 Ann. Cong. 585; Lawrence, Id. 583; Lee, Id. 523-526; Sedgwick, Id. 582, 583; Sherman, Id. 491, 492; Sylvester, Id. 560-563; Tucker, Id. 584, 585. Five held that the power of removal was constitutionally vested in the President and Senate. Gerry, 1 Ann. Cong. 502; Livermore, Id. 477-479; Page, Id. 519, 520; Stone, Id. 567; White, Id. 517. Two held that impeachment was the exclusive method of removal. Jackson, 1 Ann. Cong. 374, 529-532; Smith, of South Carolina, 1 Ann. Cong. 457, 507-510. Three made desultory remarks-Goodhue 1 Ann. Cong. 378, 533, 534; Huntington, 1 Ann. Cong. 459; and Scott, 1 Ann. Cong. 532, 533-which do not admit of definitive classification. Ames was only certain that the Senate should not participate in removals, and did not differentiate between a power vested in the President by the Constitution and a power granted him by the Legislature. 1 Ann. Cong. 473-477, 538-543. He inclined, however, towards Madison's construction. 1 Works of Fisher Ames, 56. During the earlier debate upon the resolutions for the creation of Executive Departments, Bland had contended that the Senate shared in the power of removal. 1 Ann. Cong. 373, 374. The conclusion that a majority of the members of the House did not hold the view that the Constitution vested the sole power of removal in the President was expressed by Senator Edmunds. 3 Impeachment of Andrew Johnson, 84. It had been expressed 20 years earlier by Lockwood, J., of the Supreme Court of Illinois, in a case involving a similar question and decided adversely to Madison's contention. Field v. People, 2 Scam. 79, 162-173.

⁷⁴ Madison's plea for support was addressed not only to those who conceived the power of removal to be vested in the President, but also to those who believed that Congress had power to grant the authority to the President and that under the circumstances it was expedient to confer such authority. After expressing his own views on the subject, he continued: 'If this is the true construction of this instrument, the clause in the bill is nothing more than explanatory of the meaning of the Constitution, and therefore not liable to any particular objection on that account. If the Constitution is silent, and it is a power the Legislature have a right to confer, it will appear to the world, if we strike out the clause, as if we doubted the propriety of vesting it in the President of the United States. I therefore think it best to retain it in the bill.' 1 Ann. Cong. 464.

⁷⁵ The initial vote of 34 to 20, defeating a motion to strike out the words 'to be removable by the President,' was indecisive, save as a determination that the Senate had no constitutional right to share in removals. Madison, June 22, 1789, 1 Ann. Cong. 578, 579. 'Indeed, the express grant of the power to the President rather implied a right in the Legislature to give or withhold it as their discretion.' 5 Marshall, Life of Washington, 200. Benson, therefore, proposed to remove this ambiguity by striking out the words 'to be removable by the President,' and inserting 'whenever the said principal officer shall be removed from office by the President of the United States,' thus implying the existence of the power in the President irrespective of legislative grant. The motions were successful and their adoption has been generally interpreted as a legislative declaration of Benson's purpose. Such interpretation, although oft repeated, is not warranted by the facts of record. The individual votes on these two motions are given. An examination of the votes of those whose opinions are also on record shows

that Benson's first motion succeeded only as a result of coalition between those who accepted Madison's views and those who considered removal subject to congressional control but deemed it advisable to vest the power in the President. The vote on Benson's second motion to strike out the words 'to be removable by the President' brought forth a different alignment. The minority now comprised those who, though they believed the grant of power to be expedient, did not desire to imply the existence of a power in the President beyond legislative control; whereas the majority exhibits a combination of diverse views-those who held to Madison's construction, those who initially had sought to strike out the clause on the ground that the Senate should share in removals, and those who deemed it unwise to make any legislative declaration of the Constitution. Thus none of the three votes in the House revealed its sense upon the question whether the Constitution vested an uncontrollable power of removal in the President. On the contrary the votes on Benson's amendments reveal that the success of this endeavor was due to the strategy of dividing the opposition and not to unanimity of constitutional conceptions.

⁷⁶ President's Jackson, 3 Messages and Papers of the Presidents, 133; Johnson, 6 Id. 492; Cleveland, 8 Id. 379; Wilson, 59 Cong. Rec. 8609.

⁷⁷ On February 2, 1835, the Senate adopted a resolution requesting the President to communicate to the Senate copies of the charges against Gideon Fitz, surveyor general, in that such information was necessary for its constitutional action upon the nomination of his successor. 4 Ex. Journ. 465. On February 10, 1835, President Jackson refused to comply with these alleged 'unconstitutional demands.' 4 Ex. Journ. 468. On January 25, 1886, the Senate adopted a resolution directing the Attorney General to transmit copies of documents on file in the Department of Justice relating to the management of the office of district attorney for the southern district of Alabama. J. D. Burnett had been nominated to the office in place of G. M. Duskin suspended. 25 Ex. Journ. 294. On February 1, 1886, a letter from the Attorney Generl was laid before the Senate refusing to accede with the request by direction of the President. On March 1, 1886, President Cleveland in a message to the Senate denied the constitutional right of the Senate to demand such information. 8 Messages and Papers of the Presidents, 375.

⁷⁸ During March, 1830, prior to the Fitz episode, three resolutions to request the President to communicate grounds for the removal of inferior officials failed of adoption in the Senate. 4 Ex. Journ. 75, 76, 79. However, during April, 1830, in the case of nominations sent to the Senate for confirmation, resolutions requesting the President to communicate information relative to the character and qualifications of the appointees were adopted and complied with by President Jackson. 4 Id. 86, 88, 92.

The instances of President Johnson's compliance with the second section of the Tenure of Office Act, requiring the communication of reasons for the suspension of inferior officials during the recess of the Senate, have been enumerated. See notes 23 and 24, supra. President Johnson also complied with a resolution adopted by the Senate on December 16, 1867, requestion him to furnish the petitions of Idaho citizens, filed with him, remonstrating against the removal of Governor Ballard. 16 Ex. Journ. 109, 121. Also, on April 5, 1867, his Attorney General complied with a Senate resolution calling for papers and other information relating to the charges against a judge of Idaho Territory, whose removal the President was seeking through the appointment of a successor. 15 Id. 630, 644. On February 18, 1867, his Postmaster General in compliance with a House resolution of December 6, 1866, transmitted the number and reasons for the removals of postmasters, appointed by the President, between July 28, 1866, and December 6, 1866. House Ex. Doc. No. 96, 39th Cong., 2d Sess., Ser. No. 1293. His Secretary of the Interior also complied with a House resolution requesting information as to removals and reasons therefor in the department. House Ex. Dec. No. 113, 39th Cong., 2d Sess., Ser. No. 1293.

Prior to the date on which President Cleveland upheld his right to refuse the Senate information as to the conduct of a suspended official, his Secretary of the Treasury twice complied with requests of the Senate for such information. 25 Ex. Journ. 312, 317. These requests were couched in substantially the same form as that which was refused in the Duskin Case. Subsequent to that date, compliances with similar resolutions are recorded in four further cases, two by the Secretary of the Treasury, one by the Postmaster General and one by the Attorney General. 25 Ex. Journ. 362, 368, 480, 559.

⁷⁹ On March 2, 1847, President Polk complied with a Senate resolution requesting reasons and papers relating to the failure to send in Captain H. Holmes' name for promotion. 7 Ex. Journ. 227. On September 2, 1850, President Fillmore complied with a Senate resolution requesting the President to communicate correspondence relating to 'the alleged resignation' of Lieut. E. C. Anderson. 8 Ex. Journ. 226. Fillmore, in compliance with a Senate resolution of August 14, 1850, laid before the Senate a report of the Postmaster General communicating the charges on file against the deputy postmaster at Milwaukee. Id. 220. Nominations having been made for the collectorships of New York and Chicago, and the former incumbents suspended, Edmunds on November 26, 1877, proposed a resolution directing the Secretary of the Treasury to transmit all papers bearing upon the expediency of removing the collectors. On January 15, 1879, the Secretary of the Treasury communicated to the Senate an official report, and on January 31, 1879, President Hayes forwarded his reasons for the suspensions. 21 Ex. Journ. 140, 455, 497.

Compliances with Senate resolutions directed to the heads of departments relative to the removal of presidential appointees are also on record. In response to a House resolution of February 13, 1843, requesting the charges against Roberts and Blythe, collectors, and the names of the persons who petitioned for their removal, the Secretary of the Treasury transmitted the material that he had in his control. House Doc. No. 158, 27th Cong., 3d. Sess., Ser. No. 422. On January 14, 1879, the Secretary of the Treasury complied with a Senate resolution requesting the charges on file against the Supervising Inspector General of Steamboats. 21 Ex. Journ. 454. On January 20, 1879, the Secretary of the Treasury complied with a Senate resolution calling for the papers showing why Lieutenant Devereux was discharged from the Revenue Marine Service. Id. 470. The Secretary of the Navy complied with a Senate resolution of February 25, 1880, asking why Edward Bellows was dropped from the roll of paymasters. Sen. Doc. No. 113, 46th Cong., 2d Sess., Ser. No. 1885.

Presidents Van Buren and Tyler also complied with resolutions requesting the number of removals. Sen. Doc. No. 399, 28th Cong., 1st Sess., Ser. No. 437, p. 351; House Doc. No. 48, 27th Cong., 1st Sess., Ser. No. 392.

Senate resolutions, occasioned by the nomination of the successor in place of a former incumbent, requesting information as to the conduct or ability of the successor, have been complied with by Presidents Monroe on February 1, 1822 (3 Ex. Journ. 273); Jackson on April 12, and 15, 1830 (4 Ex. Journ. 88, 92), and on April 24, 1834 (4 Ex. Journ. 390); by Tyler on June 29, 1842 (6 Ex. Journ. 97); by Polk on June 23, 1848 (7 Ex. Journ. 435); by Fillmore on September 16, 1850 (8 Ex. Journ. 232); By Buchanan on March 2, 1858 (10 Ex. Journ. 237); by Grant on December 21, 1869 (17 Ex. Journ. 326); and by heads of departments under Polk on June 23, 1848 (7 Ex. Journ. 435); under Fillmore on September 25, 1850, and February 17, 1853 (8 Ex. Journ. 250, 9 Ex. Journ. 33); under Lincoln on January 22, 1862, and on February 23, 1865 (12 Ex. Journ. 95, 14 Ex. Journ. 135). The practice appears to have been suggested by President Washington. The Senate having rejected a nomination, President Washington on August 7, 1789, in nominating a successor, said: 'Permit me to submit to your consideration whether, on occasions when the propriety of nominations appear questionable to you, it would not be expedient to communicate that circumstance to me, and thereby avail yourselves of the information which led me to make them, and which I would with pleasure lay before you.' 1 Ex. Journ. 16.

⁸⁰ The Executive Patronage Bill, containing such a requirement, passed the Senate on February 21, 1835, and on February 3, 1836. A test vote on the Senate's right in 1850 is also on record. See note 67, supra. Following the protest of President Cleveland, resolutions condemnatory of the Attorney General's refusal 'under whatever influence' to communicate the information requested were favorably reported to the Senate, debated at length and passed. Among the members of the committee, advocating the adoption of the resolutions, were Hoar and Evarts, the two most energetic opponents of the Tenure of Office Act. Sen. Rep. No. 135, 49th Cong., 1st Sess., Ser. No. 2358. The acts of 1864 and 1873, approved by Presidents Lincoln and Grant, embody such a requirement. See note 33, supra.

⁸¹ Attorneys General Legare, Clifford, and Crittenden seem to have been of the opinion that the President possessed an absolute power of removal. 4 Op. A. G. 1, 603; 5 Op. A. G. 288. Legare, however, having occasion to consider Story's contention that the power of removal might be restricted by legislation with respect to inferior officers, said that he was 'not prepared to dissent from any part of this sweeping proposition.' 4 Op. A. G. 165, 166. In 1818 Attorney General Wirt in holding that where an act of Congress gave the President power to appoint an officer, whose tenure of office was not defined, that officer was subject to removal by the President, said: 'Whenever Congress intend a more permanent tenure (during good behavior, for example), they take care to express that intention clearly and explicitly. * * *' 1 Op. A. G. 212, 213. Following the passage of the Tenure of Office Act the subject was considered by Attorney General Evarts, who disposed of the problem 'within the premises of the existing legislation.' 12 Op. A. G. 43, 449. In 1873 Attorney General Akerman refused to concede the President a power of removal in that under that Act he was limited to a power of suspension. 13 Op. A. G. 300. In 1877 Attorney General Devens concurred in the provisions of the Tenure of Office Act restoring a suspended officer to his office upon the failure of the Senate to act upon the confirmation of his successor. 15 Op. A. G. 375.

⁸² The Connecticut Charter of 1662, vested the appointment of practically all officers in the assembly and provided that such officers were to be removable by the Governor, Assistants and Company for any misdemeanor of default. The Rhode Island Charter of 1663 contained the same provisions. The Massachusetts Charter of 1691 provided for the appointment of officers by and with the advice and consent of the council. Under Governors Phipps and Stoughton the council asserted its rights over appointments and dismissals, and in 1741 Shirley was prevented from going back to the earlier arbitrary practice of Governor Belcher. Spencer, Constitutional Conflict in Massachusetts, 28. The Georgia Charter of 1732 provided that the common council should have power to nominate and appoint and 'at their will and pleasure to displace, remove and put out such treasurer or treasurers, secretary or secretaries, and all such other officers, ministers and servants.'

⁸³ As early as 1724 Mrs. Hannah Penn, in her instructions to Sir William Keith, governor of Pennsylvania, protested against his dismissal of the Secretary without seeking the advice of his council. The practice of seeking such advice continued in later years. Shepherd, Proprietary Government in Pennsyivania, 321, 370.

⁸⁴ In the royal colonies there was a recognized tendency to guard against arbitrariness in removals by making the governor responsible to the home government instead of the local representative assembly. In New Hampshire the first and second Andros Commissions intrusted the power to the governor alone, but the Bellomont Commission of 1697, the Dudley Commission of 1702, the Shute Commission of 1716, the Burnet Commission of 1728, the Belcher Commission of 1729, the Wentworth Commission of 1741, and the John Wentworth Commission of 1766 were accompanied with instructions requiring either that removals be made only upon good and sufficient cause or upon cause signified to the home government in the 'fullest and most distinct manner.' In Virginia similar instructions accompanied the issuance of commissions to Governor Howard in 1683 and to Governor Dunmore in 1771.

⁸⁵ Smith of South Carolina, June 17, 1789, 1 Ann. Cong. 471; Gerry, June 17, 1789, 1 Ann. Cong. 504. See note 9, supra.

⁸⁶ Hamilton's opinion is significant in view of the fact that it was he who on June 5, 1787, suggested the association of the Senate with the President in appointments, as a compromise measure for dealing with the appointment of judges. 1 Farrand, Records of the Federal Convention, 128. The proposition that such appointments should be made by and with the advice and consent of the Senate was first brought forward by Nathaniel Gorham of Massachusetts, 'in the mode prescribed by the Constitution of Massachusetts.' 2 Id. 41. Later this association of the President and the Senate was carried over generally to other appointments. The suggestion for the concurrence of the Senate in appointments of executive officials was advanced on May 29 by Pinckney in his 'draught of a foederal government' and by Hamilton in resolutions submitted by him on June 18, 1787. 1 Id. 292; 3 Id. 599.

⁸⁷ Rogers, Executive Power of Removal, 11, 39. On August 6, 1787, the Committee of Five reported the draft of the Constitution that in article 10, § 2, provided for a single executive who 'shall appoint officers in all cases not otherwise provided for by this Constitution.' 2 Farrand, Records of the Federal Convention, 185. On August 20 propositions were submitted to the Committee of Five of the creation of a Council of State consisting of the Chief Justice, the Secretaries of domestic affairs, commerce and finance, foreign affairs, war, marine and state. All the Secretaries were to be appointed by the President and hold office during his pleasure. 2 Id. 335-337. That proposition was rejected, because 'it was judged that the Presidt. By persuading his council-to concur in his wrong measures, would acquire their protection. * * *' 2 Id. 542. The criticism of Wilson, who had proposed the Council of State, and Mason of the Senate's participation in appointments was based upon this rejection. The lack of such a council was the 'fatal defect' from which 'has arisen the improper power of the Senate in the appointment of public officers.' 2 Id. 537. 639.

  [Argument of Counsel from pages 602-604 intentionally omitted]

Page 604

          Mr. William J. Donovan, of Washington, D.C. (Messrs. Henry H. Bond and Ralstone R. Irvine, both of Washington, D.C., of counsel), for plaintiff.

  [Argument of Counsel from pages 604-612 intentionally omitted]

Page 612

          The Attorney General and Mr. Stanley F. Reed, Sol. Gen., of Washington, D.C., for the United States.

  [Argument of Counsel from pages 612-618 intentionally omitted]

Page 618

           Mr. Justice SUTHERLAND delivered the opinion of the Court.

          Plaintiff brought suit in the Court of Claims against the United States to recover a sum of money alleged to be due the deceased for salary as a Federal Trade Commissioner from October 8, 1933, when the President undertook to remove him from office, to the time of his death on February 14, 1934. The court below has certified to this court two questions (Act of February 13, 1925, § 3(a), c. 229, 43 Stat. 936, 939, 28 U.S.C. § 288 (28 USCA § 288)), in respect of the power of the President to make the removal. The material facts which give rise to the questions are as follows:

          William E. Humphrey, the decedent, on December 10, 1931, was nominated by President Hoover to succeed himself as a member of the Federal Trade Commission, and was confirmed by the United States Senate. He was duly commissioned for a term of seven years, expiring September 25, 1938; and, after taking the required oath of office, entered upon his duties. On July 25, 1933, President Roosevelt addressed a letter to the commissioner asking for his resignation, on the ground 'that the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection,' but disclaiming any reflection upon the commissioner personally or upon his services. The commissioner replied, asking time to con-

Page 619

sult his friends. After some further correspondence upon the subject, the President on August 31, 1933, wrote the commissioner expressing the hope that the resignation would be forthcoming, and saying: 'You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence.'

          The commissioner declined to resign; and on October 7, 1933, the President wrote him: 'Effective as of this date you are hereby removed from the office of Commissioner of the Federal Trade Commission.'

          Humphrey never acquiesced in this action, but continued thereafter to insist that he was still a member of the commission, entitled to perform its duties and receive the compensation provided by law at the rate of $10,000 per annum. Upon these and other facts set forth in the certificate, which we deem it unnecessary to recite, the following questions are certified:

          '1. Do the provisions of section 1 of the Federal Trade Commission Act, stating that 'any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office', restrict or limit the power of the President to remove a commissioner except upon one or more of the causes named?

          'If the foregoing question is answered in the affirmative, then—

          '2. If the power of the President to remove a commissioner is restricted or limited as shown by the foregoing interrogatory and the answer made thereto, is such a restriction or limitation valid under the Constitution of the United States?'

          The Federal Trade Commission Act, c. 311, 38 Stat. 717, 718, §§ 1, 2, 15 U.S.C. §§ 41, 42 (15 USCA §§ 41, 42), creates a commission of five

Page 620

members to be appointed by the President by and with the advice and consent of the Senate, and section 1 provides: 'Not more than three of the commissioners shall be members of the same political party. The first commissioners appointed shall continue in office for terms of three, four, five, six, and seven years, respectively, from the date of the taking effect of this Act (September 26, 1914), the term of each to be designated by the President, but their successors shall be appointed for terms of seven years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed. The commission shall choose a chairman from its own membership. No commissioner shall engage in any other business, vocation, or employment. Any commissioner may be removed by the President for inefficiency. neglect of duty, or malfeasance in office. * * *'

          Section 5 of the act (15 USCA § 45) in part provides that:

          'Unfair methods of competition in commerce are declared unlawful.

          'The commission is empowered and directed to prevent persons, partnerships, or corporations, except banks, and common carriers subject to the Acts to regulate commerce, from using unfair methods of competition in commerce.'

          In exercising this power, the commission must issue a complaint stating its charges and giving notice of hearing upon a day to be fixed. A person, partnership, or corporation proceeded against is given the right to appear at the time and place fixed and show cause why an order to cease and desist should not be issued. There is provision for intervention by others interested. If the commission finds the method of competition is one prohibited by the act, it is directed to make a report in writing stating its findings as to the facts, and to issue and cause to be served a cease and desist order. If the order is disobeyed, the commission may apply to the appropriate Circuit Court of

Page 621

Appeals for its enforcement. The party subject to the order may seek and obtain a review in the Circuit Court of Appeals in a manner provided by the act.

          Section 6 (15 USCA § 46), among other things, gives the commission wide powers of investigation in respect of certain corporations subject to the act, and in respect of other matters, upon which it must report to Congress with recommendations. Many such investigations have been made, and some have served as the basis of congressional legislation.

          Section 7 (15 USCA § 47), provides that: 'In any suit in equity brought by or under the direction of the Attorney General as provided in the antitrust Acts, the court may, upon the conclusion of the testimony therein, if it shall be then of opinion that the complainant is entitled to relief, refer said suit to the commission, as a master in chancery, to ascertain and report an appropriate form of decree therein. The commission shall proceed upon such notice to the parties and under such rules of procedure as the court may prescribe, and upon the coming in of such report such exceptions may be filed and such proceedings had in relation thereto as upon the report of a master in other equity causes, but the court may adopt or reject such report, in whole or in part, and enter such decree as the nature of the case may in its judgment require.'

          First. The question first to be considered is whether, by the provisions of section 1 of the Federal Trade Commission Act already quoted, the President's power is limited to removal for the specific causes enumerated therein. The negative contention of the government is based principally upon the decision of this court in Shurtleff v. United States, 189 U.S. 311, 23 S.Ct. 535, 537, 47 L.Ed. 828. That case involved the power of the President to remove a general appraiser of merchandise appointed under the Act of June 10, 1890, 26 Stat. 131. Section 12 of the act provided for the appointment by the President, by and with the advice and con-

Page 622

sent of the Senate, of nine general appraisers of merchandise, who 'may be removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office.' The President removed Shurtleff without assigning any cause therefor. The Court of Claims dismissed plaintiff's petition to recover salary, upholding the President's power to remove for causes other than those stated. In this court Shurtleff relied upon the maxim expressio unius est exclusio alterius; but this court held that, while the rule expressed in the maxim was a very proper one and founded upon justifiable reasoning in many instances, it 'should not be accorded controlling weight when to do so would involve the alteration of the universal practice of the government for over a century, and the consequent curtailment of the powers of the Executive in such an unusual manner.' What the court meant by this expression appears from a reading of the opinion. That opinion, after saying that no term of office was fixed by the act and that, with the exception of judicial officers provided for by the Constitution, no civil officer had ever held office by life tenure since the foundation of the government, points out that to construe the statute as contended for by Shurtleff would give the appraiser the right to hold office during his life or until found guilty of some act specified in the statute, the result of which would be a complete revolution in respect of the general tenure of office, effected by implication with regard to that particular office only.

          'We think it quite inadmissible,' the court said (189 U.S. 311, at pages 316, 318, 23 S.Ct. 535, 537, 47 L.Ed. 828), 'to attribute an intention on the part of Congress to make such an extraordinary change in the usual rule governing the tenure of office, and one which is to be applied to this particular office only, without stating such intention in plain and explicit language, instead of leaving it to be implied from doubtful inferences. * * * We cannot bring ourselves to the belief that Congress ever

Page 623

intended this result while omitting to use language which would put that intention beyond doubt.'

          These circumstances, which led the court to reject the maxim as inapplicable, are exceptional. In the face of the unbroken precedent against life tenure, except in the case of the judiciary, the conclusion that Congress intended that, from among all other civil officers, appraisers alone should be selected to hold office for life was so extreme as to forbid, in the opinion of the court, any ruling which would produce that result if it reasonably could be avoided. The situation here presented is plainly and wholly different. The statute fixes a term of office, in accordance with many precedents. The first commissioners appointed are to continue in office for terms of three, four, five, six, and seven years, respectively; and their successors are to be appointed for terms of seven years—any commissioner being subject to removal by the President for inefficiency, neglect of duty, or malfeasance in office. The words of the act are definite and unambiguous.

          The government says the phrase 'continue in office' is of no legal significance and, moreover, applies only to the first Commissioners. We think it has significance. It may be that, literally, its application is restricted as suggested; but it, nevertheless, lends support to a view contrary to that of the government as to the meaning of the entire requirement in respect of tenure; for it is not easy to suppose that Congress intended to secure the first commissioners against removal except for the causes specified and deny like security to their successors. Putting this phrase aside, however, the fixing of a definite term subject to removal for cause, unless there be some countervailing provision or circumstance indicating the contrary, which here we are unable to find, is enough to establish the legislative intent that the term is not to be curtailed in the absence of such cause. But if the intention of

Page 624

Congress that no removal should be made during the specified term except for one or more of the enumerated causes were not clear upon the face of the statute, as we think it is, it would be made clear by a consideration of the character of the commission and the legislative history which accompanied and preceded the passage of the act.

          The commission is to be nonpartisan; and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi judicial and quasi legislative. Like the Interstate Commerce Commission, its members are called upon to exercise the trained judgment of a body of experts 'appointed by law and informed by experience.' Illinois Cent. &c. R.R. v. Inter. Com. Comm., 206 U.S. 441, 454, 27 S.Ct. 700, 704, 51 L.Ed. 1128; Standard Oil Co. v. United States, 283 U.S. 235, 238, 239, 51 S.Ct. 429, 75 L.Ed. 999.

          The legislative reports in both houses of Congress clearly reflect the view that a fixed term was necessary to the effective and fair administration of the law. In the report to the Senate (No. 597, 63d Cong., 2d Sess., pp. 10, 11) the Senate Committee on Interstate Commerce, in support of the bill which afterwards became the act in question, after referring to the provision fixing the term of office at seven years, so arranged that the membership would not be subject to complete change at any one time, said: 'The work of this commission will be of a most exacting and difficult character, demanding persons who have experience in the problems to be met—that is, a proper knowledge of both the public requirements and the practical affairs of industry. It is manifestly desirable that the terms of the commissioners shall be long enough to give them an opportunity to acquire the expertness in dealing with these special questions concerning industry that comes from experience.'

Page 625

          The report declares that one advantage which the commission possessed over the Bureau of Corporations (an executive subdivision in the Department of Commerce which was abolished by the act) lay in the fact of its independence, and that it was essential that the commission should not be open to the suspicion of partisan direction. The report quotes (p. 22) a statement to the committee by Senator Newlands, who reported the bill, that the tribunal should be of high character and 'independent of any department of the government. * * * a board or commission of dignity, permanence, and ability, independent of executive authority, except in its selection, and independent in character.'

          The debates in both houses demonstrate that the prevailing view was that the Commission was not to be 'subject to anybody in the government but * * * only to the people of the United States'; free from 'political domination or control' or the 'probability or possibility of such a thing'; to be 'separate and apart from any existing department of the government—not subject to the orders of the President.'

          More to the same effect appears in the debates, which were long and thorough and contain nothing to the contrary. While the general rule precludes the use of these debates to explain the meaning of the words of the statute, they may be considered as reflecting light upon its general purposes and the evils which it sought to remedy. Federal Trade Commission v. Raladam Co., 283 U.S. 643, 650, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191.

          Thus, the language of the act, the legislative reports, and the general purposes of the legislation as reflected by the debates, all combine to demonstrate the congressional intent to create a body of experts who shall gain experience by length of service; a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official

Page 626

or any department of the government. To the accomplishment of these purposes, it is clear that Congress was of opinion that length and certainty of tenure would vitally contribute. And to hold that, nevertheless, the members of the commission continue in office at the mere will of the President, might be to thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office.

          We conclude that the intent of the act is to limit the executive power of removal to the causes enumerated, the existence of none of which is claimed here; and we pass to the second question.

          Second. To support its contention that the removal provision of section 1, as we have just construed it, is an unconstitutional interference with the executive power of the President, the government's chief reliance is Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160. That case has been so recently decided, and the prevailing and dissenting opinions so fully review the general subject of the power of executive removal, that further discussion would add little of value to the wealth of material there collected. These opinions examine at length the historical, legislative, and judicial data bearing upon the question, beginning with what is called 'the decision of 1789' in the first Congress and coming down almost to the day when the opinions were delivered. They occupy 243 pages of the volume in which they are printed. Nevertheless, the narrow point actually decided was only that the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by act of Congress. In the course of the opinion of the court, expressions occur which tend to sustain the government's contention, but these are beyond the point involved and, therefore, do not come within the rule of stare decisis. In so far as they are out of harmony with the views here set forth, these expressions are disapproved. A like situation was

Page 627

presented in the case of Cohens v. Virginia, 6 Wheat, 264, 399, 5 L.Ed. 257, in respect of certain general expressions in the opinion in Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60. Chief Justice Marshall, who delivered the opinion in the Marbury Case, speaking again for the court in the Cohens Case, said: 'It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.'

          And he added that these general expressions in the case of Marbury v. Madison were to be understood with the limitations put upon them by the opinion in the Cohens Case. See, also, Carroll v. Lessee of Carroll et al., 16 How. 275, 286—287, 14 L.Ed. 936; O'Donoghue v. United States, 289 U.S. 516, 550, 53 S.Ct. 740, 77 L.Ed. 1356.

          The office of a postmaster is so essentially unlike the office now involved that the decision in the Myers Case cannot be accepted as controlling our decision here. A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The 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 subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include

Page 628

all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.

          The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. In administering the provisions of the statute in respect of 'unfair methods of competition,' that is to say, in filling in and administering the details embodied by that general standard, the commission acts in part quasi legislatively and in part quasi judicially. In making investigations and reports thereon for the information of Congress under section 6, in aid of the legislative power, it acts as a legislative agency. Under section 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function, as distinguished from executive power in the constitutional sense, it does so in the discharge and effectuation of its quasi legislative or quasi judicial powers, or as an agency of the legislative or judicial departments of the government.¹

Page 629

          If Congress is without authority to prescribe causes for removal of members of the trade commission and limit executive power of removal accordingly, that power at once becomes practically all-inclusive in respect of civil officers with the exception of the judiciary provided for by the Constitution. The Solicitor General, at the bar, apparently recognizing this to be true, with commendable candor, agreed that his view in respect of the removability of members of the Federal Trade Commission necessitated a like view in respect of the Interstate Commerce Commission and the Court of Claims. We are thus confronted with the serious question whether not only the members of these quasi legislative and quasi judicial bodies, but the judges of the legislative Court of Claims, exercising judicial power (Williams v. United States, 289 U.S. 553, 565—567, 53 S.Ct. 751, 77 L.Ed. 1372), continue in office only at the pleasure of the President.

          We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi legislative or quasi judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will.

          The fundamental necessity of maintaining each of the three general 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

Page 630

the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential coequality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there. James Wilson, one of the framers of the Constitution and a former justice of this court, said that the independence of each department required that its proceedings 'should be free from the remotest influence, direct or indirect, of either of the other two powers.' Andrews, The Works of James Wilson (1896), vol. 1, p. 367. And Mr. Justice Story in the first volume of his work on the Constitution (4th Ed.) § 530, citing No. 48 of the Federalist, said that neither of the departments in reference to each other 'ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.' And see O'Donoghue v. United States, supra, 289 U.S. 516, at pages 530-531, 53 S.Ct. 740, 77 L.Ed. 1356.

          The power of removal here claimed for the President falls within this principle, since its coercive influence threatens the independence of a commission, which is not only wholly disconnected from the executive department, but which, as already fully appears, was created by Congress as a means of carrying into operation legislative and judicial powers, and as an agency of the legislative and judicial departments.

          In the light of the question now under consideration, we have re-examined the precedents referred to in the Myers Case, and find nothing in them to justify a conclusion contrary to that which we have reached. The so-called 'decision of 1789' had relation to a bill proposed by Mr. Madison to establish an executive Department of Foreign Affairs. The bill provided that the principal officer was 'to be removable

Page 631

from office by the President of the United States.' This clause was changed to read 'whenever the principal officer shall be removed from office by the President of the United States,' certain things should follow, thereby, in connection with the debates, recognizing and confirming, as the court thought in the Myers Case, the sole power of the President in the matter. We shall not discuss the subject further, since it is so fully covered by the opinions in the Myers Case, except to say that the office under consideration by Congress was not only purely executive, but the officer one who was responsible to the President, and to him alone, in a very definite sense. A reading of the debates shows that the President's illimitable power of removal was not considered in respect of other than executive officers. And it is pertinent to observe that when, at a later time, the tenure of office for the Comptroller of the Treasury was under consideration, Mr. Madison quite evidently thought that, since the duties of that office were not purely of an executive nature but partook of the judiciary quality as well, a different rule in respect of executive removal might well apply. 1 Annals of Congress, cols. 611-612.

          In Marbury v. Madison, supra, 1 Cranch, 137, at pages 162, 165-166, 2 L.Ed. 60, it is made clear that Chief Justice Marshall was of opinion that a justice of the peace for the District of Columbia was not removable at the will of the President; and that there was a distinction between such an officer and officers appointed to aid the President in the performance of his constitutional duties. In the latter case, the distinction he saw was that 'their acts are his acts' and his will, therefore, controls; and, by way of illustration, he adverted to the act establishing the Department of Foreign Affairs, which was the subject of the 'decision of 1789.'

          The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause will depend upon the character of the office; the Myers decision, affirming the power of the President

Page 632

alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.

          To the extent that, between the decision in the Myers Case, which sustains the unrestrictable power of the President to remove purely executive officers, and our present decision that such power does not extend to an office such as that here involved, there shall remain a field of doubt, we leave such cases as may fall within it for future consideration and determination as they may arise.

          In accordance with the foregoing, the questions submitted are answered:

          Question No. 1, Yes.

          Question No. 2, Yes.

          Mr. Justice McREYNOLDS agrees that both questions should be answered in the affirmative. A separate opinion in Myers v. United States, 272 U.S. 52, at page 178, 47 S.Ct. 21, at page 46, 71 L.Ed. 160, states his views concerning the power of the President to remove appointees.

^{1 The provision of section 6(d) of the act (15 USCA § 46(d) which authorizes the President to direct an investigation and report by the commission in relation to alleged violations of the anti-trust acts, is so obviously collateral to the main design of the act as not to detract from the force of this general statement as to the character of that body.}

                            See 424 U.S. 936, 96 S.Ct. 1153.

          The Federal Election Campaign Act of 1971 (Act), as amended in 1974, (a) limits political contributions to candidates for federal elective office by an individual or a group to $1,000 and by a political committee to $5,000 to any single candidate per election, with an overall annual limitation of $25,000 by an individual contributor; (b) limits expenditures by individuals or groups "relative to a clearly identified candidate" to $1,000 per candidate per election, and by a candidate from his personal or family funds to various specified annual amounts depending upon the federal office sought, and restricts overall general election and primary campaign expenditures by candidates to various specified amounts, again depending upon the federal office sought; (c) requires political committees to keep detailed records of contributions and expenditures, including the name and address of each individual contributing in excess of $10, and his occupation and

Page 2

principal place of business if his contribution exceeds $100, and to file quarterly reports with the Federal Election Commission disclosing the source of every contribution exceeding $100 and the recipient and purpose of every expenditure over $100, and also requires every individual or group, other than a candidate or political committee, making contributions or expenditures exceeding $100 "other than by contribution to a political committee or candidate" to file a statement with the Commission; and (d) creates the eight-member Commission as the administering agency with recordkeeping, disclosure, and investigatory functions and extensive rulemaking, adjudicatory, and enforcement powers, and consisting of two members appointed by the President pro tempore of the Senate, two by the Speaker of the House, and two by the President (all subject to confirmation by both Houses of Congress), and the Secretary of the Senate and the Clerk of the House as ex officio nonvoting members. Subtitle H of the Internal Revenue Code of 1954 (IRC), as amended in 1974, provides for public financing of Presidential nominating conventions and general election and primary campaigns from general revenues and allocates such funding to conventions and general election campaigns by establishing three categories: (1) "major" parties (those whose candidate received 25% Or more of the vote in the most recent election), which receive full funding; (2) "minor" parties (those whose candidate received at least 5% But less than 25% Of the votes at the last election), which receive only a percentage of the funds to which the major parties are entitled; and (3) "new" parties (all other parties), which are limited to receipt of post-election funds or are not entitled to any funds if their candidate receives less than 5% Of the vote. A primary candidate for the Presidential nomination by a political party who receives more than $5,000 from private sources (counting only the first $250 of each contribution) in each of at least 20 States is eligible for matching public funds. Appellants (various federal officeholders and candidates, supporting political organizations, and others) brought suit against appellees (the Secretary of the Senate, Clerk of the House, Comptroller General, Attorney General, and the Commission) seeking declaratory and injunctive relief against the above statutory provisions on various constitutional grounds. The Court of Appeals, on certified questions from the District Court, upheld all but one of the statutory provisions. A three-judge District Court upheld the constitutionality of Subtitle H. Held :

Page 3

          1. This litigation presents an Art. III "case or controversy," since the complaint discloses that at least some of the appellants have a sufficient "personal stake" in a determination of the constitutional validity of each of the challenged provisions to present "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 464, 81 L.Ed. 617. P. 11-12.

          2. The Act's contribution provisions are constitutional, but the expenditure provisions violate the First Amendment. Pp. 12-59.

          (a) The contribution provisions, along with those covering disclosure, are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. Pp. 23-38.

          (b) The First Amendment requires the invalidation of the Act's independent expenditure ceiling, its limitation on a candidate's expenditures from his own personal funds, and its ceilings on overall campaign expenditures, since those provisions place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate. Pp. 39-59.

          3. The Act's disclosure and recordkeeping provisions are constitutional. Pp. 60-84.

          (a) The general disclosure provisions, which serve substantial governmental interests in informing the electorate and preventing the corruption of the political process, are not overbroad insofar as they apply to contributions to minor parties and independent candidates. No blanket exemption for minor parties is warranted since such parties in order to prove injury as a result of application to them of the disclosure provisions need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals in violation of their First Amendment associational rights. Pp. 64-74.

          (b) The provision for disclosure by those who make inde-

Page 4

pendent contributions and expenditures, as narrowly construed to apply only (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent to some person other than a candidate or political committee and (2) when they make an expenditure for a communication that expressly advocates the election or defeat of a clearly identified candidate is not unconstitutionally vague and does not constitute a prior restraint but is a reasonable and minimally restrictive method of furthering First Amendment values by public exposure of the federal election system. Pp. 74-82.

          (c) The extension of the recordkeeping provisions to contributions as small as those just above $10 and the disclosure provisions to contributions above $100 is not on this record overbroad since it cannot be said to be unrelated to the informational and enforcement goals of the legislation. Pp. 82-84.

          4. Subtitle H of the IRC is constitutional. Pp. 85-109.

          (a) Subtitle H is not invalid under the General Welfare Clause but, as a means to reform the electoral process, was clearly a choice within the power granted to Congress by the Clause to decide which expenditures will promote the general welfare. Pp. 90-92.

          (b) Nor does Subtitle H violate the First Amendment. Rather than abridging, restricting, or censoring speech, it represents an effort to use public money to facilitate and enlarge public discussion and participation in the electoral process. Pp. 92-93.

          (c) Subtitle H, being less burdensome than ballot-access regulations and having been enacted in furtherance of vital governmental interests in relieving major-party candidates from the rigors of soliciting private contributions, in not funding candidates who lack significant public support, and in eliminating reliance on large private contributions for funding of conventions and campaigns, does not invidiously discriminate against minor and new parties in violation of the Due Process Clause of the Fifth Amendment. Pp. 93-108.

          (d) Invalidation of the spending-limit provisions of the Act does not render Subtitle H unconstitutional, but the Subtitle is severable from such provisions and is not dependent upon the existence of a generally applicable expenditure limit. Pp. 108-109.

          5. The Commission's composition as to all but its investigative and informative powers violates Art. II, § 2, cl. 2. With respect to the Commission's powers, all of which are ripe for review,

Page 5

to enforce the Act, including primary responsibility for bringing civil actions against violators, to make rules for carrying out the Act, to temporarily disqualify federal candidates for failing to file required reports, and to authorize convention expenditures in excess of the specified limits, the provisions of the Act vesting such powers in the Commission and the prescribed method of appointment of members of the Commission to the extent that a majority of the voting members are appointed by the President pro tempore of the Senate and the Speaker of the House, violate the Appointments Clause, which provides in pertinent part that the President shall nominate, and with the Senate's advice and consent appoint, all "Officers of the United States," whose appointments are not otherwise provided for, but that Congress may vest the appointment of such inferior officers, as it deems proper, in the President alone, in the courts, or in the heads of departments. Hence (though the Commission's past acts are accorded de facto validity and a stay is granted permitting it to function under the Act for not more than 30 days), the Commission, as presently constituted, may not because of that Clause exercise such powers, which can be exercised only by "Officers of the United States" appointed in conformity with the Appointments Clause, although it may exercise such investigative and informative powers as are in the same category as those powers that Congress might delegate to one of its own committees. Pp. 109-143.

          171 U.S.App.D.C. 172, 519 F.2d 821, affirmed in part and reversed in part; D.C., 401 F.Supp. 1235, affirmed.

          Ralph K. Winter, Jr., New Haven, Conn., pro hac vice, by special leave of Court, Joel M. Gora, New York City,

Page 6

Brice M. Clagett, Washington, D.C., for appellants.

          Daniel M. Friedman, Washington, D.C., Archibald Cox, Cambridge, Mass., Lloyd N. Cutler, Washington, D.C., Ralph S. Spritzer, Philadelphia, Pa., for appellees.

           PER CURIAM.

          These appeals present constitutional challenges to the key provisions of the Federal Election Campaign Act of 1971 (Act), and related provisions of the Internal Revenue Code of 1954, all as amended in 1974.¹

Page 7

          The Court of Appeals, in sustaining the legislation in large part against various constitutional challenges,² viewed it as "by far the most comprehensive reform legislation (ever) passed by Congress concerning the election of the President, Vice-President, and members of Congress." 171 U.S.App.D.C. 172, 182, 519 F.2d 821, 831 (1975). The statutes at issue summarized in broad terms, contain the following provisions: (a) individual political contributions are limited to $1,000 to any single candidate per election, with an overall annual limitation of $25,000 by any contributor; independent expenditures by individuals and groups "relative to a clearly identified candidate" are limited to $1,000 a year; campaign spending by candidates for various federal offices and spending for national conventions by political parties are subject to prescribed limits; (b) contributions and expenditures above certain threshold levels must be reported and publicly disclosed; (c) a system for public funding of Presidential campaign activities is established by Subtitle H of the Internal Revenue Code; ³ and (d) a Federal Election Commission is established to administer and enforce the legislation.

          This suit was originally filed by appellants in the United States District Court for the District of Columbia. Plaintiffs included a candidate for the Presidency of the United States, a United States Senator who is a candidate for re-election, a potential contributor, the

Page 8

Committee for a Constitutional Presidency McCarthy '76, the Conservative Party of the State of New York, the Mississippi Republican Party, the Libertarian Party, the New York Civil Liberties Union, Inc., the American Conservative Union, the Conservative Victory Fund, and Human Events, Inc. The defendants included the Secretary of the United States Senate and the Clerk of the United States House of Representatives, both in their official capacities and as ex officio members of the Federal Election Commission. The Commission itself was named as a defendant. Also named were the Attorney General of the United States and the Comptroller General of the United States.

          Jurisdiction was asserted under 28 U.S.C. §§ 1331, 2201, and 2202, and § 315(a) of the Act, 2 U.S.C. § 437h(a) (1970 ed., Supp. IV).⁴ The complaint sought both a

Page 9

declaratory judgment that the major provisions of the Act were unconstitutional and an injunction against enforcement of those provisions. Appellants requested the convocation of a three-judge District Court as to all matters and also requested certification of constitutional questions to the Court of Appeals, pursuant to the terms of § 315(a). The District Judge denied the application for a three-judge court and directed that the case be transmitted to the Court of Appeals. That court entered an order stating that the case was "preliminarily deemed" to be properly certified under § 315(a). Leave to intervene was granted to various groups and individuals.⁵ After considering matters regarding factfinding procedures, the Court of Appeals entered an order en banc remanding the case to the District Court to (1) identify the constitutional issues in the complaint; (2) take whatever evidence was found necessary in addition to the submissions suitably dealt with by way of judicial notice; (3) make findings of fact with reference to those issues; and (4) certify the constitutional questions arising from the foregoing steps to the Court of Appeals.⁶ On remand, the District

Page 10

Judge entered a memorandum order adopting extensive findings of fact and transmitting the augmented record back to the Court of Appeals.

          On plenary review, a majority of the Court of Appeals rejected, for the most part, appellants' constitutional attacks. The court found "a clear and compelling interest," 171 U.S.App.D.C., at 192, 519 F.2d, at 841, in preserving the integrity of the electoral process. On that basis, the court upheld, with one exception,⁷ the substantive provisions of the Act with respect to contributions, expenditures, and disclosure. It also sustained the constitutionality of the newly established Federal Election Commission. The court concluded that, notwithstanding the manner of selection of its members and the breadth of its powers, which included nonlegislative functions, the Commission is a constitutionally authorized agency created to perform primarily legislative functions.⁸

Page 11

The provisions for public funding of the three stages of the Presidential selection process were upheld as a valid exercise of congressional power under the General Welfare Clause of the Constitution, Art. I, § 8.

          In this Court, appellants argue that the Court of Appeals failed to give this legislation the critical scrutiny demanded under accepted First Amendment and equal protection principles. In appellants' view, limiting the use of money for political purposes constitutes a restriction on communication violative of the First Amendment, since virtually all meaningful political communications in the modern setting involve the expenditure of money. Further, they argue that the reporting and disclosure provisions of the Act unconstitutionally impinge on their right to freedom of association. Appellants also view the federal subsidy provisions of Subtitle H as violative of the General Welfare Clause, and as inconsistent with the First and Fifth Amendments. Finally, appellants renew their attack on the Commission's composition and powers.

          At the outset we must determine whether the case before us presents a "case or controversy" within the meaning of Art. III of the Constitution. Congress may not, of course, require this Court to render opinions in matters which are not "cases or controversies." Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 463-464, 81 L.Ed. 617 (1937). We must therefore decide whether appellants have the "personal stake in the outcome of the controversy" necessary to meet the requirements of Art. III. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). It is clear that Congress, in en-

Page 12

acting 2 U.S.C. § 437h (1970 ed., Supp. IV),⁹ intended to provide judicial review to the extent permitted by Art. III. In our view, the complaint in this case demonstrates that at least some of the appellants have a sufficient "personal stake" ¹⁰ in a determination of the constitutional validity of each of the challenged provisions to present "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, supra, 300 U.S. at 241, 57 S.Ct. at 464.¹¹

                  I. CONTRIBUTION AND EXPENDITURE LIMITATIONS

          The intricate statutory scheme adopted by Congress to regulate federal election campaigns includes restric-

Page 13

tions on political contributions and expenditures that apply broadly to all phases of and all participants in the election process. The major contribution and expenditure limitations in the Act prohibit individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign ¹² and from spending more than $1,000 a year "relative to a clearly identified candidate." ¹³ Other provisions restrict a candidate's use of personal and family resources in his campaign ¹⁴ and limit the overall amount that can be spent by a candidate in campaigning for federal office.¹⁵

          The constitutional power of Congress to regulate federal elections is well established and is not questioned by any of the parties in this case.¹⁶ Thus, the critical con-

Page 14

stitutional questions presented here go not to the basic power of Congress to legislate in this area, but to whether the specific legislation that Congress has enacted interferes with First Amendment freedoms or invidiously discriminates against nonincumbent candidates and minor parties in contravention of the Fifth Amendment.

          The Act's contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order "to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957). Although First Amendment protections are not confined to "the exposition of ideas," Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 667, 92 L.Ed. 840 (1948), "there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. . . . of course includ(ing) discussions of candidates . . . ." Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966). This no more than reflects our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open," New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candi-

Page 15

dates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971), "it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office."

          The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958), stemmed from the Court's recognition that "(e)ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association." Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee " 'freedom to associate with others for the common advancement of political beliefs and ideas,' " a freedom that encompasses " '(t)he right to associate with the political party of one's choice.' " Kusper v. Pontikes, 414 U.S. 51, 56, 57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260 (1973), quoted in Cousins v. Wigoda, 419 U.S. 477, 487, 95 S.Ct. 541, 547, 42 L.Ed.2d 595 (1975).

          It is with these principles in mind that we consider the primary contentions of the parties with respect to the Act's limitations upon the giving and spending of money in political campaigns. Those conflicting contentions could not more sharply define the basic issues before us. Appellees contend that what the Act regulates is conduct, and that its effect on speech and association is incidental at most. Appellants respond that contributions and expenditures are at the very core of political speech, and that the Act's limitations thus constitute restraints on First Amendment liberty that are both gross and direct.

          In upholding the constitutional validity of the Act's contribution and expenditure provisions on the ground

Page 16

that those provisions should be viewed as regulating conduct, not speech, the Court of Appeals relied upon United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). See 171 U.S.App.D.C., at 191, 519 F.2d, at 840. The O'Brien case involved a defendant's claim that the First Amendment prohibited his prosecution for burning his draft card because his act was " 'symbolic speech' " engaged in as a " 'demonstration against the war and against the draft.' " 391 U.S., at 376, 88 S.Ct., at 1678. On the assumption that "the alleged communicative element in O'Brien's conduct (was) sufficient to bring into play the First Amendment," the Court sustained the conviction because it found "a sufficiently important governmental interest in regulating the nonspeech element" that was "unrelated to the suppression of free expression" and that had an "incidental restriction on alleged First Amendment freedoms . . . no greater than (was) essential to the furtherance of that interest." Id., at 376-377, 88 S.Ct., at 1678. The Court expressly emphasized that O'Brien was not a case "where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful." Id., at 382, 88 S.Ct., at 1682.

          We cannot share the view that the present Act's contribution and expenditure limitations are comparable to the restrictions on conduct upheld in O'Brien. The expenditure of money simply cannot be equated with such conduct as destruction of a draft card. Some forms of communication made possible by the giving and spending of money involve speech alone, some involve conduct primarily, and some involve a combination of the two. Yet this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment. See Bigelow v. Virginia, 421 U.S. 809,

Page 17

820, 95 S.Ct. 2222, 2231, 44 L.Ed.2d 600 (1975); New York Times Co. v. Sullivan, supra, 376 U.S., at 266, 84 S.Ct., at 718. For example, in Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the Court contrasted picketing and parading with a newspaper comment and a telegram by a citizen to a public official. The parading and picketing activities were said to constitute conduct "intertwined with expression and association," whereas the newspaper comment and the telegram were described as a "pure form of expression" involving "free speech alone" rather than "expression mixed with particular conduct." Id., at 563-564, 85 S.Ct., at 480-481.

          Even if the categorization of the expenditure of money as conduct were accepted, the limitations challenged here would not meet the O'Brien test because the governmental interests advanced in support of the Act involve "suppressing communication." The interests served by the Act include restricting the voices of people and interest groups who have money to spend and reducing the overall scope of federal election campaigns. Although the Act does not focus on the ideas expressed by persons or groups subject to its regulations, it is aimed in part at equalizing the relative ability of all voters to affect electoral outcomes by placing a ceiling on expenditures for political expression by citizens and groups. Unlike O'Brien, where the Selective Service System's administrative interest in the preservation of draft cards was wholly unrelated to their use as a means of communication, it is beyond dispute that the interest in regulating the alleged "conduct" of giving or spending money "arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful." 391 U.S., at 382, 88 S.Ct., at 1682.

          Nor can the Act's contribution and expenditure limitations be sustained, as some of the parties suggest, by reference to the constitutional principles reflected in such

Page 18

decisions as Cox v. Louisiana, supra; Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); and Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). Those cases stand for the proposition that the government may adopt reasonable time, place, and manner regulations, which do not discriminate among speakers or ideas, in order to further an important governmental interest unrelated to the restriction of communication. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975). In contrast to O'Brien, where the method of expression was held to be subject to prohibition, Cox, Adderley, and Kovacs involved place or manner restrictions on legitimate modes of expression picketing, parading, demonstrating, and using a soundtruck. The critical difference between this case and those time, place, and manner cases is that the present Act's contribution and expenditure limitations impose direct quantity restrictions on political communication and association by persons, groups, candidates, and political parties in addition to any reasonable time, place, and manner regulations otherwise imposed.¹⁷

Page 19

          [12] A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.¹⁸ This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.

          The expenditure limitations contained in the Act represent substantial rather than merely theoretical restraints on the quantity and diversity of political speech. The $1,000 ceiling on spending "relative to a clearly identified candidate," 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), would appear to exclude all citizens and groups except candidates, political parties, and the institutional press ¹⁹ from any significant use of the most

Page 20

effective modes of communication.²⁰ Although the Act's limitations on expenditures by campaign organizations and political parties provide substantially greater room for discussion and debate, they would have required restrictions in the scope of a number of past congressional and Presidential campaigns ²¹ and would operate to constrain campaigning by candidates who raise sums in excess of the spending ceiling.

          By contrast with a limitation upon expenditures for political expression, a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor's ability to engage in free com-

Page 21

munication. A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of his contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor's support for the candidate.²² A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor's freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.

          Given the important role of contributions in financing political campaigns, contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy. There is no indication, however, that the contribution limitations imposed by the Act would have any dramatic adverse effect on the funding of campaigns and political associations.²³ The overall effect of the Act's contribu-

Page 22

tion ceilings is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression.

          The Act's contribution and expenditure limitations also impinge on protected associational freedoms. Making a contribution, like joining a political party, serves to affiliate a person with a candidate. In addition, it enables like-minded persons to pool their resources in furtherance of common political goals. The Act's contribution ceilings thus limit one important means of associating with a candidate or committee, but leave the contributor free to become a member of any political association and to assist personally in the association's efforts on behalf of candidates. And the Act's contribution limitations permit associations and candidates to aggregate large sums of money to promote effective advocacy. By contrast, the Act's $1,000 limitation on independent expenditures "relative to a clearly identified candidate" precludes most associations from effectively amplifying the voice of their adherents, the original basis for the recognition of First Amendment protection of the freedom of association. See NAACP v. Alabama, 357 U.S., at 460, 78 S.Ct., at 1171. The Act's constraints on the ability of independent associations and candidate campaign organizations to expend resources on political expression "is simultaneously an interference with the freedom of (their) adherents," Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957) (plurality opinion). See Cousins v.

Page 23

Wigoda, 419 U.S., at 487-488, 95 S.Ct., at 547-548; NAACP v. Button, 371 U.S. 415, 431, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963).

          In sum, although the Act's contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.

1. The $1,000 Limitation on Contributions by Individuals and Groups to Candidates and Authorized Campaign Committees

          Section 608(b) provides, with certain limited exceptions, that "no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000." The statute defines "person" broadly to include "an individual, partnership, committee, association, corporation, or any other organization or group of persons." § 591(g). The limitation reaches a gift, subscription, loan, advance, deposit of anything of value, or promise to give a contribution, made for the purpose of influencing a primary election, a Presidential preference primary, or a general election for any federal office.²⁴ §§ 591(e)(1), (2). The

Page 24

$1,000 ceiling applies regardless of whether the contribution is given to the candidate, to a committee authorized in writing by the candidate to accept contributions on his behalf, or indirectly via earmarked gifts passed through an intermediary to the candidate. §§ 608(b)(4), (6).²⁵ The restriction applies to aggregate amounts contributed to the candidate for each election with primaries, run-off elections, and general elections counted separately, and all Presidential primaries held in any calendar year treated together as a single election campaign. § 608(b)(5).

          Appellants contend that the $1,000 contribution ceiling unjustifiably burdens First Amendment freedoms, employs overbroad dollar limits, and discriminates against candidates opposing incumbent officeholders and against minor-party candidates in violation of the Fifth Amendment. We address each of these claims of invalidity in turn.

          As the general discussion in Part I-A, supra, indicated, the primary First Amendment problem raised by the Act's contribution limitations is their restriction of one aspect of the contributor's freedom of political associ-

Page 25

ation. The Court's decisions involving associational freedoms establish that the right of association is a "basic constitutional freedom," Kusper v. Pontikes, 414 U.S., at 57, 94 S.Ct., at 307, that is "closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society." Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). See, e. g., Bates v. Little Rock, 361 U.S. 516, 522-523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, supra, 357 U.S., at 460-461, 78 S.Ct., at 1170-1171; NAACP v. Button, supra, 371 U.S., at 452, 83 S.Ct., at 347 (Harlan, J., dissenting). In view of the fundamental nature of the right to associate, governmental "action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny." NAACP v. Alabama, supra, 357 U.S., at 460-461, 78 S.Ct., at 1171. Yet, it is clear that "(n)either the right to associate nor the right to participate in political activities is absolute." CSC v. Letter Carriers, 413 U.S. 548, 567, 93 S.Ct. 2880, 2891, 37 L.Ed.2d 796 (1973). Even a " 'significant interference' with protected rights of political association" may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v. Wigoda, supra, 419 U.S., at 488, 95 S.Ct., at 548; NAACP v. Button, supra, 371 U.S., at 438, 83 S.Ct., at 340; Shelton v. Tucker, supra, 364 U.S., at 488, 81 S.Ct., at 252.

          Appellees argue that the Act's restrictions on large campaign contributions are justified by three governmental interests. According to the parties and amici, the primary interest served by the limitations and, indeed, by the Act as a whole, is the prevention of corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions on candidates' positions and on their actions if elected to office. Two "ancillary" interests underlying the Act are also allegedly furthered by the $1,000 limits on contributions. First, the limits serve to mute the voices of affluent persons and groups in the election

Page 26

process and thereby to equalize the relative ability of all citizens to affect the outcome of elections.²⁶ Second, it is argued, the ceilings may to some extent act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money.²⁷

          It is unnecessary to look beyond the Act's primary purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions in order to find a constitutionally sufficient justification for the $1,000 contribution limitation. Under a system of private financing of elections, a candidate lacking immense personal or family wealth must depend on financial contributions from others to provide the resources necessary to conduct a successful campaign. The increasing importance of the communications media and sophisticated mass-mailing and polling operations to effective campaigning make the raising of large sums of money an ever more essential ingredient of an effective candidacy. To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of

Page 27

representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one.²⁸

          Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions. In CSC v. Letter Carriers, supra, the Court found that the danger to "fair and effective government" posed by partisan political conduct on the part of federal employees charged with administering the law was a sufficiently important concern to justify broad restrictions on the employees' right of partisan political association. Here, as there, Congress could legitimately conclude that the avoidance of the appearance of improper influence "is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent." 413 U.S., at 565, 93 S.Ct., at 2890.²⁹

          Appellants contend that the contribution limitations must be invalidated because bribery laws and narrowly drawn disclosure requirements constitute a less restrictive means of dealing with "proven and suspected quid pro quo arrangements." But laws making criminal

Page 28

the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action. And while disclosure requirements serve the many salutary purposes discussed elsewhere in this opinion,³⁰ Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption inherent in a system permitting unlimited financial contributions, even when the identities of the contributors and the amounts of their contributions are fully disclosed.

          The Act's $1,000 contribution limitation focuses precisely on the problem of large campaign contributions the narrow aspect of political association where the actuality and potential for corruption have been identified while leaving persons free to engage in independent political expression, to associate actively through volunteering their services, and to assist to a limited but nonetheless substantial extent in supporting candidates and committees with financial resources.³¹ Significantly, the

Page 29

Act's contribution limitations in themselves do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties.

          We find that, under the rigorous standard of review established by our prior decisions, the weighty interests served by restricting the size of financial contributions to political candidates are sufficient to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling.

          Appellants' first overbreadth challenge to the contribution ceilings rests on the proposition that most large contributors do not seek improper influence over a candidate's position or an officeholder's action. Although the truth of that proposition may be assumed, it does not

Page 30

undercut the validity of the $1,000 contribution limitation. Not only is it difficult to isolate suspect contributions, but, more importantly, Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.

          A second, related overbreadth claim is that the $1,000 restriction is unrealistically low because much more than that amount would still not be enough to enable an unscrupulous contributor to exercise improper influence over a candidate or officeholder, especially in campaigns for statewide or national office. While the contribution limitation provisions might well have been structured to take account of the graduated expenditure limitations for congressional and Presidential campaigns,³² Congress' failure to engage in such fine tuning does not invalidate the legislation. As the Court of Appeals observed, "(i)f it is satisfied that some limit on contributions is necessary, a court has no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000." 171 U.S.App.D.C., at 193, 519 F.2d, at 842. Such distinctions in degree become significant only when they can be said to amount to differences in kind. Compare Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260, with Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973).

          Apart from these First Amendment concerns, appellants argue that the contribution limitations work such an invidious discrimination between incumbents

Page 31

and challengers that the statutory provisions must be declared unconstitutional on their face.³³ In considering this contention, it is important at the outset to note that the Act applies the same limitations on contributions to all candidates regardless of their present occupations, ideological views, or party affiliations. Absent record evidence of invidious discrimination against challengers as a class, a court should generally be hesitant to invalidate legislation which on its face imposes evenhanded restrictions. Cf. James v. Valtierra, 402 U.S. 137, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971).

Page 32

          [23] There is no such evidence to support the claim that the contribution limitations in themselves discriminate against major-party challengers to incumbents. Challengers can and often do defeat incumbents in federal elections.³⁴ Major-party challengers in federal elections are usually men and women who are well known and influential in their community or State. Often such challengers are themselves incumbents in important local, state, or federal offices. Statistics in the record indicate that major-party challengers as well as incumbents are capable of raising large sums for campaigning.³⁵ Indeed, a small but nonetheless significant number of challengers have in recent elections outspent their incumbent rivals.³⁶ And, to the extent that incumbents generally are more likely than challengers to attract very large contributions, the Act's $1,000 ceiling has the practical effect of benefiting challengers as a class.³⁷ Contrary to the broad gen-

Page 33

eralization drawn by the appellants, the practical impact of the contribution ceilings in any given election will clearly depend upon the amounts in excess of the ceilings that, for various reasons, the candidates in that election would otherwise have received and the utility of these additional amounts to the candidates. To be sure, the limitations may have a significant effect on particular challengers or incumbents, but the record provides no basis for predicting that such adventitious factors will invariably and invidiously benefit incumbents as a class.³⁸ Since the danger of corruption and the appearance of corruption apply with equal force to challengers and to incumbents, Congress had ample justification for imposing the same fundraising constraints upon both.

          The charge of discrimination against minor-party and independent candidates is more troubling, but the record provides no basis for concluding that the Act invidiously disadvantages such candidates. As noted above, the Act on its face treats all candidates equally with regard to contribution limitations. And the restriction would appear to benefit minor-party and independent candidates relative to their major-party opponents because major-party candidates receive far more money in large contributions.³⁹ Although there is some

Page 34

force to appellants' response that minor-party candidates are primarily concerned with their ability to amass the resources necessary to reach the electorate rather than with their funding position relative to their major-party opponents, the record is virtually devoid of support for the claim that the $1,000 contribution limitation will have a serious effect on the initiation and scope of minor-party and independent candidacies.⁴⁰ Moreover, any at-

Page 35

tempt to exclude minor parties and independents en masse from the Act's contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election.⁴¹

          In view of these considerations, we conclude that the impact of the Act's $1,000 contribution limitation on major-party challengers and on minor-party candidates does not render the provision unconstitutional on its face.

2. The $5,000 Limitation on Contributions by Political Committees

          Section 608(b)(2) permits certain committees, designated as "political committees," to contribute up to $5,000 to any candidate with respect to any election for federal office. In order to qualify for the higher contribution ceiling, a group must have been registered with the Commission as a political committee under 2 U.S.C. § 433 (1970 ed., Supp. IV) for not less than six months, have received contributions from more than 50 persons, and, except for state political party organizations, have contributed to five or more candidates for federal office. Appellants argue that these qualifications unconstitutionally discriminate against ad hoc organizations in favor of established interest groups and impermissibly burden free association. The argument is without merit. Rather than undermining freedom of association, the basic provision enhances the opportunity of bona fide groups to participate in the election process, and the registration, contribution, and candidate conditions serve the permissible purpose of preventing indivi-

Page 36

duals from evading the applicable contribution limitations by labeling themselves committees.

3. Limitations on Volunteers' Incidental Expenses

          The Act excludes from the definition of contribution "the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee." § 591(e)(5)(A). Certain expenses incurred by persons in providing volunteer services to a candidate are exempt from the $1,000 ceiling only to the extent that they do not exceed $500. These expenses are expressly limited to (1) "the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities," § 591(e)(5)(B); (2) "the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge (at least equal to cost but) less than the normal comparable charge," § 591(e)(5)(C); and (3) "any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate," § 591(e)(5)(D).

          If, as we have held, the basic contribution limitations are constitutionally valid, then surely these provisions are a constitutionally acceptable accommodation of Congress' valid interest in encouraging citizen participation in political campaigns while continuing to guard against the corrupting potential of large financial contributions to candidates. The expenditure of resources at the candidate's direction for a fundraising event at a volunteer's residence or the provision of in-kind assistance in the form of food or beverages to be resold to raise funds or consumed by the participants in such an event provides material financial assistance to a candidate. The ulti-

Page 37

mate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution to pay for the fundraising event or the food. Similarly, travel undertaken as a volunteer at the direction of the candidate or his staff is an expense of the campaign and may properly be viewed as a contribution if the volunteer absorbs the fare. Treating these expenses as contributions when made to the candidate's campaign or at the direction of the candidate or his staff forecloses an avenue of abuse ⁴² without limiting actions voluntarily undertaken by citizens independently of a candidate's campaign.⁴³

Page 38

4. The $25,000 Limitation on Total Contributions During any Calendar Year

          In addition to the $1,000 limitation on the nonexempt contributions that an individual may make to a particular candidate for any single election, the Act contains an overall $25,000 limitation on total contributions by an individual during any calendar year. § 608(b)(3). A contribution made in connection with an election is considered, for purposes of this subsection, to be made in the year the election is held. Although the constitutionality of this provision was drawn into question by appellants, it has not been separately addressed at length by the parties. The overall $25,000 ceiling does impose an ultimate restriction upon the number of candidates and committees with which an individual may associate himself by means of financial support. But this quite modest restraint upon protected political activity serves to prevent evasion of the $1,000 contribution limitation by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to political committees likely to contribute to that candidate, or huge contributions to the candidate's political party. The limited, additional restriction on associational freedom imposed by the overall ceiling is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid.

Page 39

          The Act's expenditure ceilings impose direct and substantial restraints on the quantity of political speech. The most drastic of the limitations restricts individuals and groups, including political parties that fail to place a candidate on the ballot,⁴⁴ to an expenditure of $1,000 "relative to a clearly identified candidate during a calendar year." § 608(e)(1). Other expenditure ceilings limit spending by candidates, § 608(a), their campaigns, § 608(c), and political parties in connection with election campaigns, § 608(f). It is clear that a primary effect of these expenditure limitations is to restrict the quantity of campaign speech by individuals, groups, and candidates. The restrictions, while neutral as to the ideas expressed, limit political expression "at the core of our electoral process and of the First Amendment freedoms." Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968).

          Section 608(e)(1) provides that "(n)o person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000." ⁴⁵ The plain effect of § 608(e)(1) is to

Page 40

prohibit all individuals, who are neither candidates nor owners of institutional press facilities, and all groups, except political parties and campaign organizations, from voicing their views "relative to a clearly identified candidate" through means that entail aggregate expenditures of more than $1,000 during a calendar year. The provision, for example, would make it a federal criminal offense for a person or association to place a single one-quarter page advertisement "relative to a clearly identified candidate" in a major metropolitan newspaper.⁴⁶

          Before examining the interests advanced in support of § 608(e)(1)'s expenditure ceiling, consideration must be given to appellants' contention that the provision is unconstitutionally vague.⁴⁷ Close examination of the

Page 41

specificity of the statutory limitation is required where, as here, the legislation imposes criminal penalties in an area permeated by First Amendment interests. See Smith v. Goguen, 415 U.S. 566, 573, 94 S.Ct. 1242, 1247, 39 L.Ed.2d 605 (1974); Cramp v. Board of Public Instruction, 368 U.S. 278, 287-288, 82 S.Ct. 275, 280-281, 7 L.Ed.2d 285 (1961); Smith v. California, 361 U.S. 147, 151, 80 S.Ct. 215, 217, 4 L.Ed.2d 205 (1959).⁴⁸ The test is whether the language of § 608(e)(1) affords the "(p)recision of regulation (that) must be the touchstone in an area so closely touching our most precious freedoms." NAACP v. Button, 371 U.S., at 438, 83 S.Ct., at 340.

          The key operative language of the provision limits "any expenditure . . . relative to a clearly identified candidate." Although "expenditure," "clearly identified," and "candidate" are defined in the Act, there is no definition clarifying what expenditures are "relative to" a candidate. The use of so indefinite a phrase as "relative to" a candidate fails to clearly mark the boundary between permissible and impermissible speech, unless other portions of § 608(e)(1) make sufficiently explicit the range of

Page 42

covered by the limitation. The section prohibits "any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures . . . advocating the election or defeat of such candidate, exceeds, $1,000." (Emphasis added.) This context clearly permits, if indeed it does not require, the phrase "relative to" a candidate to be read to mean "advocating the election or defeat of" a candidate.⁴⁹

          But while such a construction of § 608(e)(1) refocuses the vagueness question, the Court of Appeals was mistaken in thinking that this construction eliminates the problem of unconstitutional vagueness altogether. 171 U.S.App.D.C., at 204, 519 F.2d, at 853. For the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.⁵⁰ In an analo-

Page 43

gous context, this Court in Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed.2d 430 (1945), observed:

          "(W)hether words intended and designed to fall short of invitation would miss that mark is a question both of intent and of effect. No speaker, in such circumstances, safely could assume that anything he might say upon the general subject would not be understood by some as an invitation. In short, the supposedly clear-cut distinction between discussion, laudation, general advocacy, and solicitation puts the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.

          "Such a distinction offers no security for free discussion. In these conditions it blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim." Id., at 535, 65 S.Ct., at 325.

          See also United States v. Auto. Workers, 352 U.S. 567, 595-596, 77 S.Ct. 529, 543-544, 1 L.Ed.2d 563 (1957) (Douglas, J., dissenting); Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting).

          The constitutional deficiencies described in Thomas v. Collins can be avoided only by reading § 608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate, much as the definition of "clearly identified" in § 608(e)(2) requires that an explicit and unambiguous reference to the candidate appear as part of the communication. ⁵¹ This

Page 44

is the reading of the provision suggested by the non-governmental appellees in arguing that "(f)unds spent to propagate one's views on issues without expressly calling for a candidate's election or defeat are thus not covered." We agree that in order to preserve the provision against invalidation on vagueness grounds, § 608(e)(1) must be construed to apply only to expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.⁵²

          We turn then to the basic First Amendment question whether § 608(e)(1), even as thus narrowly and explicitly construed, impermissibly burdens the constitutional right of free expression. The Court of Appeals summarily held the provision constitutionally valid on the ground that "section 608(e) is a loophole-closing provision only" that is necessary to prevent circumvention of the contribution limitations. 171 U.S.App.D.C., at 204, 519 F.2d, at 853. We cannot agree.

          The discussion in Part I-A, supra, explains why the Act's expenditure limitations impose far greater restraints on the freedom of speech and association than do its contribution limitations. The markedly greater burden on basic freedoms caused by § 608(e)(1) thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of § 608(e)(1) turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limita-

Page 45

tions on core First Amendment rights of political expression.

          We find that the governmental interest in preventing corruption and the appearance of corruption is inadequate to justify § 608(e)(1)'s ceiling on independent expenditures. First, assuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions, § 608(e)(1) does not provide an answer that sufficiently relates to the elimination of those dangers. Unlike the contribution limitations' total ban on the giving of large amounts of money to candidates, § 608(e)(1) prevents only some large expenditures. So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views. The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation's effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or office-holder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate's campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office. Cf. Mills v. Alabama, 384 U.S., at 220, 86 S.Ct., at 1437.

          Second, quite apart from the shortcomings of § 608(e)

Page 46

(1) in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The parties defending § 608(e)(1) contend that it is necessary to prevent would-be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate's campaign activities. They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act.⁵³ Section 608(b)'s

Page 47

contribution ceilings rather than § 608(e)(1)'s independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, § 608(e)(1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. Rather than preventing circumvention of the contribution limitations, § 608(e)(1) severely restricts all independent advocacy despite its substantially diminished potential for abuse.

          While the independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming

Page 48

the reality or appearance of corruption in the electoral process, it heavily burdens core First Amendment expression. For the First Amendment right to " 'speak one's mind . . . on all public institutions' " includes the right to engage in " 'vigorous advocacy' no less than 'abstract discussion.' " New York Times Co. v. Sullivan, 376 U.S., at 269, 84 S.Ct., at 721, quoting Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 197, 86 L.Ed. 192 (1941), and NAACP v. Button, 371 U.S., at 429, 83 S.Ct., at 335. Advocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.⁵⁴

            It is argued, however, that the ancillary governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections serves to justify the limitation on express advocacy of the election or defeat of candidates imposed by § 608(e)(1)'s expenditure ceiling. But the concept that government may restrict the speech of some elements of our society in

Page 49

order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed "to secure 'the widest possible dissemination of information from diverse and antagonistic sources,' " and " 'to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' " New York Times Co. v. Sullivan, supra, 376 U.S., at 266, 269, 84 S.Ct., at 718, quoting Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945), and Roth v. United States, 354 U.S., at 484, 77 S.Ct., at 1308. The First Amendment's protection against governmental abridgment of free expression cannot properly be made to depend on a person's financial ability to engage in public discussion. Cf. Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, 139, 81 S.Ct. 523, 530, 5 L.Ed.2d 464 (1961).⁵⁵

Page 50

          The Court's decisions in Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966), and Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), held that legislative restrictions on advocacy of the election or defeat of political candidates are wholly at odds with the guarantees of the First Amendment. In Mills, the Court addressed the question whether "a State, consistently with the United States Constitution, can make it a crime for the editor of a daily newspaper to write and publish an editorial on election day urging people to vote a certain way on issues submitted to them." 384 U.S., at 215, 86 S.Ct., at 1435 (emphasis in original). We held that "no test of reasonableness can save (such) a state law from invalidation as a violation of the First Amendment." Id., at 220, 86 S.Ct., at 1437. Yet the prohibition of election day-editorials invalidated in Mills is clearly a lesser intrusion on constitutional freedom than a $1,000 limitation on the amount of money any person or association can spend during an entire election year in advocating the election or defeat of a candidate for public office. More recently in Tornillo, the Court held that Florida could not constitutionally require a news-

Page 51

paper to make space available for a political candidate to reply to its criticism. Yet under the Florida statute, every newspaper was free to criticize any candidate as much as it pleased so long as it undertook the modest burden of printing his reply. See 418 U.S., at 256-257, 94 S.Ct., at 2838-2839. The legislative restraint involved in Tornillo thus also pales in comparison to the limitations imposed by § 608(e) (1).⁵⁶

          For the reasons stated, we conclude that § 608(e)(1)'s independent expenditure limitation is unconstitutional under the First Amendment.

2. Limitation on Expenditures by Candidates from Personal or Family Resources

          The Act also sets limits on expenditures by a candidate "from his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year." § 608(a)(1). These ceilings vary from $50,000 for Presidential or Vice Presidential candidates to $35,000 for senatorial candidates, and $25,000 for most candidates for the House of Representatives.⁵⁷

Page 52

          [41] The ceiling on personal expenditures by candidates on their own behalf, like the limitations on independent expenditures contained in § 608(e)(1), imposes a substantial restraint on the ability of persons to engage in protected First Amendment expression.⁵⁸ The candidate, no less than any other person, has a First Amendment right to engage in the discussion of public issues and vigorously and tirelessly to advocate his own election and the election of other candidates. Indeed, it is of particular importance that candidates have the un-

Page 53

fettered opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day. Mr. Justice Brandeis' observation that in our country "public discussion is a political duty," Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (concurring opinion), applies with special force to candidates for public office. Section 608(a)'s ceiling on personal expenditures by a candidate in furtherance of his own candidacy thus clearly and directly interferes with constitutionally protected freedoms.

          The primary governmental interest served by the Act the prevention of actual and apparent corruption of the political process does not support the limitation on the candidate's expenditure of his own personal funds. As the Court of Appeals concluded: "Manifestly, the core problem of avoiding undisclosed and undue influence on candidates from outside interests has lesser application when the monies involved come from the candidate himself or from his immediate family." 171 U.S.App.D.C., at 206, 519 F.2d, at 855. Indeed, the use of personal funds reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act's contribution limitations are directed.⁵⁹

Page 54

          [44,45] The ancillary interest in equalizing the relative financial resources of candidates competing for elective office, therefore, provides the sole relevant rationale for § 608(a)'s expenditure ceiling. That interest is clearly not sufficient to justify the provision's infringement of fundamental First Amendment rights. First, the limitation may fail to promote financial equality among candidates. A candidate who spends less of his personal resources on his campaign may nonetheless outspend his rival as a result of more successful fundraising efforts. Indeed, a candidate's personal wealth may impede his efforts to persuade others that he needs their financial contributions or volunteer efforts to conduct an effective campaign. Second, and more fundamentally, the First Amendment simply cannot tolerate § 608(a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy. We therefore hold that § 608(a)'s restriction on a candidate's personal expenditures is unconstitutional.

3. Limitations on Campaign Expenditures

          Section 608(c) places limitations on overall campaign expenditures by candidates seeking nomination for election and election to federal office. ⁶⁰ Presidential candidates may spend $10,000,000 in seeking nomination for office and an additional $20,000,000 in the general election campaign. §§ 608(c)(1)(A), (B).⁶¹

Page 55

The ceiling on senatorial campaigns is pegged to the size of the voting-age population of the State with minimum dollar amounts applicable to campaigns in States with small populations. In senatorial primary elections, the limit is the greater of eight cents multiplied by the voting-age population or $100,000, and in the general election the limit is increased to 12 cents multiplied by the voting-age population or $150,000. §§ 608(c)(1)(C), (D). The Act imposes blanket $70,000 limitations on both primary campaigns and general election campaigns for the House of Representatives with the exception that the senatorial ceiling applies to campaigns in States entitled to only one Representative. §§ 608(c)(1)(C)-(E). These ceilings are to be adjusted upwards at the beginning of each calendar year by the average percentage rise in the consumer price index for the 12 preceding months. § 608(d).⁶²

          No governmental interest that has been suggested is sufficient to justify the restriction on the quantity of political expression imposed by § 608(c)'s campaign expenditure limitations. The major evil associated with rapidly increasing campaign expenditures is the danger of candidate dependence on large contributions. The interest in alleviating the corrupting influence of large contributions is served by the Act's contribution limitations and disclosure provisions rather than by § 608(c)'s campaign expenditure ceilings. The Court of Appeals' assertion that the expenditure restrictions are necessary to reduce the incentive to circumvent direct contribution limits is not persuasive. See 171 U.S.

Page 56

App.D.C., at 210, 519 F.2d, at 859. There is no indication that the substantial criminal penalties for violating the contribution ceilings combined with the political repercussion of such violations will be insufficient to police the contribution provisions. Extensive reporting, auditing, and disclosure requirements applicable to both contributions and expenditures by political campaigns are designed to facilitate the detection of illegal contributions. Moreover, as the Court of Appeals noted, the Act permits an officeholder or successful candidate to retain contributions in excess of the expenditure ceiling and to use these funds for "any other lawful purpose." 2 U.S.C. § 439a (1970 ed., Supp. IV). This provision undercuts whatever marginal role the expenditure limitations might otherwise play in enforcing the contribution ceilings.

          The interest in equalizing the financial resources of candidates competing for federal office is no more convincing a justification for restricting the scope of federal election campaigns. Given the limitation on the size of outside contributions, the financial resources available to a candidate's campaign, like the number of volunteers recruited, will normally vary with the size and intensity of the candidate's support.⁶³ There is nothing invidious, improper, or unhealthy in permitting such funds to be spent to carry the candidate's message to the electorate.⁶⁴ Moreover, the equalization of permissible campaign ex-

Page 57

penditures might serve not to equalize the opportunities of all candidates, but to handicap a candidate who lacked substantial name recognition or exposure of his views before the start of the campaign.

          The campaign expenditure ceilings appear to be designed primarily to serve the governmental interests in reducing the allegedly skyrocketing costs of political campaigns. Appellees and the Court of Appeals stressed statistics indicating that spending for federal election campaigns increased almost 300% Between 1952 and 1972 in comparison with a 57.6% Rise in the consumer price index during the same period. Appellants respond that during these years the rise in campaign spending lagged behind the percentage increase in total expenditures for commercial advertising and the size of the gross national product. In any event, the mere growth in the cost of federal election campaigns in and of itself provides no basis for governmental restrictions on the quantity of campaign spending and the resulting limitation on the scope of federal campaigns. The First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise. In the free society ordained by our Constitution it is not the government, but the people individually as citizens and candidates and collectively as associations and political committees who must retain control over the quantity and range of debate on public issues in a political campaign. ⁶⁵

Page 58

          [52] For these reasons we hold that § 608(c) is constitutionally invalid.⁶⁶

          In sum, the provisions of the Act that impose a $1,000 limitation on contributions to a single candidate, § 608(b)(1), a $5,000 limitation on contributions by a political committee to a single candidate, § 608(b)(2), and a $25,000 limitation on total contributions by an individual during any calendar year, § 608(b)(3), are constitutionally valid. These limitations, along with the disclosure provisions, constitute the Act's primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions. The contribution ceilings thus serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion. By contrast, the First Amendment requires the invalidation of the Act's independent expenditure ceiling, § 608(e)(1), its limitation on a candidate's expenditures from his own personal funds, § 608(a), and its ceilings on overall campaign expenditures, § 608(c). These provisions place substantial and direct restrictions

Page 59

on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.⁶⁷

Page 60

                    II. REPORTING AND DISCLOSURE REQUIREMENTS

          Unlike the limitations on contributions and expenditures imposed by 18 U.S.C. § 608 (1970 ed., Supp. IV), the disclosure requirements of the Act, 2 U.S.C. § 431 et seq. (1970 ed., Supp. IV),⁶⁸ are not challenged by appellants as per se unconstitutional restrictions on the exercise of First Amendment freedoms of speech and association.⁶⁹ Indeed, appellants argue that "narrowly drawn disclosure requirements are the proper solution to virtually all of the evils Congress sought to remedy." Brief for Appellants 171. The particular requirements

Page 61

embodied in the Act are attacked as overbroad both in their application to minor-party and independent candidates and in their extension to contributions as small as $11 or $101. Appellants also challenge the provision for disclosure by those who make independent contributions and expenditures, § 434(e). The Court of Appeals found no constitutional infirmities in the provisions challenged here.⁷⁰ We affirm the determination on overbreadth and hold that § 434(e), if narrowly construed, also is within constitutional bounds.

          The first federal disclosure law was enacted in 1910. Act of June 25, 1910, c. 392, 36 Stat. 822. It required political committees, defined as national committees and national congressional campaign committees of parties, and organizations operating to influence congressional elections in two or more States, to disclose names of all contributors of $100 or more; identification of recipients of expenditures of $10 or more was also required. §§ 1, 5-6, 36 Stat. 822-824. Annual expenditures of $50 or more "for the purpose of influencing or controlling, in two or more States, the result of" a congressional election had to be reported independently if they were not made through a political committee. § 7, 36 Stat. 824. In 1911 the Act was revised to include prenomination transactions such as those involved in conventions and primary campaigns. Act of Aug. 19, 1911, § 2, 37 Stat. 26. See United States v. Auto Workers, 352 U.S., at 575-576, 77 S.Ct., at 533-534.

          Disclosure requirements were broadened in the Federal Corrupt Practices Act of 1925 (Title III of the Act of Feb. 28, 1925), 43 Stat. 1070. That Act required political committees, defined as organizations that accept contributions or make expenditures "for the purpose of

Page 62

influencing or attempting to influence" the Presidential or Vice Presidential elections (a) in two or more States or (b) as a subsidiary of a national committee, § 302(c), 43 Stat. 1070, to report total contributions and expenditures, including the names and addresses of contributors of $100 or more and recipients of $10 or more in a calendar year. § 305(a), 43 Stat. 1071. The Act was upheld against a challenge that it infringed upon the prerogatives of the States in Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934). The Court held that it was within the power of Congress "to pass appropriate legislation to safeguard (a Presidential) election from the improper use of money to influence the result." Id., at 545, 54 S.Ct., at 290. Although the disclosure requirements were widely circumvented,⁷¹ no further attempts were made to tighten them until 1960, when the Senate passed a bill that would have closed some existing loopholes. S. 2436, 106 Cong.Rec. 1193. The attempt aborted because no similar effort was made in the House.

          The Act presently under review replaced all prior disclosure laws. Its primary disclosure provisions impose reporting obligations on "political committees" and candidates. "Political committee" is defined in § 431(d) as a group of persons that receives"contributions" or makes "expenditures" of over $1,000 in a calendar year. "Contributions" and "expenditures" are defined in lengthy parallel provisions similar to those in Title 18, discussed

Page 63

above.⁷² Both definitions focus on the use of money or other objects of value "for the purpose of . . . influencing" the nomination or election of any person to federal office. § 431(e)(1), (f)(1).

          Each political committee is required to register with the Commission, § 433, and to keep detailed records of both contributions and expenditures, § 432(c), (d). These records must include the name and address of everyone making a contribution in excess of $10, along with the date and amount of the contribution. If a person's contributions aggregate more than $100, his occupation and principal place of business are also to be included. § 432(c) (2). These files are subject to periodic audits and field investigations by the Commission. § 438(a)(8).

          Each committee and each candidate also is required to file quarterly reports. § 434(a). The reports are to contain detailed financial information, including the full name, mailing address, occupation, and principal place of business of each person who has contributed over $100 in a calendar year, as well as the amount and date of the contributions. § 434(b). They are to be made available by the Commission "for public inspection and copying." § 438(a)(4). Every candidate for federal office is required to designate a "principal campaign committee," which is to receive reports of contributions and expenditures made on the candidate's behalf from other political committees and to compile and file these reports, together with its own statements, with the Commission. § 432(f).

          Every individual or group, other than a political committee or candidate, who makes "contributions" or "expenditures" of over $100 in a calendar year "other than

Page 64

by contribution to a political committee or candidate" is required to file a statement with the Commission. § 434(e). Any violation of these record-keeping and reporting provisions is punishable by a fine of not more than $1,000 or a prison term of not more than a year, or both. § 441(a).

          Unlike the overall limitations on contributions and expenditures, the disclosure requirements impose no ceiling on campaign-related activities. But we have repeatedly found that compelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment. E. g., Gibson v. Florida Legislative Comm., 372 U.S. 539, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

          We long have recognized that significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest. Since NAACP v. Alabama we have required that the subordinating interests of the State must survive exacting scrutiny.⁷³ We also have insisted that there be a "relevant correlation" ⁷⁴ or "substantial relation" ⁷⁵ between the governmental interest and the information required to be disclosed. See Pollard v. Roberts, 283 F.Supp. 248, 257 (ED Ark.) (three-judge court), aff'd, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968)

Page 65

(per curiam). This type of scrutiny is necessary even if any deterrent effect on the exercise of First Amendment rights arises, not through direct government action, but indirectly as an unintended but inevitable result of the government's conduct in requiring disclosure. NAACP v. Alabama, supra, 357 U.S., at 461, 78 S.Ct., at 1171. Cf. Kusper v. Pontikes, 414 U.S., at 57-58, 94 S.Ct., at 307-308.

          Appellees argue that the disclosure requirements of the Act differ significantly from those at issue in NAACP v. Alabama and its progeny because the Act only requires disclosure of the names of contributors and does not compel political organizations to submit the names of their members.⁷⁶

          As we have seen, group association is protected because it enhances "(e) ffective advocacy." NAACP v. Alabama, supra, 357 U.S., at 460, 78 S.Ct., at 1170. The right to join together "for the advancement of beliefs and ideas," ibid., is diluted if it does not include the right to pool money through contributions, for funds are often essential if "advocacy" is

Page 66

to be truly or optimally "effective." Moreover, the invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for "(f)inancial transactions can reveal much about a person's activities, associations, and beliefs." California Bankers Ass'n v. Shultz, 416 U.S. 21, 78-79, 94 S.Ct. 1494, 1526, 39 L.Ed.2d 812 (1974) (Powell, J., concurring). Our past decisions have not drawn fine lines between contributors and members but have treated them interchangeably. In Bates, for example, we applied the principles of NAACP v. Alabama and reversed convictions for failure to comply with a city ordinance that required the disclosure of "dues, assessments, and contributions paid, by whom and when paid." 361 U.S., at 518, 80 S.Ct., at 414. See also United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953) (setting aside a contempt conviction of an organization official who refused to disclose names of those who made bulk purchases of books sold by the organization).

          The strict test established by NAACP v. Alabama is necessary because compelled disclosure has the potential for substantially infringing the exercise of First Amendment rights. But we have acknowledged that there are governmental interests sufficiently important to outweigh the possibility of infringement, particularly when the "free functioning of our national institutions" is involved. Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 97, 81 S.Ct. 1357, 1411, 6 L.Ed.2d 625 (1961).

          The governmental interests sought to be vindicated by the disclosure requirements are of this magnitude. They fall into three categories. First, disclosure provides the electorate with information "as to where political campaign money comes from and how it is spent by the candidate" ⁷⁷ in order to aid the voters in evaluating those

Page 67

who seek federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate's financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office.

          Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.⁷⁸ This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate's most generous supporters is better able to detect any post-election special favors that may be given in return. ⁷⁹ And, as we recognized in Burroughs v. United States, 290 U.S., at 548, 54 S.Ct., at 291, Congress could reasonably conclude that full disclosure during an election campaign tends "to prevent the corrupt use of money to affect elections." In enacting these requirements it may have been mindful of Mr. Justice Brandeis' advice:

          "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." ⁸⁰

          Third, and not least significant, recordkeeping, report-

Page 68

ing, and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contribution limitations described above.

          The disclosure requirements, as a general matter, directly serve substantial governmental interests. In determining whether these interests are sufficient to justify the requirements we must look to the extent of the burden that they place on individual rights.

          It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute. In some instances, disclosure may even expose contributors to harassment or retaliation. These are not insignificant burdens on individual rights, and they must be weighed carefully against the interests which Congress has sought to promote by this legislation. In this process, we note and agree with appellants' concession ⁸¹ that disclosure requirements certainly in most applications appear to be the least restrictive means of curbing the evils of campaign ignorance and corruption that Congress found to exist.⁸² Appellants argue, however, that the balance tips against disclosure when it is required of contributors to certain parties and candidates. We turn now to this contention.

            B. Application to Minor Parties and Independents

          Appellants contend that the Act's requirements are overbroad insofar as they apply to contributions to minor

Page 69

parties and independent candidates because the governmental interest in this information is minimal and the danger of significant infringement on First Amendment rights is greatly increased.

1. Requisite Factual Showing

          In NAACP v.Alabama the organization had "made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members (had) exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility," 357 U.S., at 462, 78 S.Ct., at 1172, and the State was unable to show that the disclosure it sought had a "substantial bearing" on the issues it sought to clarify, id., at 464, 78 S.Ct. at 1172. Under those circumstances, the Court held that "whatever interest the State may have in (disclosure) has not been shown to be sufficient to overcome petitioner's constitutional objections." Id., at 465, 78 S.Ct., at 1173.

          The Court of Appeals rejected appellants' suggestion that this case fits into the NAACP v. Alabama mold. It concluded that substantial governmental interests in "informing the electorate and preventing the corruption of the political process" were furthered by requiring disclosure of minor parties and independent candidates, 171 U.S.App.D.C., at 218, 519 F.2d, at 867, and therefore found no "tenable rationale for assuming that the public interest in minority party disclosure of contributions above a reasonable cut-off point is uniformly outweighed by potential contributors' associational rights," id., at 219, 519 F.2d, at 868. The court left open the question of the application of the disclosure requirements to candidates (and parties) who could demonstrate injury of the sort at stake in NAACP v. Alabama. No record of harassment on a similar scale was found in this case.⁸³ We agree with

Page 70

the Court of Appeals' conclusion that NAACP v. Alabama is inapposite where, as here, any serious infringement on First Amendment rights brought about by the compelled disclosure of contributors is highly speculative.

          It is true that the governmental interest in disclosure is diminished when the contribution in question is made to a minor party with little chance of winning an election. As minor parties usually represent definite and publicized viewpoints, there may be less need to inform the voters of the interests that specific candidates represent. Major parties encompass candidates of greater diversity. In many situations the label "Republican" or "Democrat" tells a voter little. The candidate who bears it may be supported by funds from the far right, the far left, or any place in between on the political spectrum. It is less likely that a candidate of, say, the Socialist Labor Party will represent interests that cannot be discerned from the party's ideological position.

          The Government's interest in deterring the "buying" of elections and the undue influence of large contributors on officeholders also may be reduced where contributions to a minor party or an independent candidate are concerned, for it is less likely that the candidate will be victorious. But a minor party sometimes can play a significant role in an election. Even when a minor-party candidate has little or no chance of winning, he may be encouraged by major-party interests in order to divert votes from other major-party contenders. ⁸⁴

Page 71

          We are not unmindful that the damage done by disclosure to the associational interests of the minor parties and their members and to supporters of independents could be significant. These movements are less likely to have a sound financial base and thus are more vulnerable to falloffs in contributions. In some instances fears of reprisal may deter contributions to the point where the movement cannot survive. The public interest also suffers if that result comes to pass, for there is a consequent reduction in the free circulation of ideas both within ⁸⁵ and without ⁸⁶ the political arena.

          There could well be a case, similar to those before the Court in NAACP v. Alabama and Bates, where the threat to the exercise of First Amendment rights is so serious and the state interest furthered by disclosure so insubstantial that the Act's requirements cannot be constitutionally applied.⁸⁷ But no appellant in this case has tendered record evidence of the sort proffered in NAACP v. Alabama. Instead, appellants primarily rely on "the clearly articulated fears of individuals, well experienced in the political process." Brief for Appellants 173. At

Page 72

best they offer the testimony of several minor-party officials that one or two persons refused to make contributions because of the possibility of disclosure.⁸⁸ On this record, the substantial public interest in disclosure identified by the legislative history of this Act outweighs the harm generally alleged.

          Appellants agree that "the record here does not reflect the kind of focused and insistent harassment of contributors and members that existed in the NAACP cases." Ibid. They argue, however, that a blanket exemption for minor parties is necessary lest irreparable injury be done before the required evidence can be gathered.

          Those parties that would be sufficiently "minor" to be exempted from the requirements of § 434 could be defined, appellants suggest, along the lines used for public-financing purposes, see Part III-A, infra, as those who received less than 25% Of the vote in past elections. Appellants do not argue that this line is constitutionally required. They suggest as an alternative defining "minor parties" as those that do not qualify for automatic ballot access under state law. Presumably, other criteria, such as current political strength (measured by polls or petition), age, or degree of organization, could also be used.⁸⁹

          The difficulty with these suggestions is that they reflect only a party's past or present political strength and

Page 73

that is only one of the factors that must be considered. Some of the criteria are not precisely indicative of even that factor. Age,⁹⁰ or past political success, for instance, may typically be associated with parties that have a high probability of success. But not all long-established parties are winners some are consistent losers and a new party may garner a great deal of support if it can associate itself with an issue that has captured the public's imagination. None of the criteria suggested is precisely related to the other critical factor that must be considered, the possibility that disclosure will impinge upon protected associational activity.

          An opinion dissenting in part from the Court of Appeals' decision concedes that no one line is "constitutionally required."⁹¹ It argues, however, that a flat exemption for minor parties must be carved out, even along arbitrary lines, if groups that would suffer impermissibly from disclosure are to be given any real protection. An approach that requires minor parties to submit evidence that the disclosure requirements cannot constitutionally be applied to them offers only an illusory safeguard, the argument goes, because the "evils" of "chill and harassment . . . are largely incapable of formal proof." ⁹² This dissent expressed its concern that a minor party, particularly a

Page 74

new party, may never be able to prove a substantial threat of harassment, however real that threat may be, because it would be required to come forward with witnesses who are too fearful to contribute but not too fearful to testify about their fear. A strict requirement that chill and harassment be directly attributable to the specific disclosure from which the exemption is sought would make the task even more difficult.

          We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties. The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient. New parties that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views.

          Where it exists the type of chill and harassment identified in NAACP v. Alabama can be shown. We cannot assume that courts will be insensitive to similar showings when made in future cases. We therefore conclude that a blanket exemption is not required.

          Section 434(e) requires "(e)very person (other than a political committee or candidate) who makes contribu-

Page 75

tions or expenditures" aggregating over $100 in a calendar year "other than by contribution to a political committee or candidate" to file a statement with the Commission.⁹³ Unlike the other disclosure provisions, this section does not seek the contribution list of any association. Instead, it requires direct disclosure of what an individual or group contributes or spends.

          In considering this provision we must apply the same strict standard of scrutiny, for the right of associational privacy developed in NAACP v. Alabama derives from the rights of the organization's members to advocate their personal points of view in the most effective way. 357 U.S., at 458, 460, 78 S.Ct., at 1169-1170. See also NAACP v. Button, 371 U.S., at 429-431, 83 S.Ct., at 335-337; Sweezy v. New Hampshire, 354 U.S., at 250, 77 S.Ct., at 1211.

          Appellants attack § 434(e) as a direct intrusion on privacy of belief, in violation of Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), and as imposing "very real, practical burdens . . . certain to deter individuals from making expenditures for their independent political speech" analogous to those held to be impermissible in Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945).

1. The Role of § 434(e)

          The Court of Appeals upheld § 434(e) as necessary to enforce the independent-expenditure ceiling imposed by 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV). It said:

          "If . . . Congress has both the authority and a compelling interest to regulate independent expenditures under section 608(e), surely it can require that there be disclosure to prevent misuse of the spending channel." 171 U.S.App.D.C., at 220, 519 F.2d, at 869.

          We have found that § 608(e)(1) unconstitutionally in fringes

Page 76

upon First Amendment rights.⁹⁴ If the sole function of § 434(e) were to aid in the enforcement of that provision, it would no longer serve any governmental purpose.

          But the two provisions are not so intimately tied. The legislative history on the function of § 434(e) is bare, but it was clearly intended to stand independently of § 608(e)(1). It was enacted with the general disclosure provisions in 1971 as part of the original Act,⁹⁵ while § 608(e)(1) was part of the 1974 amendments.⁹⁶ Like the other disclosure provisions, § 434(e) could play a role in the enforcement of the expanded contribution and expenditure limitations included in the 1974 amendments, but it also has independent functions. Section 434(e) is part of Congress' effort to achieve "total disclosure" by reaching "every kind of political activity" ⁹⁷ in order to insure that the voters are fully informed and to achieve through publicity the maximum deterrence to corruption and undue influence possible. The provision is responsive to the legitimate fear that efforts would be made, as they had been in the past,⁹⁸ to avoid the disclosure requirements by routing financial support of candidates through avenues not explicitly covered by the general provisions of the Act.

          In its effort to be all-inclusive, however, the provision raises serious problems of vagueness, particularly treacherous where, as here, the violation of its terms carries criminal penalties ⁹⁹ and fear of incurring these sanctions

Page 77

may deter those who seek to exercise protected First Amendment rights.

          Section 434(e) applies to "(e)very person . . . who makes contributions or expenditures." "Contributions" and "expenditures" are defined in parallel provisions in terms of the use of money or other valuable assets "for the purpose of . . . influencing" the nomination or election of candidates for federal office.¹⁰⁰ It is the ambiguity of this phrase that poses constitutional problems.

          Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for "no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). See also Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Where First Amendment rights are involved, an even "greater degree of specificity" is required. Smith v. Goguen, 415 U.S., at 573, 94 S.Ct., at 1247. See Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951).

          There is no legislative history to guide us in determining the scope of the critical phrase "for the purpose of . . . influencing." It appears to have been adopted without comment from earlier disclosure Acts.¹⁰¹ Congress "has voiced its wishes in (most) muted strains," leaving us to draw upon "those common-sense assumptions that must be made in determining direction without a compass." Rosado v. Wyman, 397 U.S. 397, 412, 90 S.Ct. 1207, 1218, 25 L.Ed.2d 442 (1970). Where the constitutional requirement of definiteness is at stake, we have the further obligation to construe the statute,

Page 78

if that can be done consistent with the legislature's purpose, to avoid the shoals of vagueness. United States v. Harriss, supra, 347 U.S., at 618, 74 S.Ct., at 812; United States v. Rumely, 345 U.S., at 45, 73 S.Ct., at 545.

          In enacting the legislation under review Congress addressed broadly the problem of political campaign financing. It wished to promote full disclosure of campaign-oriented spending to insure both the reality and the appearance of the purity and openness of the federal election process.¹⁰² Our task is to construe "for the purpose of . . . influencing," incorporated in § 434(e) through the definitions of "contributions" and "expenditures," in a manner that precisely furthers this goal.

          In Part I we discussed what constituted a "contribution" for purposes of the contribution limitations set forth in 18 U.S.C. § 608(b) (1970 ed., Supp. IV). ¹⁰³ We construed that term to include not only contributions made directly or indirectly to a candidate, political party, or campaign committee, and contributions made to other organizations or individuals but earmarked for political purposes, but also all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate. The definition of "contribution" in § 431(e) for disclosure purposes parallels the definition in Title 18 almost word for word, and we construe the former provision as we have the latter. So defined, "contributions" have a sufficiently close relationship to the goals of the Act, for they are connected with a candidate or his campaign.

          When we attempt to define "expenditure" in a similarly narrow way we encounter line-drawing problems

Page 79

of the sort we faced in 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV). Although the phrase, "for the purpose of . . . influencing" an election or nomination, differs from the language used in § 608(e)(1), it shares the same potential for encompassing both issue discussion and advocacy of a political result.¹⁰⁴ The general requirement that "political committees" and candidates disclose their expenditures could raise similar vagueness problems, for "political committee" is defined only in terms of amount of annual "contributions" and "expenditures," ¹⁰⁵ and could be interpreted to reach groups engaged purely in issue discussion. The lower courts have construed the words "political committee" more narrowly.¹⁰⁶ To fulfill the purposes of the Act they need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate. Expenditures of candidates and of "political committees" so construed can be assumed to fall within the core area sought to be addressed by Congress. They are, by definition, campaign related.

          But when the maker of the expenditure is not within these categories when it is an individual other than a candidate or a group other than a "political committee" ¹⁰⁷5

Page 80

—the relation of the information sought to the purposes of the Act may be too remote. To insure that the reach of § 434(e) is not impermissibly broad, we construe "expenditure" for purposes of that section in the same way we construed the terms of § 608(e) to reach only funds used for communications that expressly advocate ¹⁰⁸ the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate.

          In summary, § 434(e), as construed, imposes independent reporting requirements on individuals and groups that are not candidates or political committees only in the following circumstances: (1) when they make contributions earmarked for political purposes or authorized or requested by a candidate or his agent, to some person other than a candidate or political committee, and (2) when they make expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate.

          Unlike 18 U.S.C. § 608(e)(1) (1970 ed., Supp. IV), § 434(e), as construed, bears a sufficient relationship to a substantial governmental interest. As narrowed, § 434(e), like § 608(e)(1), does not reach all partisan discussion for it only requires disclosure of those expenditures that expressly advocate a particular election result. This might have been fatal if the only purpose of § 434(e)

Page 81

were to stem corruption or its appearance by closing a loophole in the general disclosure requirements. But the disclosure provisions, including § 434(e), serve another, informational interest, and even as construed § 434(e) increases the fund of information concerning those who support the candidates. It goes beyond the general disclosure requirements to shed the light of publicity on spending that is unambiguously campaign related but would not otherwise be reported because it takes the form of independent expenditures or of contributions to an individual or group not itself required to report the names of its contributors. By the same token, it is not fatal that § 434(e) encompasses purely independent expenditures uncoordinated with a particular candidate or his agent. The corruption potential of these expenditures may be significantly different, but the informational interest can be as strong as it is in coordinated spending, for disclosure helps voters to define more of the candidates' constituencies.

          Section 434(e), as we have construed it, does not contain the infirmities of the provisions before the Court in Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960), and Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945). The ordinance found wanting in Talley forbade all distribution of handbills that did not contain the name of the printer, author, or manufacturer, and the name of the distributor. The city urged that the ordinance was aimed at identifying those responsible for fraud, false advertising, and libel, but the Court found that it was "in no manner so limited." 362 U.S., at 64, 80 S.Ct., at 538. Here, as we have seen, the disclosure requirement is narrowly limited to those situations where the information sought has a substantial connection with the governmental interests sought to be advanced. Thomas held unconstitutional a prior restraint in the form of a registration requirement for labor organizers.

Page 82

The Court found the State's interest insufficient to justify the restrictive effect of the statute. The burden imposed by § 434(e) is no prior restraint, but a reasonable and minimally restrictive method of furthering First Amendment values by opening the basic processes of our federal election system to public view.¹⁰⁹

          Appellants' third contention, based on alleged overbreadth, is that the monetary thresholds in the record-keeping and reporting provisions lack a substantial nexus with the claimed governmental interests, for the amounts involved are too low even to attract the attention of the candidate, much less have a corrupting influence.

          The provisions contain two thresholds. Records are to be kept by political committees of the names and addresses of those who make contributions in excess of $10, § 432(c)(2), and these records are subject to Commission audit, § 438(a)(8). If a person's contributions to a committee or candidate aggregate more than $100, his name and address, as well as his occupation and principal place of business, are to be included in reports filed by committees and candidates with the Commission, § 434(b)(2), and made available for public inspection, § 438(a)(4).

          The Court of Appeals rejected appellants' contention that these thresholds are unconstitutional. It found the challenge on First Amendment grounds to the $10 threshold to be premature, for it could "discern no basis in the statute for authorizing disclosure outside the Com-

Page 83

mission . . ., and hence no substantial 'inhibitory effect' operating upon" appellants. 171 U.S.App.D.C., at 216, 519 F.2d, at 865. The $100 threshold was found to be within the "reasonable latitude" given the legislature "as to where to draw the line." Ibid. We agree.

          The $10 and $100 thresholds are indeed low. Contributors of relatively small amounts are likely to be especially sensitive to recording or disclosure of their political preferences. These strict requirements may well discourage participation by some citizens in the political process, a result that Congress hardly could have intended. Indeed, there is little in the legislative history to indicate that Congress focused carefully on the appropriate level at which to require recording and disclosure. Rather, it seems merely to have adopted the thresholds existing in similar disclosure laws since 1910.¹¹⁰ But we cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional discretion. We cannot say, on this bare record, that the limits designated are wholly without rationality.¹¹¹

          We are mindful that disclosure serves informational functions, as well as the prevention of corruption and the enforcement of the contribution limitations. Congress is not required to set a threshold that is tailored only to the latter goals. In addition, the enforcement

Page 84

goal can never be well served if the threshold is so high that disclosure becomes equivalent to admitting violation of the contribution limitations.

          The $10 recordkeeping threshold, in a somewhat similar fashion, facilitates the enforcement of the disclosure provisions by making it relatively difficult to aggregate secret contributions in amounts that surpass the $100 limit. We agree with the Court of Appeals that there is no warrant for assuming that public disclosure of contributions between $10 and $100 is authorized by the Act. Accordingly, we do not reach the question whether information concerning gifts of this size can be made available to the public without trespassing impermissibly on First Amendment rights. Cf. California Bankers Ass'n v. Shultz, 416 U.S., at 56-57, 94 S.Ct., at 1515.¹¹²

          In summary, we find no constitutional infirmities in the recordkeeping reporting, and disclosure provisions of the Act.¹¹³

Page 85

    III. PUBLIC FINANCING OF PRESIDENTIAL ELECTION CAMPAIGNS

          A series of statutes ¹¹⁴ for the public financing of Presidential election campaigns produced the scheme now found in § 6096 and Subtitle H of the Internal Revenue

Page 86

Code of 1954, 26 U.S.C. §§ 6096, 9001-9012, 9031-9042 (1970 ed., Supp. IV).¹¹⁵ Both the District Court, 401 F.Supp. 1235, and the Court of Appeals, 171 U.S.App.D.C., at 229-238, 519 F.2d, at 878-887, sustained Subtitle H against a constitutional attack.¹¹⁶ Appellants renew their challenge here, contending that the legislation violates the First and Fifth Amendments. We find no merit in their claims and affirm.

          Section 9006 establishes a Presidential Election Campaign Fund (Fund), financed from general revenues in the aggregate amount designated by individual taxpayers, under § 6096, who on their income tax returns may authorize payment to the Fund of one dollar of their tax liability in the case of an individual return or two dollars in the case of a joint return. The Fund consists of three separate accounts to finance (1) party nominating conventions, § 9008(a), (2) general election campaigns, § 9006(a), and (3) primary campaigns, § 9037(a).¹¹⁷

Page 87

          Chapter 95 of Title 26, which concerns financing of party nominating conventions and general election campaigns, distinguishes among "major," "minor," and "new" parties. A major party is defined as a party whose candidate for President in the most recent election received 25% Or more of the popular vote. § 9002(6). A minor party is defined as a party whose candidate received at least 5% But less than 25% Of the vote at the most recent election. § 9002(7). All other parties are new parties, § 9002(8), including both newly created parties and those receiving less than 5% Of the vote in the last election.¹¹⁸

          Major parties are entitled to $2,000,000 to defray their national committee Presidential nominating convention expenses, must limit total expenditures to that amount, § 9008(d),¹¹⁹ and may not use any of this money to benefit a particular candidate or delegate, § 9008(c).

Page 88

A minor party receives a portion of the major-party entitlement determined by the ratio of the votes received by the party's candidate in the last election to the average of the votes received by the major parties' candidates. § 9008(b)(2). The amounts given to the parties and the expenditure limit are adjusted for inflation, using 1974 as the base year. § 9008(b)(5). No financing is provided for new parties, nor is there any express provision for financing independent candidates or parties not holding a convention.

          For expenses in the general election campaign, § 9004(a)(1) entitles each major-party candidate to $20,000,000.¹²⁰ This amount is also adjusted for inflation. See § 9004(a)(1). To be eligible for funds the candidate ¹²¹ must pledge not to incur expenses in excess of the entitlement under § 9004(a) (1) and not to accept private contributions except to the extent that the fund is insufficient to provide the full entitlement. § 9003(b). Minor-party candidates are also entitled to funding, again based on the ratio of the vote received by the party's candidate in the preceding election to the average of the major-party candidates. § 9004(a)(2)(A). Minor-party candidates must certify that they will not incur campaign expenses in excess of the major-party entitlement and

Page 89

that they will accept private contributions only to the extent needed to make up the difference between that amount and the public funding grant. § 9003(c). New-party candidates receive no money prior to the general election, but any candidate receiving 5% Or more of the popular vote in the election is entitled to post-election payments according to the formula applicable to minor-party candidates. § 9004(a)(3). Similarly, minor-party candidates are entitled to post-election funds if they receive a greater percentage of the average major-party vote than their party's candidate did in the preceding election; the amount of such payments is the difference between the entitlement based on the preceding election and that based on the actual vote in the current election. § 9004(a)(3). A further eligibility requirement for minor- and new-party candidates is that the candidate's name must appear on the ballot, or electors pledged to the candidate must be on the ballot, in at least 10 States. § 9002(2)(B).

          Chapter 96 establishes a third account in the Fund, the Presidential Primary Matching Payment Account. § 9037(a). This funding is intended to aid campaigns by candidates seeking Presidential nomination "by a political party," § 9033(b)(2), in "primary elections," § 9032(7).¹²² The threshold eligibility requirement is that the candidate raise at least $5,000 in each of 20 States, counting only the first $250 from each person contributing to the candidate. § 9033(b)(3), (4). In addition, the candidate must agree to abide by the spending limits in § 9035. See § 9033(b)(1). ¹²³ Funding is

Page 90

provided according to a matching formula: each qualified candidate is entitled to a sum equal to the total private contributions received, disregarding contributions from any person to the extent that total contributions to the candidate by that person exceed $250. § 9034(a). Payments to any candidate under Chapter 96 may not exceed 50% Of the overall expenditure ceiling accepted by the candidate. § 9034(b).

                          B. Constitutionality of Subtitle H

          Appellants argue that Subtitle H is invalid (1) as "contrary to the 'general welfare,' " Art. I, § 8(2) because any scheme of public financing of election campaigns is inconsistent with the First Amendment, and (3) because Subtitle H invidiously discriminates against certain interests in violation of the Due Process Clause of the Fifth Amendment. We find no merit in these contentions.

          Appellants' "general welfare" contention erroneously treats the General Welfare Clause as a limitation upon congressional power. It is rather a grant of power, the scope of which is quite expansive, particularly in view of the enlargement of power by the Necessary and Proper Clause. McCulloch v. Maryland, 4 Wheat. 316, 420, 4 L.Ed. 579 (1819). Congress has power to regulate Presidential elections and primaries, United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934); and public financing of Presidential elections as a means to reform the electoral process was clearly a choice within the granted power. It is for Congress to decide which expenditures will promote the general welfare: "(T)he power of Congress to authorize expenditure of public moneys for public purposes is not

Page 91

limited by the direct grants of legislative power found in the Constitution." United States v. Butler, 297 U.S. 1, 66, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936). See Helvering v. Davis, 301 U.S. 619, 640-641, 57 S.Ct. 904, 908-909, 81 L.Ed. 1307 (1937). Any limitations upon the exercise of that granted power must be found elsewhere in the Constitution. In this case, Congress was legislating for the "general welfare" to reduce the deleterious influence of large contributions on our political process, to facilitate communication by candidates with the electorate, and to free candidates from the rigors of fundraising. See S.Rep.No.93-689, pp. 1-10 (1974). Whether the chosen means appear "bad," "unwise," or "unworkable" to us is irrelevant; Congress has concluded that the means are "necessary and proper" to promote the general welfare, and we thus decline to find this legislation without the grant of power in Art. I, § 8.

          Appellants' challenge to the dollar check-off provision (§ 6096) fails for the same reason. They maintain that Congress is required to permit taxpayers to designate particular candidates or parties as recipients of their money. But the appropriation to the Fund in § 9006 is like any other appropriation from the general revenue except that its amount is determined by reference to the aggregate of the one- and two-dollar authorization on taxpayers' income tax returns. This detail does not constitute the appropriation any less an appropriation by Congress.¹²⁴ The fallacy of appellants' argument is therefore appar-

Page 92

ents every appropriation made by Congress uses public money in a manner to which some taxpayers object.¹²⁵

          Appellants next argue that "by analogy" to the Religion Clauses of the First Amendment public financing of election campaigns, however meritorious, violates the First Amendment. We have, of course, held that the Religion Clauses "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" require Congress, and the States through the Fourteenth Amendment, to remain neutral in matters of religion. E. g., Abington School Dist. v. Schempp, 374 U.S. 203, 222-226, 83 S.Ct. 1560, 1571-1573, 10 L.Ed.2d 844 (1963). The government may not aid one religion to the detriment of others or impose a burden on one religion that is not imposed on others, and may not even aid all religions. E. g., Everson v. Board of Education, 330 U.S. 1, 15-16, 67 S.Ct. 504, 511-512, 91 L.Ed. 711 (1947). See Kurland, Of Church and State and the Supreme Court, 29 U.Chi.L.Rev. 1, 96 (1961). But the analogy is patently inapplicable to our issue here. Although "Congress shall make no law . . . abridging the freedom of speech, or of the press," Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge

Page 93

discussion and participation in the electoral process, goals vital to a self-governing people.¹²⁶ Thus, Subtitle H furthers, not abridges, pertinent First Amendment values.¹²⁷ Appellants argue, however, that as constructed public financing invidiously discriminates in violation of the Fifth Amendment. We turn therefore to that argument.

          Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment. Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228, 43 L.Ed.2d 514 (1975), and cases cited. In several situations concerning the electoral process, the principle has been

Page 94

developed that restrictions on access to the electoral process must survive exacting scrutiny. The restriction can be sustained only if it furthers a "vital" governmental interest, American Party of Texas v. White, 415 U.S. 767, 780-781, 94 S.Ct. 1296, 1305-1306, 39 L.Ed.2d 744 (1974), that is "achieved by a means that does not unfairly or unnecessarily burden either a minority party's or an individual candidate's equally important interest in the continued availability of political opportunity." Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974). See American Party of Texas v. White, supra, 415 U.S., at 780, 94 S.Ct., at 1305; Storer v. Brown, 415 U.S. 724, 729-730, 94 S.Ct. 1274, 1278-1279, 39 L.Ed.2d 714 (1974). These cases, however, dealt primarily with state laws requiring a candidate to satisfy certain requirements in order to have his name appear on the ballot. These were, of course, direct burdens not only on the candidate's ability to run for office but also on the voter's ability to voice preferences regarding representative government and contemporary issues. In contrast, the denial of public financing to some Presidential candidates is not restrictive of voters' rights and less restrictive of candidates'.¹²⁸ Subtitle H does not prevent any candidate from getting on the ballot or any voter from casting a vote for the candidate of his choice; the inability, if any, of minor-party candidates to wage effective campaigns will derive not from lack of public funding but from their inability to

Page 95

raise private contributions. Any disadvantage suffered by operation of the eligibility formulae under Subtitle H is thus limited to the claimed denial of the enhancement of opportunity to communicate with the electorate that the formulae afford eligible candidates. But eligible candidates suffer a countervailing denial. As we more fully develop later, acceptance of public financing entails voluntary acceptance of an expenditure ceiling. Noneligible candidates are not subject to that limitation.¹²⁹ Accordingly, we conclude that public financing is generally less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior cases.¹³⁰ In any event, Congress enacted Subtitle H in furtherance of sufficiently important governmental interests and has

Page 96

not unfairly or unnecessarily burdened the political opportunity of any party or candidate.

          It cannot be gainsaid that public financing as a means of eliminating the improper influence of large private contributions furthers a significant governmental interest. S.Rep.No.93-689, pp. 4-5 (1974). In addition, the limits on contributions necessarily increase the burden of fundraising, and Congress properly regarded public financing as an appropriate means of relieving major-party Presidential candidates from the rigors of soliciting private contributions. See id., at 5. The States have also been held to have important interests in limiting places on the ballot to those candidates who demonstrate substantial popular support. E. g., Storer v. Brown, supra, at 736, 94 S.Ct., at 1282; Lubin v. Panish, supra, 415 U.S., at 718-719, 94 S.Ct., at 1321; Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971); Williams v. Rhodes, 393 U.S., at 31-33, 89 S.Ct., at 10-11. Congress' interest in not funding hopeless candidacies with large sums of public money, S.Rep.No.93-689, supra, at 7, necessarily justifies the withholding of public assistance from candidates without significant public support. Thus, Congress may legitimately require "some preliminary showing of a significant modicum of support," Jenness v. Fortson, supra, 403 U.S., at 442, 91 S.Ct., at 1976, as an eligibility requirement for public funds. This requirement also serves the important public interest against providing artificial incentives to "splintered parties and unrestrained factionalism." Storer v. Brown, supra, 415 U.S., at 736, 94 S.Ct., at 1282; S.Rep.No.93-689, supra, at 8; H.R.Rep.No.93-1239, p. 13 (1974). Cf. Bullock v. Carter, 405 U.S. 134, 145, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972).

          At the same time Congress recognized the constitutional restraints against inhibition of the present opportunity of minor parties to become major political entities if they obtain widespread support. S.Rep.No.93-689, supra, at 8-10; H.R.Rep.No.93-1239, supra, at 13. As

Page 97

the Court of Appeals said, "provisions for public funding of Presidential campaigns . . . could operate to give an unfair advantage to established parties, thus reducing, to the nation's detriment, . . . the 'potential fluidity of American political life.' " 171 U.S.App.D.C., at 231, 519 F.2d, at 880, quoting from Jenness v. Fortson, supra, 403 U.S., at 439, 91 S.Ct., at 1974.

1. General Election Campaign Financing

          Appellants insist that Chapter 95 falls short of the constitutional requirement in that its provisions supply larger, and equal, sums to candidates of major parties, use prior vote levels as the sole criterion for pre-election funding, limit new-party candidates to post-election funds, and deny any funds to candidates of parties receiving less than 5% Of the vote. These provisions, it is argued, are fatal to the validity of the scheme, because they work invidious discrimination against minor and new parties in violation of the Fifth Amendment. We disagree.¹³¹

          As conceded by appellants, the Constitution does not require Congress to treat all declared candidates the same for public financing purposes. As we said in Jenness v. Fortson, "there are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. . . . Sometimes the grossest discrimination can lie in treating

Page 98

things that are different as though they were exactly alike, a truism well illustrated in Williams v. Rhodes, supra." 403 U.S., at 441-442, 91 S.Ct., at 1976. Since the Presidential elections of 1856 and 1860, when the Whigs were replaced as a major party by the Republicans, no third party has posed a credible threat to the two major parties in Presidential elections.¹³² Third parties have been completely incapable of matching the major parties' ability to raise money and win elections. Congress was, of course, aware of this fact of American life, and thus was justified in providing both major parties full funding and all other parties only a percentage of the major-party entitlement.¹³³ Identical treatment of all parties, on the other hand, "would not only make it easy to raid the United States Treasury, it would also artificially foster the proliferation of splinter parties." 171 U.S.App.D.C., at 232, 519 F.2d, at 881. The Constitution does not require the Government to "finance the efforts of every nascent political group," American Party of Texas v. White, 415 U.S., at 794, 94 S.Ct., at 1312, merely because Congress chose to finance the efforts of the major parties.

          Furthermore, appellants have made no showing that

Page 99

the election funding plan disadvantages nonmajor parties by operating to reduce their strength below that attained without any public financing. First, such parties are free to raise money from private sources,¹³⁴ and by our holding today new parties are freed from any expenditure limits, although admittedly those limits may be a largely academic matter to them. But since any major-party candidate accepting public financing of a campaign voluntarily assents to a spending ceiling, other candidates will be able to spend more in relation to the major-party candidates. The relative position of minor parties that do qualify to receive some public funds because they received 5% Of the vote in the previous Presidential election is also enhanced. Public funding for candidates of major parties is intended as a substitute for private contributions; but for minor-party candidates ¹³⁵ such assistance may be viewed as a supplement to private contributions since these candidates may continue to solicit private funds up to the applicable spending limit. Thus, we conclude that the general election funding system does not work an invidious discrimination against candidates of nonmajor parties.

          Appellants challenge reliance on the vote in past elections as the basis for determining eligibility. That challenge is foreclosed, however, by our holding in Jenness v. Fortson, 403 U.S., at 439-440, 91 S.Ct., at 1974-1975, that popular vote totals in the last election are a proper measure of public sup-

Page 100

port. And Congress was not obliged to select instead from among appellants' suggested alternatives. Congress could properly regard the means chosen as preferable, since the alternative of petition drives presents cost and administrative problems in validating signatures, and the alternative of opinion polls might be thought inappropriate since it would involve a Government agency in the business of certifying polls or conducting its own investigation of support for various candidates, in addition to serious problems with reliability.¹³⁶

          Appellants next argue, relying on the ballot-access decisions of this Court, that the absence of any alternative means of obtaining pre-election funding renders the scheme unjustifiably restrictive of minority political interests. Appellants' reliance on the ballot-access decisions is misplaced. To be sure, the regulation sustained in Jenness v. Fortson, for example, incorporated alternative means of qualifying for the ballot, 403 U.S., at 440, 91 S.Ct., at 1975, and the lack of an alternative was a defect in the scheme struck down in Lubin v. Panish, 415 U.S., at 718, 94 S.Ct., at 1320. To

Page 101

suggest, however, that the constitutionality of Subtitle H therefore hinges solely on whether some alternative is afforded overlooks the rationale of the operative constitutional principles. Our decisions finding a need for an alternative means turn on the nature and extent of the burden imposed in the absence of available alternatives. We have earlier stated our view that Chapter 95 is far less burdensome upon and restrictive of constitutional rights than the regulations involved in the ballot-access cases. See, supra, at 94-95. Moreover, expenditure limits for major parties and candidates may well improve the chances of nonmajor parties and their candidates to receive funds and increase their spending. Any risk of harm to minority interests is speculative due to our present lack of knowledge of the practical effects of public financing and cannot overcome the force of the governmental interests against use of public money to foster frivolous candidacies, create a system of splintered parties, and encourage unrestrained factionalism.

          Appellants' reliance on the alternative-means analyses of the ballot-access cases generally fails to recognize a significant distinction from the instant case. The primary goal of all candidates is to carry on a successful campaign by communicating to the voters persuasive reasons for electing them. In some of the ballot-access cases the States afforded candidates alternative means for qualifying for the ballot, a step in any campaign that, with rare exceptions, is essential to successful effort. Chapter 95 concededly provides only one method of obtaining pre-election financing; such funding is, however, not as necessary as being on the ballot. See n. 128, supra. Plainly, campaigns can be successfully carried out by means other than public financing; they have been up to this date, and this avenue is still open to all candidates. And, after all, the important achievements of mi-

Page 102

nority political groups in furthering the development of American democracy ¹³⁷ were accomplished without the help of public funds. Thus, the limited participation or nonparticipation of nonmajor parties or candidates in public funding does not unconstitutionally disadvantage them.

          Of course, nonmajor parties and their candidates may qualify for post-election participation in public funding and in that sense the claimed discrimination is not total. Appellants contend, however, that the benefit of any such participation is illusory due to § 9004(c), which bars the use of the money for any purpose other than paying campaign expenses or repaying loans that had been used to defray such expenses. The only meaningful use for post-election funds is thus to repay loans; but loans, except from national banks, are"contributions" subject to the general limitations on contributions, 18 U.S.C. § 591(e) (1970 ed., Supp. IV). Further, they argue, loans are not readily available to nonmajor parties or candidates before elections to finance their campaigns. Availability of post-election funds therefore assertedly gives them nothing. But in the nature of things the willingness of lenders to make loans will depend upon the pre-election probability that the candidate and his party will attract 5% Or more of the voters. When a reasonable prospect of such support appears, the party and candidate may be an acceptable loan risk since the prospect of post-election participation in public funding will be good.¹³⁸

Page 103

          [92,93] Finally, appellants challenge the validity of the 5% Threshold requirement for general election funding. They argue that, since most state regulations governing ballot access have threshold requirements well below 5%, and because in their view the 5% Requirement here is actually stricter than that upheld in Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971),¹³⁹ the requirement is unreasonable. We have already concluded that the restriction under Chapter 95 is generally less burdensome than ballot-access regulations. Supra, at 94-95. Further, the Georgia provision sustained in Jenness required the candidate to obtain the signatures of 5% Of all eligible voters, without regard to party. To be sure, the public funding formula does not permit anyone who voted for another party in the last election to be part of a candidate's 5%. But under Chapter 95 a Presidential candidate needs only 5% Or more of the actual vote, not the larger universe of eligible voters. As a result, we cannot say that Chapter 95 is numerically more, or less, restrictive than the regulation in Jenness. In any event, the choice of the percentage requirement that best accommodates the competing interests involved was for Congress to make. See Louisville Gas Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (1928) (Holmes, J., dissenting); n. 111, supra. Without any doubt a range of formulations would sufficiently protect the public fisc and not foster factionalism, and would also recognize the public interest in the fluidity of our political

Page 104

affairs. We cannot say that Congress' choice falls without the permissible range.¹⁴⁰

          The foregoing analysis and reasoning sustaining general election funding apply in large part to convention funding under Chapter 95 and suffice to support our rejection of appellants' challenge to these provisions. Funding of party conventions has increasingly been derived from large private contributions, see H.R.Rep. No. 93-1239, p. 14 (1974), and the governmental interest in eliminating this reliance is as vital as in the case of private contributions to individual candidates. The expenditure limitations on major parties participating in public financing enhance the ability of nonmajor parties to increase their spending relative to the major parties; further, in soliciting private contributions to finance conventions, parties are not subject to the $1,000 contribution limit pertaining to candidates.¹⁴¹ We therefore conclude that appellants' constitutional challenge to the

Page 105

provisions for funding nominating conventions must also be rejected.

          Appellants' final challenge is to the constitutionality of Chapter 96, which provides funding of primary campaigns. They contend that these provisions are constitutionally invalid (1) because they do not provide funds for candidates not running in party primaries ¹⁴² and (2) because the eligibility formula actually increases the influence of money on the electoral process. In not providing assistance to candidates who do not enter party primaries, Congress has merely chosen to limit at this time the reach of the reforms encompassed in Chapter 96. This Congress could do without constituting the reforms a constitutionally invidious discrimination. The governing principle was stated in Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S.Ct. 1717, 1727, 16 L.Ed.2d 828 (1966):

          "(I)n deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a 'statute is not invalid under the Constitution because it might have gone farther than it did,' Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722, that a legislature need not 'strike at all evils at the same time,' Semler v. Dental Examiners, 294 U.S. 608, 610, 55 S.Ct. 570, 79 L.Ed. 1086, and that 'reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind,' Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563." ¹⁴³

Page 106

          The choice to limit matching funds to candidates running in primaries may reflect that concern about large private contributions to candidates centered on primary races and that there is no historical evidence of similar abuses involving contributions to candidates who engage in petition drives to qualify for state ballots. Moreover, assistance to candidates and nonmajor parties forced to resort to petition drives to gain ballot access implicates the policies against fostering frivolous candidacies, creating a system of splintered parties, and encouraging unrestrained factionalism.

          The eligibility requirements in Chapter 96 are surely not an unreasonable way to measure popular support for a candidate, accomplishing the objective of limiting subsidization to those candidates with a substantial chance of being nominated. Counting only the first $250 of each contribution for eligibility purposes requires candidates to solicit smaller contributions from numerous people. Requiring the money to come from citizens of a minimum number of States eliminates candidates whose appeal is limited geographically; a President is elected not by popular vote, but by winning the popular vote in enough States to have a majority in the Electoral College.¹⁴⁴

Page 107

          [98] We also reject as without merit appellants' argument that the matching formula favors wealthy voters and candidates. The thrust of the legislation is to reduce financial barriers ¹⁴⁵ and to enhance the importance of smaller contributions.¹⁴⁶ Some candidates undoubtedly could raise large sums of money and thus have little need for public funds, but candidates with lesser fundraising capabilities will gain substantial benefits from matching funds. In addition, one eligibility requirement for

Page 108

matching funds is acceptance of an expenditure ceiling, and candidates with little fundraising ability will be able to increase their spending relative to candidates capable of raising large amounts in private funds.

          For the reasons stated, we reject appellants' claims that Subtitle H is facially unconstitutional.¹⁴⁷

          The only remaining issue is whether our holdings invalidating 18 U.S.C. §§ 608(a), (c), and (e)(1) (1970 ed., Supp. IV) require the conclusion that Subtitle H is unconstitutional. There is, of course, a relationship between the spending limits in § 608(c) and the public financing provisions; the expenditure limits accepted by a candidate to be eligible for public funding are identical to the limits in § 608(c). But we have no difficulty in concluding that Subtitle H is severable. "Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." Champ-

Page 109

lin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932). Our discussion of "what is left" leaves no doubt that the value of public financing is not dependent on the existence of a generally applicable expenditure limit. We therefore hold Subtitle H severable from those portions of the legislation today held constitutionally infirm.

                          IV. THE FEDERAL ELECTION COMMISSION

          The 1974 amendments to the Act create an eight-member Federal Election Commission (Commission), and vest in it primary and substantial responsibility for administering and enforcing the Act. The question that we address in this portion of the opinion is whether, in view of the manner in which a majority of its members are appointed, the Commission may under the Constitution exercise the powers conferred upon it. We find it unnecessary to parse the complex statutory provisions in order to sketch the full sweep of the Commission's authority. It will suffice for present purposes to describe what appear to be representative examples of its various powers.

          Chapter 14 of Title 2 ¹⁴⁸ makes the Commission the principal repository of the numerous reports and statements which are required by that chapter to be filed by those engaging in the regulated political activities. Its duties under § 438(a) with respect to these reports and statements include filing and indexing, making them available for public inspection, preservation, and auditing and field investigations. It is directed to "serve as a national clearinghouse for information in respect to the administration of elections." § 438(b).

Page 110

          Beyond these recordkeeping, disclosure, and investigative functions, however, the Commission is given extensive rulemaking and adjudicative powers. Its duty under § 438(a)(10) is "to prescribe suitable rules and regulations to carry out the provisions of . . . chapter (14)." Under § 437d(a)(8) the Commission is empowered to make such rules "as are necessary to carry out the provisions of this Act." ¹⁴⁹ Section 437d(a)(9) authorizes it to "formulate general policy with respect to the administration of this Act" and enumerated sections of Title 18's Criminal Code,¹⁵⁰ as to all of which provisions the Commission "has primary jurisdiction with respect to (their) civil enforcement." § 437c(b).¹⁵¹ The Commission is authorized under § 437f(a) to render advisory opinions with respect to activities possibly violating the Act, the Title 18 sections, or the campaign funding provisions of Title 26,¹⁵² the effect of which is that "(n)ot-

Page 111

withstanding any other provision of law, any person with respect to whom an advisory opinion is rendered . . . who acts in good faith in accordance with the provisions and findings (thereof) shall be presumed to be in compliance with the (statutory provision) with respect to which such advisory opinion is rendered." § 437f(b). In the course of administering the provisions for Presidential campaign financing, the Commission may authorize convention expenditures which exceed the statutory limits. 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV).

          The Commission's enforcement power is both direct and wide ranging. It may institute a civil action for (i) injunctive or other relief against "any acts or practices which constitute or will constitute a violation of this Act," § 437g(a)(5); (ii) declaratory or injunctive relief "as may be appropriate to implement or con(s)true any provisions" of Chapter 95 of Title 26, governing administration of funds for Presidential election campaigns and national party conventions, 26 U.S.C. § 9011(b)(1) (1970 ed., Supp. IV); and (iii) "such injunctive relief as is appropriate to implement any provision" of Chapter 96 of Title 26, governing the payment of matching funds for Presidential primary campaigns, 26 U.S.C. § 9040(c) (1970 ed., Supp. IV). If after the Commission's post-disbursement audit of candidates receiving payments under Chapter 95 or 96 it finds an overpayment, it is empowered to seek repayment of all funds due the Secretary of the Treasury. 26 U.S.C. §§ 9010(b), 9040(b) (1970 ed., Supp. IV). In no respect do the foregoing civil actions require the concurrence of or participation by the Attorney General; conversely, the decision not to seek judicial relief in the above respects would appear to rest solely with the Commission.¹⁵³ With respect to the

Page 112

referenced Title 18 sections, § 437g(a)(7) provides that if, after notice and opportunity for a hearing before it, the Commission finds an actual or threatened criminal violation, the Attorney General "upon request by the Commission . . . shall institute a civil action for relief." Finally, as "(a)dditional enforcement authority," § 456(a) authorizes the Commission, after notice and opportunity for hearing, to make "a finding that a person . . . while a candidate for Federal office, failed to file" a required report of contributions or expenditures. If that finding is made within the applicable limitations period

Page 113

for prosecutions, the candidate is thereby "disqualified from becoming a candidate in any future election for Federal office for a period of time beginning on the date of such finding and ending one year after the expiration of the term of the Federal office for which such person was a candidate." ¹⁵⁴

          The body in which this authority is reposed consists of eight members.¹⁵⁵ The Secretary of the Senate and the Clerk of the House of Representatives are ex officio members of the Commission without the right to vote. Two members are appointed by the President pro tempore of the Senate "upon the recommendations of the majority leader of the Senate and the minority leader of the Senate." ¹⁵⁶ Two more are to be appointed by the Speaker of the House of Representatives, likewise upon the recommendations of its respective majority and minority leaders. The remaining two members are appointed by the President. Each of the six voting members of the Commission must be confirmed by the majority of both Houses of Congress, and each of the three appointing authorities is forbidden to choose both of their appointees from the same political party.

          Appellants argue that given the Commission's extensive powers the method of choosing its members under § 437c(a)(1) runs afoul of the separation of powers embedded in the Constitution, and urge that as presently constituted the Commission's "existence be held unconstitutional by this Court." Before embarking on this or any

Page 114

related inquiry, however, we must decide whether these issues are properly before us. Because of the Court of Appeals' emphasis on lack of "ripeness" of the issue relating to the method of appointment of the members of the Commission, we find it necessary to focus particularly on that consideration in this section of our opinion.

          We have recently recognized the distinction between jurisdictional limitations imposed by Art. III and "(p)roblems of prematurity and abstractness" that may prevent adjudication in all but the exceptional case. Socialist Labor Party v. Gilligan, 406 U.S. 583, 588, 92 S.Ct. 1716, 1719, 32 L.Ed.2d 317 (1972). In Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 357, 42 L.Ed.2d 320 (1974), we stated that "ripeness is peculiarly a question of timing," and therefore the passage of months between the time of the decision of the Court of Appeals and our present ruling is of itself significant. We likewise observed in the Reorganization Act Cases:

          "Thus, occurrence of the conveyance allegedly violative of Fifth Amendment rights is in no way hypothetical or speculative. Where the inevitability of the operation of a statute against certain individuals is patent, it is irrelevant to the existence of a justiciable controversy that there will be a time delay before the disputed provisions will come into effect." Id., at 143, 95 S.Ct., at 358.

          The Court of Appeals held that of the five specific certified questions directed at the Commission's authority, only its powers to render advisory opinions and to authorize excessive convention expenditures were ripe for adjudication. The court held that the remaining aspects of the Commission's authority could not be adjudicated because "(in) its present stance, this litigation does not present the court with the concrete facts that are neces-

Page 115

sary to an informed decision."¹⁵⁷ 171 U.S.App.D.C., at 244, 519 F.2d, at 893.

            Since the entry of judgment by the Court of Appeals,

Page 116

the Commission has undertaken to issue rules and regulations under the authority of § 438(a)(10). While many of its other functions remain as yet unexercised, the date of their all but certain exercise is now closer

Page 117

by several months than it was at the time the Court of Appeals ruled. Congress was understandably most concerned with obtaining a final adjudication of as many issues as possible litigated pursuant to the provisions of § 437h. Thus, in order to decide the basic question whether the Act's provision for appointment of the members of the Commission violates the Constitution, we believe we are warranted in considering all of those aspects of the Commission's authority which have been presented by the certified questions.¹⁵⁸

          Party litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). In Glidden, of course, the challenged adjudication had already taken place, whereas in this case appellants' claim is of impending future rulings and determinations by the Commission. But this is a question of ripeness, rather than lack of case or controversy under Art. III, and for the reasons to which we have previously

Page 118

adverted we hold that appellants' claims as they bear upon the method of appointment of the Commission's members may be presently adjudicated.

          Appellants urge that since Congress has given the Commission wide-ranging rulemaking and enforcement powers with respect to the substantive provisions of the Act, Congress is precluded under the principle of separation of powers from vesting in itself the authority to appoint those who will exercise such authority. Their argument is based on the language of Art. II, § 2, cl. 2, of the Constitution, which provides in pertinent part as follows:

          "(The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

          Appellants' argument is that this provision is the exclusive method by which those charged with executing the laws of the United States may be chosen. Congress, they assert, cannot have it both ways. If the Legislature wishes the Commission to exercise all of the conferred powers, then its members are in fact "Officers of the United States" and must be appointed under the Appointments Clause. But if Congress insists upon retaining the power to appoint, then the members of the Commission may not discharge those many functions of the Commission which can be performed only by "Officers of

Page 119

the United States," as that term must be construed within the doctrine of separation of powers.

          Appellee Commission and amici in support of the Commission urge that the Framers of the Constitution, while mindful of the need for checks and balances among the three branches of the National Government, had no intention of denying to the Legislative Branch authority to appoint its own officers. Congress, either under the Appointments Clause or under its grants of substantive legislative authority and the Necessary and Proper Clause in Art. I, is in their view empowered to provide for the appointment to the Commission in the manner which it did because the Commission is performing "appropriate legislative functions."

          The majority of the Court of Appeals recognized the importance of the doctrine of separation of powers which is at the heart of our Constitution, and also recognized the principle enunciated in Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), that the Legislative Branch may not exercise executive authority by retaining the power to appoint those who will execute its laws. But it described appellants' argument based upon Art. II, § 2, cl. 2, as "strikingly syllogistic," and concluded that Congress had sufficient authority under the Necessary and Proper Clause of Art. I of the Constitution not only to establish the Commission but to appoint the Commission's members. As we have earlier noted, it upheld the constitutional validity of congressional vesting of certain authority in the Commission, and concluded that the question of the constitutional validity of the vesting of its remaining functions was not yet ripe for review. The three dissenting judges in the Court of Appeals concluded that the method of appointment for the Commission did violate the doctrine of separation of powers.

Page 120

1. Separation of Powers

          We do not think appellants' arguments based upon Art. II, § 2, cl. 2, of the Constitution may be so easily dismissed as did the majority of the Court of Appeals. Our inquiry of necessity touches upon the fundamental principles of the Government established by the Framers of the Constitution, and all litigants and all of the courts which have addressed themselves to the matter start on common ground in the recognition of the intent of the Framers that the powers of the three great branches of the National Government be largely separate from one another.

          James Madison, writing in the Federalist No. 47,¹⁵⁹ defended the work of the Framers against the charge that these three governmental powers were not entirely separate from one another in the proposed Constitution. He asserted that while there was some admixture, the Constitution was nonetheless true to Montesquieu's well-known maxim that the legislative, executive, and judicial departments ought to be separate and distinct:

          "The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. 'When the legislative and executive powers are united in the same person or body,' says he, 'there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.' Again: 'Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.' Some of these reasons

Page 121

          are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author." ¹⁶⁰

          Yet it is also clear from the provisions of the Constitution itself, and from the Federalist Papers, that the Constitution by no means contemplates total separation of each of these three essential branches of Government. The President is a participant in the law-making process by virtue of his authority to veto bills enacted by Congress. The Senate is a participant in the appointive process by virtue of its authority to refuse to confirm persons nominated to office by the President. The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively.

          Mr. Chief Justice Taft, writing for the Court in Hampton & Co. v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed. 624 (1928), after stating the general principle of separation of powers found in the United States Constitution, went on to observe:

          "(T)he rule is that in the actual administration of the government Congress or the Legislature should exercise the legislative power, the President or the state executive, the Governor, the executive power, and the courts or the judiciary the judicial power, and in carrying out that constitutional division into three branches it is a breach of the national fundamental law if Congress gives up its legislative power

Page 122

          and transfers it to the President, or to the judicial branch, or if by law it attempts to invest itself or its members with either executive power or judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination." Id., at 406, 48 S.Ct., at 351.

          More recently, Mr. Justice Jackson, concurring in the opinion and the judgment of the Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952), succinctly characterized this understanding:

          "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

          The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other. As Madison put it in Federalist No. 51:

          "This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the

Page 123

          several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State." ¹⁶¹

          This Court has not hesitated to enforce the principle of separation of powers embodied in the Constitution when its application has proved necessary for the decisions of cases or controversies properly before it. The Court has held that executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution. United States v. Ferreira, 54 U.S. 40, 13 How. 40, 14 L.Ed. 42 (1852); Hayburn's Case, 2 U.S. 409, 2 Dall. 409, 1 L.Ed. 436 (1792). The Court has held that the President may not execute and exercise legislative authority belonging only to Congress. Youngstown Sheet & Tube Co. v. Sawyer, supra. In the course of its opinion in that case, the Court said:

          "In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that 'All legislative Powers herein granted shall be vested in a Congress of the United States . . . .' " 343 U.S., at 587-588, 72 S.Ct., at 867.

Page 124

          More closely in point to the facts of the present case is this Court's decision in Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), where the Court held that the legislature of the Philippine Islands could not provide for legislative appointment to executive agencies.

2. The Appointments Clause

          The principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the document that they drafted in Philadelphia in the summer of 1787. Article I, § 1, declares: "All legislative Powers herein granted shall be vested in a Congress of the United States." Article II, § 1, vests the executive power "in a President of the United States of America," and Art. III, § 1, declares that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The further concern of the Framers of the Constitution with maintenance of the separation of powers is found in the so-called "Ineligibility" and "Incompatibility" Clauses contained in Art. I, § 6:

          "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

          It is in the context of these cognate provisions of the document that we must examine the language of Art. II, § 2, cl. 2, which appellants contend provides the only authorization for appointment of those to whom substantial executive or administrative authority is given

Page 125

by statute. Because of the importance of its language, we again set out the provision:

          "(The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

          The Appointments Clause could, of course, be read as merely dealing with etiquette or protocol in describing "Officers of the United States," but the drafters had a less frivolous purpose in mind. This conclusion is supported by language from United States v. Germaine, 99 U.S. 508, 509-510, 25 L.Ed. 482 (1879):

          "The Constitution for purposes of appointment very clearly divides all its officers into two classes. The primary class requires a nomination by the President and confirmation by the Senate. But foreseeing that when offices became numerous, and sudden removals necessary, this mode might be inconvenient, it was provided that, in regard to officers inferior to those specially mentioned, Congress might by law vest their appointment in the President alone, in the courts of law, or in the heads of departments. That all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment there can be but little doubt." (Emphasis supplied.)

          We think that the term "Officers of the United States"

Page 126

as used in Art. II, defined to include "all persons who can be said to hold an office under the government" in United States v. Germaine, supra, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the United States is an "Officer of the United States," and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of that Article.

          If "all persons who can be said to hold an office under the government about to be established under the Constitution were intended to be included within one or the other of these modes of appointment," United States v. Germaine, supra, it is difficult to see how the members of the Commission may escape inclusion. If a postmaster first class, Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), and the clerk of a district court, Ex parte Hennen, 38 U.S. 225, 13 Pet. 230, 10 L.Ed. 138 (1839), are inferior officers of the United States within the meaning of the Appointments Clause, as they are, surely the Commissioners before us are at the very least such "inferior Officers" within the meaning of that Clause.¹⁶²

            Although two members of the Commission are initially selected by the President, his nominations are subject to confirmation not merely by the Senate, but by the House of Representatives as well. The remaining four voting members of the Commission are appointed by the President pro tempore of the Senate and by the Speaker of the House. While the second part of the Clause

Page 127

authorizes Congress to vest the appointment of the officers described in that part in "the Courts of Law, or in the Heads of Departments," neither the Speaker of the House nor the President pro tempore of the Senate comes within this language.

          The phrase "Heads of Departments," used as it is in conjunction with the phrase "Courts of Law," suggests that the Departments referred to are themselves in the Executive Branch or at least have some connection with that branch. While the Clause expressly authorizes Congress to vest the appointment of certain officers in the "Courts of Law," the absence of similar language to include Congress must mean that neither Congress nor its officers were included within the language "Heads of Departments" in this part of cl. 2.

          Thus with respect to four of the six voting members of the Commission, neither the President, the head of any department, nor the Judiciary has any voice in their selection.

          The Appointments Clause specifies the method of appointment only for "Officers of the United States" whose appointment is not "otherwise provided for" in the Constitution. But there is no provision of the Constitution remotely providing any alternative means for the selection of the members of the Commission or for anybody like them. Appellee Commission has argued, and the Court of Appeals agreed, that the Appointments Clause of Art. II should not be read to exclude the "inherent power of Congress" to appoint its own officers to perform functions necessary to that body as an institution. But there is no need to read the Appointments Clause contrary to its plain language in order to reach the result sought by the Court of Appeals. Article I, § 3, cl. 5, expressly authorizes the selection of the President pro tempore of the Senate, and § 2, cl. 5, of that Article provides

Page 128

for the selection of the Speaker of the House. Ranking nonmembers, such as the Clerk of the House of Representatives, are elected under the internal rules of each House ¹⁶³ and are designated by statute as "officers of the Congress." ¹⁶⁴ There is no occasion for us to decide whether any of these member officers are "Officers of the United States" whose "appointment" is otherwise provided for within the meaning of the Appointments Clause, since even if they were such officers their appointees would not be. Contrary to the fears expressed by the majority of the Court of Appeals, nothing in our holding with respect to Art. II, § 2, cl. 2, will deny to Congress "all power to appoint its own inferior officers to carry out appropriate legislative functions." ¹⁶⁵

          Appellee Commission and amici contend somewhat obliquely that because the Framers had no intention of relegating Congress to a position below that of the coequal Judicial and Executive Branches of the National Government, the Appointments Clause must somehow be read to include Congress or its officers as among those

Page 129

in whom the appointment power may be vested. But the debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches.¹⁶⁶ The debates during the Convention, and the evolution of the draft version of the Constitution, seem to us to lend considerable support to our reading of the language of the Appointments Clause itself.

          An interim version of the draft Constitution had vested in the Senate the authority to appoint Ambassadors, public Ministers, and Judges of the Supreme Court, and the language of Art. II as finally adopted is a distinct change in this regard. We believe that it was a deliberate change made by the Framers with the intent to deny Congress any authority itself to appoint those who were "Officers of the United States." The debates on the floor of the Convention reflect at least in part the way the change came about.

          On Monday, August 6, 1787, the Committee on Detail to which had been referred the entire draft of the Constitution reported its draft to the Convention, including the following two articles that bear on the question before us: ¹⁶⁷

          Article IX, § 1: "The Senate of the United States shall have power . . . to appoint Ambassadors, and Judges of the Supreme Court."

          Article X, § 2: "(The President) shall commission all

Page 130

          the officers of the United States; and shall appoint officers in all cases not otherwise provided for by this Constitution."

          It will be seen from a comparison of these two articles that the appointment of Ambassadors and Judges of the Supreme Court was confided to the Senate, and that the authority to appoint not merely nominate, but to actually appoint all other officers was reposed in the President.

          During a discussion of a provision in the same draft from the Committee on Detail which provided that the "Treasurer" of the United States should be chosen by both Houses of Congress, Mr. Read moved to strike out that clause, "leaving the appointment of the Treasurer as of other officers to the Executive." ¹⁶⁸ Opposition to Read's motion was based, not on objection to the principle of executive appointment, but on the particular nature of the office of the "Treasurer." ¹⁶⁹

          On Thursday, August 23, the Convention voted to insert after the word "Ambassadors" in the text of draft Art. IX the words "and other public Ministers." Immediately afterwards, the section as amended was referred to the "Committee of Five." ¹⁷⁰ The following day the Convention took up Art. X. Roger Sherman objected to the draft language of § 2 because it conferred too much power on the President, and proposed to insert after the words "not otherwise provided for by this Constitution" the words "or by law." This motion was defeated by a vote of nine States to one.¹⁷¹ On Septem-

Page 131

ber 3 the Convention debated the Ineligibility and Incompatibility Clauses which now appear in Art. I, and made the Ineligibility Clause somewhat less stringent.¹⁷²

          Meanwhile, on Friday, August 31, a motion had been carried without opposition to refer such parts of the Constitution as had been postponed or not acted upon to a Committee of Eleven. Such reference carried with it both Arts. IX and X. The following week the Committee of Eleven made its report to the Convention, in which the present language of Art. II, § 2, cl. 2, dealing with the authority of the President to nominate is found, virtually word for word, as § 4 of Art. X.¹⁷³ The same Committee also reported a revised article concerning the Legislative Branch to the Convention. The changes are obvious. In the final version, the Senate is shorn of its power to appoint Ambassadors and Judges of the Supreme Court. The President is given, not the power to appoint public officers of the United States, but only the right to nominate them, and a provision is inserted by virtue of which Congress may require Senate confirmation of his nominees.

          It would seem a fair surmise that a compromise had been made. But no change was made in the concept of the term "Officers of the United States," which since it had first appeared in Art. X had been taken by all concerned to embrace all appointed officials exercising responsibility under the public laws of the Nation.

          Appellee Commission and amici urge that because of what they conceive to be the extraordinary authority reposed in Congress to regulate elections, this case stands on a different footing than if Congress had exercised its legislative authority in another field. There is, of course, no doubt that Congress has express authority to regulate

Page 132

congressional elections, by virtue of the power conferred in Art. I, § 4.¹⁷⁴ This Court has also held that it has very broad authority to prevent corruption in national Presidential elections. Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934). But Congress has plenary authority in all areas in which it has substantive legislative jurisdiction, McCulloch v. Maryland, 17 U.S. 316, 4 W heat. 316, 4 L.Ed. 579 (1819), so long as the exercise of that authority does not offend some other constitutional restriction. We see no reason to believe that the authority of Congress over federal election practices is of such a wholly different nature from the other grants of authority to Congress that it may be employed in such a manner as to offend well-established constitutional restrictions stemming from the separation of powers.

          The position that because Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to appoint those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection is elsewhere provided for, all Officers of the United States are to be appointed in accordance with the Clause. Principal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary. No class or type of officer is excluded because of its special functions. The President appoints judicial as well as executive officers. Neither has it been disputed and apparently

Page 133

it is not now disputed that the Clause controls the appointment of the members of a typical administrative agency even though its functions, as this Court recognized in Humphrey's Executor v. United States, 295 U.S. 602, 624, 55 S.Ct. 869, 872, 79 L.Ed. 1611 (1935), may be "predominantly quasijudicial and quasilegislative" rather than executive. The Court in that case carefully emphasized that although the members of such agencies were to be independent of the Executive in their day-to-day operations, the Executive was not excluded from selecting them. Id., at 625-626, 55 S.Ct., at 872.

          Appellees argue that the legislative authority conferred upon the Congress in Art. I, § 4, to regulate "the Times, Places and Manner of holding Elections for Senators and Representatives" is augmented by the provision in § 5 that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." Section 5 confers, however, not a general legislative power upon the Congress, but rather a power "judicial in character" upon each House of the Congress. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 49 S.Ct. 452, 455, 73 L.Ed. 867 (1929). The power of each House to judge whether one claiming election as Senator or Representative has met the requisite qualifications, Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), cannot reasonably be translated into a power granted to the Congress itself to impose substantive qualifications on the right to so hold such office. Whatever power Congress may have to legislate, such qualifications must derive from § 4, rather than § 5, of Art. I.

          Appellees also rely on the Twelfth Amendment to the Constitution insofar as the authority of the Commission to regulate practices in connection with the Presidential election is concerned. This Amendment provides that certificates of the votes of the electors be "sealed (and)

Page 134

directed to the President of the Senate," and that the "President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted." The method by which Congress resolved the celebrated disputed Hayes-Tilden election of 1876, reflected in 19 Stat. 227, supports the conclusion that Congress viewed this Amendment as conferring upon its two Houses the same sort of power "judicial in character," Barry v. United States ex rel. Cunningham, supra, 279 U.S., at 613, 49 S.Ct., at 455, as was conferred upon each House by Art. I, § 5, with respect to elections of its own members.

          We are also told by appellees and amici that Congress had good reason for not vesting in a Commission composed wholly of Presidential appointees the authority to administer the Act, since the administration of the Act would undoubtedly have a bearing on any incumbent President's campaign for re-election. While one cannot dispute the basis for this sentiment as a practical matter, it would seem that those who sought to challenge incumbent Congressmen might have equally good reason to fear a Commission which was unduly responsive to members of Congress whom they were seeking to unseat. But such fears, however rational, do not by themselves warrant a distortion of the Framers' work.

          Appellee Commission and amici finally contend, and the majority of the Court of Appeals agreed with them, that whatever shortcomings the provisions for the appointment of members of the Commission might have under Art. II, Congress had ample authority under the Necessary and Proper Clause of Art. I to effectuate this result. We do not agree. The proper inquiry when considering the Necessary and Proper Clause is not the authority of Congress to create an office or a commission, which is broad indeed, but rather its authority to

Page 135

that its own officers may make appointments to such office or commission.

          So framed, the claim that Congress may provide for this manner of appointment under the Necessary and Proper Clause of Art. I stands on no better footing than the claim that it may provide for such manner of appointment because of its substantive authority to regulate federal elections. Congress could not, merely because it concluded that such a measure was "necessary and proper" to the discharge of its substantive legislative authority, pass a bill of attainder or ex post facto law contrary to the prohibitions contained in § 9 of Art. I. No more may it vest in itself, or in its officers, the authority to appoint officers of the United States when the Appointments Clause by clear implication prohibits it from doing so.

          The trilogy of cases from this Court dealing with the constitutional authority of Congress to circumscribe the President's power to remove officers of the United States is entirely consistent with this conclusion. In Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), the Court held that Congress could not by statute divest the President of the power to remove an officer in the Executive Branch whom he was initially authorized to appoint. In explaining its reasoning in that case, the Court said:

          "The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. . . . As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were

Page 136

          to act for him under his direction in the execution of the laws.

          "Our conclusion on the merits, sustained by the arguments before stated, is that article 2 grants to the President the executive power of the government i. e., the general administrative control of those executing 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 . . . ." Id., at 117, 163-164, 47 S.Ct., at 25.

          In the later case of Humphrey's Executor, where it was held that Congress could circumscribe the President's power to remove members of independent regulatory agencies, the Court was careful to note that it was dealing with an agency intended to be independent of executive authority "except in its selection." 295 U.S., at 625, 55 S.Ct., at 872 (emphasis in original). Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958), which applied the holding in Humphrey's Executor to a member of the War Claims Commission, did not question in any respect that members of independent agencies are not independent of the Executive with respect to their appointments.

          This conclusion is buttressed by the fact that Mr. Justice Sutherland, the author of the Court's opinion in Humphrey's Executor, likewise wrote the opinion for the Court in Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), in which it was said:

          "Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot ingraft executive duties were upon a legislative office, since that would be to usurp the power of appointment by indirection; though the case might be different if the additional duties

Page 137

          were devolved upon an appointee of the executive." Id., at 202, 48 S.Ct., at 482.

3. The Commission's Powers

          Thus, on the assumption that all of the powers granted in the statute may be exercised by an agency whose members have been appointed in accordance with the Appointments Clause,¹⁷⁵ the ultimate question is which, if any, of those powers may be exercised by the present voting Commissioners, none of whom was appointed as provided by that Clause. Our previous description of the statutory provisions, see supra, at 109-113, disclosed that the Commission's powers fall generally into three categories: functions relating to the flow of necessary information receipt, dissemination, and investigation; functions with respect to the Commission's task of fleshing out the statute rulemaking and advisory opinions; and functions necessary to ensure compliance with the statute and rules informal procedures, administrative determinations and hearings, and civil suits.

          Insofar as the powers confided in the Commission are essentially of an investigative and informative nature, falling in the same general category as those powers which Congress might delegate to one of its own committees, there can be no question that the Commission as presently constituted may exercise them. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1881); McGrain v. Daugherty,

Page 138

273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580 (1927); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). As this Court stated in McGrain, supra, 273 U.S., at 175, 47 S.Ct., at 329:

          "A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which not infrequently is true recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate attribute of the power to legislate, indeed, was treated as inhering in it."

          But when we go beyond this type of authority to the more substantial powers exercised by the Commission, we reach a different result. The Commission's enforcement power, exemplified by its discretionary power to seek judicial relief, is authority that cannot possibly be regarded as merely in aid of the legislative function of Congress. A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to "take Care that the Laws be faithfully executed." Art. II, § 3.

          Congress may undoubtedly under the Necessary and Proper Clause create "offices" in the generic sense and provide such method of appointment to those "offices" as it chooses. But Congress' power under that Clause

Page 139

is inevitably bounded by the express language of Art. II, § 2, cl. 2, and unless the method it provides comports with the latter, the holders of those offices will not be "Officers of the United States." They may, therefore, properly perform duties only in aid of those functions that Congress may carry out by itself, or in an area sufficiently removed from the administration and enforcement of the public law as to permit their being performed by persons not "Officers of the United States."

          This Court observed more than a century ago with respect to litigation conducted in the courts of the United States:

          "Whether tested, therefore, by the requirements of the Judiciary Act, or by the usage of the government, or by the decisions of this court, it is clear that all such suits, so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney-General." Confiscation Cases, 74 U.S. 454, 458-459, 7 Wall. 454, 458-459, 19 L.Ed. 196 (1869).

          The Court echoed similar sentiments 59 years later in Springer v. Philippine Islands, 277 U.S., at 202, 48 S.Ct., at 482, saying:

          "Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement. The latter are executive functions. It is unnecessary to enlarge further upon the general subject, since it has so recently received the full consideration of this court. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160.

          "Not having the power of appointment, unless expressly granted or incidental to its powers, the legislature cannot ingraft executive duties upon a legislative office, since that would be to usurp the power of appointment by indirection, though the

Page 140

          case might be different if the additional duties were devolved upon an appointee of the executive."

          We hold that these provisions of the Act, vesting in the Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate Art. II, § 2, cl. 2, of the Constitution. Such functions may be discharged only by persons who are "Officers of the United States" within the language of that section.

          All aspects of the Act are brought within the Commission's broad administrative powers: rulemaking, advisory opinions, and determinations of eligibility for funds and even for federal elective office itself. These functions, exercised free from day-to-day supervision of either Congress ¹⁷⁶ or the Executive Branch, are more legislative and judicial in nature than are the Commis-

Page 141

sion's enforcement powers, and are of kinds usually performed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress. Congress viewed these broad powers as essential to effective and impartial administration of the entire substantive framework of the Act. Yet each of these functions also represents the performance of a significant governmental duty exercised pursuant to a public law. While the President may not insist that such functions be delegated to an appointee of his removable at will, Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), none of them operates merely in aid of congressional authority to legislate or is sufficiently removed from the administration and enforcement of public law to allow it to be performed by the present Commission. These administrative functions may therefore be exercised only by persons who are "Officers of the United States." ¹⁷⁷

Page 142

          [118] It is also our view that the Commission's inability to exercise certain powers because of the method by which its members have been selected should not affect the validity of the Commission's administrative actions and determinations to this date, including its administration of those provisions, upheld today, authorizing the public financing of federal elections. The past acts of the Commission are therefore accorded de facto validity, just as we have recognized should be the case with respect to legislative acts performed by legislators held to have been elected in accordance with an unconstitutional apportionment plan. Connor v. Williams, 404 U.S. 549, 550-551, 92 S.Ct. 656, 658, 30 L.Ed.2d 704 (1972). See Ryan v. Tinsley, 316 F.2d 430, 431-432 (CA10 1963); Schaefer v. Thomson, 251 F.Supp. 450, 453 (Wyo.1965), aff'd sub nom. Harrison v. Schaeffer, 383 U.S. 269, 86 S.Ct. 929, 15 L.Ed.2d 750 (1966). Cf. City of Richmond v. United States, 422 U.S. 358, 379, 95 S.Ct. 2296, 2308, 45 L.Ed.2d 245 (1975) (Brennan, J., dissenting). We also draw on the Court's practice in

Page 143

the apportionment and voting rights cases and stay, for a period not to exceed 30 days, the Court's judgment insofar as it affects the authority of the Commission to exercise the duties and powers granted it under the Act. This limited stay will afford Congress an opportunity to reconstitute the Commission by law or to adopt other valid enforcement mechanisms without interrupting enforcement of the provisions the Court sustains, allowing the present Commission in the interim to function de facto in accordance with the substantive provisions of the Act. Cf. Georgia v. United States, 411 U.S. 526, 541, 93 S.Ct. 1702, 1711, 36 L.Ed.2d 472 (1973); Fortson v. Morris, 385 U.S. 231, 235, 87 S.Ct. 446, 449, 17 L.Ed.2d 330 (1966); Maryland Comm. v. Tawes, 377 U.S. 656, 675-676, 84 S.Ct. 1429, 1440, 12 L.Ed.2d 595 (1964).

          In summary,¹⁷⁸ we sustain the individual contribution limits, the disclosure and reporting provisions, and the public financing scheme. We conclude, however, that the limitations on campaign expenditures, on independent expenditures by individuals and groups, and on expenditures by a candidate from his personal funds are constitutionally infirm. Finally, we hold that most of the powers conferred by the Act upon the Federal Election Commission can be exercised only by "Officers of the United States," appointed in conformity with Art. II, § 2, cl. 2, of the Constitution, and therefore cannot be exercised by the Commission as presently constituted.

          In No. 75-436, the judgment of the Court of Appeals

Page 144

is affirmed in part and reversed in part. The judgment of the District Court in No. 75-437 is affirmed. The mandate shall issue forthwith, except that our judgment is stayed, for a period not to exceed 30 days, insofar as it affects the authority of the Commission to exercise the duties and powers granted it under the Act.

          So ordered.

          Mr. Justice STEVENS took no part in the consideration or decision of these cases.

                            APPENDIX TO PER CURIAM OPINION ^*

                        CHAPTER 14 FEDERAL ELECTION CAMPAIGNS

          SUBCHAPTER I. DISCLOSURE OF FEDERAL CAMPAIGN FUNDS

s 431. Definitions

          When used in this subchapter and subchapter II of this chapter

          (a) "election" means

          (1) a general, special, primary, or runoff election;

          (2) a convention or caucus of a political party held to nominate a candidate;

          (3) a primary election held for the selection of delegates to a national nominating convention of a political party; and

          (4) a primary election held for the expression of a preference for the nomination of persons for election to the office of President;

Page 145

          (b) "candidate" means an individual who seeks nomination for election, or election, to Federal office, whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election, if he has

          (1) taken the action necessary under the law of a State to qualify himself for nomination for election, or election, to Federal office; or

          (2) received contributions or made expenditures, or has given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to such office;

          (c) "Federal office" means the office of President or Vice President of the United States; or of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States;

          (d) "political committee" means any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000;

          (e) "contribution"

          (1) means a gift, subscription, loan, advance, or deposit of money or anything of value made for the purpose of

          (A) influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party; or

          (B) influencing the result of an election held for the expression of a preference for the nomination of persons for election to the office of President of the United States;

Page 146

          (2) means a contract, promise, or agreement, expressed or implied, whether or not legally enforceable, to make a contribution for such purposes;

          (3) means funds received by a political committee which are transferred to such committee from another political committee or other source;

          (4) means the payment, by any person other than a candidate or a political committee, of compensation for the personal services of another person which are rendered to such candidate or political committee without charge for any such purpose; but

          (5) does not include

          (A) the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee;

          (B) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities;

          (C) the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge less than the normal comparable charge, if such charge for use in a candidate's campaign is at least equal to the cost of such food or beverage to the vendor;

          (D) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate;

          (E) the payment by a State or local committee of a political party of the costs of prepa-

Page 147

          ration, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines, or other similar types of general public political advertising; or

          (F) any payment made or obligation incurred by a corporation or a labor organization which, under the provisions of the last paragraph of section 610 of Title 18, would not constitute an expenditure by such corporation or labor organization; to the extent that the cumulative value of activities by any individual on behalf of any candidate under each of clauses (B), (C), and (D) does not exceed $500 with respect to any election;

          (f) "expenditure"

          (1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made for the purpose of

          (A) influencing the nomination for election, or the election, of any person to Federal office, or to the office of presidential and vice presidential elector; or

          (B) influencing the results of a primary election held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for

Page 148

          the nomination of persons for election to the office of President of the United States;

          (2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make any expenditure;

          (3) means the transfer of funds by a political committee to another political committee; but

          (4) does not include

          (A) any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;

          (B) nonpartisan activity designed to encourage individuals to register to vote or to vote;

          (C) any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office;

          (D) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities if the cumulative value of such activities by such individual on behalf of any candidate do (sic ) not exceed $500 with respect to any election;

          (E) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate if the cumulative amount for such individual incurred with respect to such candi-

Page 149

          date does not exceed $500 with respect to any election;

          (F) any communication by any person which is not made for the purpose of influencing the nomination for election, or election, of any person to Federal office; or

          (G) the payment by a State or local committee of a political party of the costs of preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising; or

          (H) any payment made or obligation incurred by a corporation or a labor organization which, under the provisions of the last paragraph of section 610 of Title 18, would not constitute an expenditure by such corporation or labor organization;

          (g) "Commission" means the Federal Election Commission;

          (h) "person" means an individual, partnership, committee, association, corporation, labor organization, and any other organization or group of persons;

          (i) "State" means each State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States;

Page 150

          (j) "identification" means

          (1) in the case of an individual, his full name and the full address of his principal place of residence; and

          (2) in the case of any other person, the full name and address of such person;

          (k) "national committee" means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the national level, as determined by the Commission;

          (l) "State committee" means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the State level, as determined by the Commission;

          (m) "political party" means an association, committee, or organization which nominates a candidate for election to any Federal office, whose name appears on the election ballot as the candidate of such association, committee, or organization; and

          (n) "principal campaign committee" means the principal campaign committee designated by a candidate under section 432(f)(1) of this title.

s 432. Organization of political committees.

          (a) Chairman; treasurer; vacancies; official authorizations. Every political committee shall have a chairman and a treasurer. No contribution and no expenditure shall be accepted or made by or on behalf of a political committee at a time when there is a vacancy in the office of chairman or treasurer thereof. No expenditure shall be made for or on behalf of a political committee without the authorization of its chairman or treasurer, or their designated agents.

          (b) Account of contributions; segregated funds.

Page 151

Every person who receives a contribution in excess of $10 for a political committee shall, on demand of the treasurer, and in any event within 5 days after receipt of such contribution, render to the treasurer a detailed account thereof, including the amount of the contribution and the identification of the person making such contribution, and the date on which received. All funds of a political committee shall be segregated from, and may not be commingled with, any personal funds of officers, members, or associates of such committee.

          (c) Recordkeeping. It shall be the duty of the treasurer of a political committee to keep a detailed and exact account of

          (1) all contributions made to or for such committee;

          (2) the identification of every person making a contribution in excess of $10, and the date and amount thereof and, if a person's contributions aggregate more than $100, the account shall include occupation, and the principal place of business (if any);

          (3) all expenditures made by or on behalf of such committee; and

          (4) the identification of every person to whom any expenditure is made, the date and amount thereof and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made.

          (d) Receipts; preservation. It shall be the duty of the treasurer to obtain and keep a receipted bill, stating the particulars, for every expenditure made by or on behalf of a political committee in excess of $100 in amount, and for any such expenditure in a lesser amount, if the aggregate amount of such expenditures to the same person during a calendar year exceeds $100. The

Page 152

shall preserve all receipted bills and accounts required to be kept by this section for periods of time to be determined by the Commission.

          (e) Unauthorized activities; notice. Any political committee which solicits or receives contributions or makes expenditures on behalf of any candidate that is not authorized in writing by such candidate to do so shall include a notice on the face or front page of all literature and advertisements published in connection with such candidate's campaign by such committee or on its behalf stating that the committee is not authorized by such candidate and that such candidate is not responsible for the activities of such committee.

          (f) Principal campaign committees; one candidate limitation; office of President: national committee for candidate; duties. (1) Each individual who is a candidate for Federal office (other than the office of Vice President of the United States) shall designate a political committee to serve as his principal campaign committee. No political committee may be designated as the principal campaign committee of more than one candidate, except that the candidate for the office of President of the United States nominated by a political party may designate the national committee of such political party as his principal campaign committee. Except as provided in the preceding sentence, no political committee which supports more than one candidate may be designated as a principal campaign committee.

          (2) Notwithstanding any other provision of this subchapter, each report or statement of contributions received or expenditures made by a political committee (other than a principal campaign committee) which is required to be filed with the Commission under this subchapter shall be filed instead with the principal campaign

Page 153

committee for the candidate on whose behalf such contributions are accepted or such expenditures are made.

          (3) It shall be the duty of each principal campaign committee to receive all reports and statements required to be filed with it under paragraph (2) of this subsection and to compile and file such reports and statements, together with its own reports and statements, with the Commission in accordance with the provisions of this subchapter.

s 433. Registration of political committees.

          (a) Statements of organization. Each political committee which anticipates receiving contributions or making expenditures during the calendar year in an aggregate amount exceeding $1,000 shall file with the Commission a statement of organization, within 10 days after its organization or, if later, 10 days after the date on which it has information which causes the committee to anticipate it will receive contributions or make expenditures in excess of $1,000. Each such committee in existence at the date of enactment of this Act shall file a statement of organization with the Commission at such time as it prescribes.

          (b) Contents of statements. The statement of organization shall include

          (1) the name and address of the committee;

          (2) the names, addresses, and relationships of affiliated or connected organizations;

          (3) the area, scope, or jurisdiction of the committee;

          (4) the name, address, and position of the custodian of books and accounts;

          (5) the name, address, and position of other principal officers, including officers and members of the finance committee, if any;

Page 154

          (6) the name, address, office sought, and party affiliation of

          (A) each candidate whom the committee is supporting; and

          (B) any other individual, if any, whom the committee is supporting for nomination for election, or election, to any public office whatever; or, if the committee is supporting the entire ticket of any party, the name of the party;

          (7) a statement whether the committee is a continuing one;

          (8) the disposition of residual funds which will be made in the event of dissolution;

          (9) a listing of all banks, safety deposit boxes, or other repositories used;

          (10) a statement of the reports required to be filed by the committee with State or local officers, and, if so, the names, addresses, and positions of such persons; and

          (11) such other information as shall be required by the Commission.

          (c) Information changes; report. Any change in information previously submitted in a statement of organization shall be reported to the Commission within a 10-day period following the change.

          (d) Disbanding of political committees or contributions and expenditures below prescribed ceiling; notice. Any committee which, after having filed one or more statements of organization, disbands or determines it will no longer receive contributions or make expenditures during the calendar year in an aggregate amount exceeding $1,000 shall so notify the Commission.

          (e) Filing reports and notifications with appropriate principal campaign committees. In the case of a political

Page 155

committee which is not a principal campaign committee, reports and notifications required under this section to be filed with the Commission shall be filed instead with the appropriate principal campaign committee.

s 434. rEPORTS BY POLITICAL COMMITTEES AND CANDIDATes.

          (a) Receipts and expenditures; completion date, exception.

          (1) Except as provided by paragraph (2), each treasurer of a political committee supporting a candidate or candidates for election to Federal office, and each candidate for election to such office, shall file with the Commission reports of receipts and expenditures on forms to be prescribed or approved by it. The reports referred to in the preceding sentence shall be filed as follows:

          (A)(i) In any calendar year in which an individual is a candidate for Federal office and an election for such Federal office is held in such year, such reports shall be filed not later than the 10th day before the date on which such election is held and shall be complete as of the 15th day before the date of such election; except that any such report filed by registered or certified mail must be postmarked not later than the close of the 12th day before the date of such election.

          (ii) Such reports shall be filed not later than the 30th day after the day of such election and shall be complete as of the 20th day after the date of such election.

          (B) In any other calendar year in which an individual is a candidate for Federal office, such reports shall be filed after December 31 of such calendar year, but not later than January 31 of the following calendar year and shall be complete as of the close of the calendar year with respect to which the report is filed.

Page 156

          (C) Such reports shall be filed not later than the 10th day following the close of any calendar quarter in which the candidate or political committee concerned received contributions in excess of $1,000, or made expenditures in excess of $1,000, and shall be complete as of the close of such calendar quarter; except that any such report required to be filed after December 31 of any calendar year with respect to which a report is required to be filed under subparagraph (B) shall be filed as provided in such subparagraph.

          (D) When the last day for filing any quarterly report required by subparagraph (C) occurs within 10 days of an election, the filing of such quarterly report shall be waived and superseded by the report required by subparagraph (A)(i).

          Any contribution of $1,000 or more received after the 15th day, but more than 48 hours, before any election shall be reported within 48 hours after its receipt.

          (2) Each treasurer of a political committee which is not a principal campaign committee shall file the reports required under this section with the appropriate principal campaign committee.

          (3) Upon a request made by a presidential candidate or a political committee which operates in more than one State, or upon its own motion, the Commission may waive the reporting dates set forth in paragraph (1) (other than the reporting date set forth in paragraph (1)(B)), and require instead that such candidate or political committee file reports not less frequently than monthly. The Commission may not require a presidential candidate or a political committee operating in more than one State to file more than 12 reports (not counting any report referred to in paragraph (1)(B)) during any calendar year. If the Commission acts on its own motion

Page 157

under this paragraph with respect to a candidate or a political committee, such candidate or committee may obtain judicial review in accordance with the provisions of chapter 7 of Title 5.

          (b) Contents of reports. Each report under this section shall disclose

          (1) the amount of cash on hand at the beginning of the reporting period;

          (2) the full name and mailing address (occupation and the principal place of business, if any) of each person who has made one or more contributions to or for such committee or candidate (including the purchase of tickets for events such as dinners, luncheons, rallies, and similar fundraising events) within the calendar year in an aggregate amount or value in excess of $100, together with the amount and date of such contributions;

          (3) the total sum of individual contributions made to or for such committee or candidate during the reporting period and not reported under paragraph (2);

          (4) the name and address of each political committee or candidate from which the reporting committee or the candidate received, or to which that committee or candidate made, any transfer of funds, together with the amounts and dates of all transfers;

          (5) each loan to or from any person within the calendar year in an aggregate amount or value in excess of $100, together with the full names and mailing addresses (occupations and the principal places of business, if any) of the lender, endorsers, and guarantors, if any, and the date and amount of such loans;

          (6) the total amount of proceeds from

Page 158

          (A) the sale of tickets to each dinner, luncheon, rally, and other fundraising event;

          (B) mass collections made at such events; and

          (C) sales of items such as political campaign pins, buttons, badges, flags, emblems, hats, banners, literature, and similar materials;

          (7) each contribution, rebate, refund, or other receipt in excess of $100 not otherwise listed under paragraphs (2) through (6);

          (8) the total sum of all receipts by or for such committee or candidate during the reporting period, together with total expenditures less transfers between political committees which support the same candidate and which do not support more than one candidate;

          (9) the identification of each person to whom expenditures have been made by such committee or on behalf of such committee or candidate within the calendar year in an aggregate amount or value in excess of $100, the amount, date, and purpose of each such expenditure and the name and address of, and office sought by, each candidate on whose behalf such expenditure was made;

          (10) the identification of each person to whom an expenditure for personal services, salaries, and reimbursed expenses in excess of $100 has been made, and which is not otherwise reported, including the amount, date, and purpose of such expenditure;

          (11) the total sum of expenditures made by such committee or candidate during the calendar year, together with total receipts less transfers between political committees which support the same candidate and which do not support more than one candidate;

Page 159

          (12) the amount and nature of debts and obligations owed by or to the committee, in such form as the supervisory officer may prescribe and a continuous reporting of their debts and obligations after the election at such periods as the Commission may require until such debts and obligations are extinguished, together with a statement as to the circumstances and conditions under which any such debt or obligation is extinguished and the consideration therefor; and

          (13) such other information as shall be required by the Commission.

          (c) Cumulative reports for calendar year; amounts for unchanged items carried forward; statement of inactive status. The reports required to be filed by subsection (a) of this section shall be cumulative during the calendar year to which they relate, but where there has been no change in an item reported in a previous report during such year, only the amount need be carried forward. If no contributions or expenditures have been accepted or expended during a calendar year, the treasurer of the political committee or candidate shall file a statement to that effect.

          (d) Members of Congress; reporting exemption. This section does not require a Member of the Congress to report, as contributions received or as expenditures made, the value of photographic, matting, or recording services furnished to him by the Senate Recording Studio, the House Recording Studio, or by an individual whose pay is disbursed by the Secretary of the Senate or the Clerk of the House of Representatives and who furnishes such services as his primary duty as an employee of the Senate or House of Representatives, or if such services were paid for by the Republican or Democratic Senatorial Campaign Committee, the Democratic National Congressional

Page 160

Committee, or the National Republican Congressional Committee. This subsection does not apply to such recording services furnished during the calendar year before the year in which the Member's term expires.

          (e) Reports by other than political committees. Every person (other than a political committee or candidate) who makes contributions or expenditures, other than by contribution to a political committee or candidate, in an aggregate amount in excess of $100 within a calendar year shall file with the Commission a statement containing the information required by this section. Statements required by this subsection shall be filed on the dates on which reports by political committees are filed but need not be cumulative.

s 437a. Reports by certain persons; exemptions.

          Any person (other than an individual) who expends any funds or commits any act directed to the public for the purpose of influencing the outcome of an election, or who publishes or broadcasts to the public any material referring to a candidate (by name, description, or other reference) advocating the election or defeat of such candidate, setting forth the candidate's position on any public issue, his voting record, or other official acts (in the case of a candidate who holds or has held Federal office), or otherwise designed to influence individuals to cast their votes for or against such candidate or to withhold their votes from such candidate shall file reports with the Commission as if such person were a political committee. The reports filed by such person shall set forth the source of the funds used in carrying out any activity described in the preceding sentence in the same detail as if the funds were contributions within the meaning of section 431(e) of this title, and payments of such funds in the same detail as if they were expenditures within the meaning of section 431(f) of this title. The pro-

Page 161

visions of this section do not apply to any publication or broadcast of the United States Government or to any news story, commentary, or editorial distributed through the facilities of a broadcasting station or a bona fide newspaper, magazine, or other periodical publication. A news story, commentary, or editorial is not considered to be distributed through a bona fide newspaper, magazine, or other periodical publication if

          (1) such publication is primarily for distribution to individuals affiliated by membership or stock ownership with the person (other than an individual) distributing it or causing it to be distributed, and not primarily for purchase by the public at newsstands or paid by subscription; or

          (2) the news story, commentary, or editorial is distributed by a person (other than an individual) who devotes a substantial part of his activities to attempting to influence the outcome of elections, or to influence public opinion with respect to matters of national or State policy or concern.

s 437c. Federal Election Commission.

          (a) Establishment; membership; term of office; vacancies; qualifications; compensation; chairman and vice chairman.

          (1) There is established a commission to be known as the Federal Election Commission. The Commission is composed of the Secretary of the Senate and the Clerk of the House of Representatives, ex officio and without the right to vote, and six members appointed as follows:

          (A) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the President pro tempore of the Senate upon the recommendations of the majority leader of the Senate and the minority leader of the Senate;

Page 162

          (B) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the Speaker of the House of Representatives, upon the recommendations of the majority leader of the House and the minority leader of the House; and

          (C) two shall be appointed, with the confirmation of a majority of both Houses of the Congress, by the President of the United States.

          A member appointed under subparagraph (A), (B), or (C) shall not be affiliated with the same political party as the other member appointed under such paragraph.

          (2) Members of the Commission shall serve for terms of 6 years, except that of the members first appointed

          (A) one of the members appointed under paragraph (1)(A) shall be appointed for a term ending on the April 30 first occurring more than 6 months after the date on which he is appointed;

          (B) one of the members appointed under paragraph (1)(B) shall be appointed for a term ending 1 year after the April 30 on which the term of the member referred to in subparagraph (A) of this paragraph ends;

          (C) one of the members appointed under paragraph (1)(C) shall be appointed for a term ending 2 years thereafter;

          (D) one of the members appointed under paragraph (1)(A) shall be appointed for a term ending 3 years thereafter;

          (E) one of the members appointed under paragraph (1)(B) shall be appointed for a term ending 4 years thereafter; and

          (F) one of the members appointed under para-

Page 163

          graph (1)(C) shall be appointed for a term ending 5 years thereafter.

          An individual appointed to fill a vacancy occurring other than by the expiration of a term of office shall be appointed only for the unexpired term of the member he succeeds. Any vacancy occurring in the membership of the Commission shall be filled in the same manner as in the case of the original appointment.

          (3) Members shall be chosen on the basis of their maturity, experience, integrity, impartiality, and good judgment and shall be chosen from among individuals who, at the time of their appointment, are not elected or appointed officers or employees in the executive, legislative, or judicial branch of the Government of the United States.

          (4) Members of the Commission (other than the Secretary of the Senate and the Clerk of the House of Representatives) shall receive compensation equivalent to the compensation paid at level IV of the Executive Schedule (5 U.S.C. 5315).

          (5) The Commission shall elect a chairman and a vice chairman from among its members (other than the Secretary of the Senate and the Clerk of the House of Representatives) for a term of one year. No member may serve as chairman more often than once during any term of office to which he is appointed. The chairman and the vice chairman shall not be affiliated with the same political party. The vice chairman shall act as chairman in the absence or disability of the chairman, or in the event of a vacancy in such office.

          (b) Administration, enforcement, and formulation of policy; primary jurisdiction of civil enforcement.

          The Commission shall administer, seek to obtain compliance with, and formulate policy with respect to this Act and sections 608, 610, 611, 613, 614, 615, 616,

Page 164

and 617 of Title 18. The Commission has primary jurisdiction with respect to the civil enforcement of such provisions.

          (c) Voting requirement; nondelegation of function.

          All decisions of the Commission with respect to the exercise of its duties and powers under the provisions of this subchapter shall be made by a majority vote of the members of the Commission. A member of the Commission may not delegate to any person his vote or any decisionmaking authority or duty vested in the Commission by the provisions of this subchapter.

          (d) Meetings.

          The Commission shall meet at least once each month and also at the call of any member.

          (e) Rules for conduct of activities; seal, judicial notice; principal office.

          The Commission shall prepare written rules for the conduct of its activities, shall have an official seal which shall be judicially noticed, and shall have its principal office in or near the District of Columbia (but it may meet or exercise any of its powers anywhere in the United States).

          (f) Staff director and general counsel: appointment and compensation; appointment and compensation of personnel and procurement of intermittent services by staff director; use of assistance, personnel, and facilities of Federal agencies and departments.

          (1) The Commission shall have a staff director and a general counsel who shall be appointed by the Commission. The staff director shall be paid at a rate not to exceed the rate of basic pay in effect for level IV of the Executive Schedule (5 U.S.C. 5315). The general counsel shall be paid at a rate not to exceed the rate of basic pay in effect for level V of the Executive Schedule (5 U.S.C. 5316). With the approval of the

Page 165

Commission, the staff director may appoint and fix the pay of such additional personnel as he considers desirable.

          (2) With the approval of the Commission, the staff director may procure temporary and intermittent services to the same extent as is authorized by section 3109(b) of Title 5, but at rates for individuals not to exceed the daily equivalent of the annual rate of basic pay in effect for grade GS-15 of the general schedule (5 U.S.C. 5332).

          (3) In carrying out its responsibilities under this Act, the Commission shall, to the fullest extent practicable, avail itself of the assistance, including personnel and facilities, of other agencies and departments of the United States Government. The heads of such agencies and departments may make available to the Commission such personnel, facilities, and other assistance, with or without reimbursement, as the Commission may request.

s 437d. Powers of Commission.

          (a) Specific enumeration.

          The Commission has the power

          (1) to require, by special or general orders, any person to submit in writing such reports and answers to questions as the Commission may prescribe; and such submission shall be made within such a reasonable period of time and under oath or otherwise as the Commission may determine;

          (2) to administer oaths or affirmations;

          (3) to require by subpoena, signed by the chairman or the vice chairman, the attendance and testimony of witnesses and the production of all documentary evidence relating to the execution of its duties;

          (4) in any proceeding or investigation, to order testimony to be taken by deposition before any person who is designated by the Commission and has

Page 166

          the power to administer oaths and, in such instances, to compel testimony and the production of evidence in the same manner as authorized under paragraph (3) of this subsection;

          (5) to pay witnesses the same fees and mileage as are paid in like circumstances in the courts of the United States;

          (6) to initiate (through civil proceedings for injunctive, declaratory, or other appropriate relief), defend, or appeal any civil action in the name of the Commission for the purpose of enforcing the provisions of this Act, through its general counsel;

          (7) to render advisory opinions under section 437 of this title;

          (8) to make, amend, and repeal such rules, pursuant to the provisions of chapter 5 of Title 5, as are necessary to carry out the provisions of this Act;

          (9) to formulate general policy with respect to the administration of this Act and sections 608, 610, 611, 613, 614, 615, 616, and 617 of Title 18;

          (10) to develop prescribed forms under subsection (a)(1) of this section; and

          (11) to conduct investigations and hearings expeditiously, to encourage voluntary compliance, and to report apparent violations to the appropriate law enforcement authorities.

          (b) Judicial orders for compliance with subpenas and orders of Commission; contempt of court.

          Any United States district court within the jurisdiction of which any inquiry is carried on, may, upon petition by the Commission, in case of refusal to obey a subpoena or order of the Commission issued under subsection (a) of this section, issue an order requiring compliance therewith. Any failure to obey the order of the

Page 167

court may be punished by the court as a contempt thereof.

          (c) Civil liability for disclosure of information.

          No person shall be subject to civil liability to any person (other than the Commission or the United States) for disclosing information at the request of the Commission.

          (d) Transmittal to Congress: Budget estimates or requests and legislative recommendations; prior transmittal to Congress: legislative recommendations.

          (1) Whenever the Commission submits any budget estimate or request to the President of the United States or the Office of Management and Budget, it shall concurrently transmit a copy of such estimate or request to the Congress.

          (2) Whenever the Commission submits any legislative recommendations, or testimony, or comments on legislation, requested by the Congress or by any Member of the Congress, to the President of the United States or the Office of Management and Budget, it shall concurrently transmit a copy thereof to the Congress or to the Member requesting the same. No officer or agency of the United States shall have any authority to require the Commission to submit its legislative recommendations, testimony, or comments on legislation, to any office or agency of the United States for approval, comments, or review, prior to the submission of such recommendations, testimony, or comments to the Congress.

s 437e. Reports to President and Congress.

          The Commission shall transmit reports to the President of the United States and to each House of the Congress no later than March 31 of each year. Each such report shall contain a detailed statement with respect to the activities of the Commission in carrying out its duties under this subchapter, together with recommendations

Page 168

for such legislative or other action as the Commission considers appropriate.

s 437f. Advisory opinions.

          (a) Written requests; written opinions within reasonable time; specific transactions or activities constituting violations of provisions.

          Upon written request to the Commission by any individual holding Federal office, any candidate for Federal office, or any political committee, the Commission shall render an advisory opinion, in writing, within a reasonable time with respect to whether any specific transaction or activity by such individual, candidate, or political committee would constitute a violation of this Act, of chapter 95 or chapter 96 of Title 26, or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18.

          (b) Presumption of compliance with provisions based on good faith actions.

          Notwithstanding any other provision of law, any person with respect to whom an advisory opinion is rendered under subsection (a) of this section who acts in good faith in accordance with the provisions and findings of such advisory opinion shall be presumed to be in compliance with the provision of this Act, of chapter 95 or chapter 96 of Title 26, or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, with respect to which such advisory opinion is rendered.

          (c) Requests made public; transmittal to Commission of comments of interested parties with respect to such requests.

          Any request made under subsection (a) shall be made public by the Commission. The Commission shall before rendering an advisory opinion with respect to such request, provide any interested party with an opportunity to transmit written comments to the Commission with respect to such request.

Page 169

s 437g. Enforcement.

          (a) Violations; complaints and referrals; notification and investigation by Commission: venue, judicial orders; referral to law enforcement authorities: civil actions by Attorney General: venue, judicial orders, bond; subpenas; review by courts of appeals: time for petition, finality of judgment; review by Supreme Court; docket: advancement and priorities.

          (1)(A) Any person who believes a violation of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, has occurred may file a complaint with the Commission.

          (B) In any case in which the Clerk of the House of Representatives or the Secretary of the Senate (who receive reports and statements as custodian for the Commission) has reason to believe a violation of this act or section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 has occurred he shall refer such apparent violation to the Commission.

          (2) The Commission upon receiving any complaint under paragraph (1)(A), or a referral under paragraph (1)(B), or if it has reason to believe that any person has committed a violation of any such provision, shall notify the person involved of such apparent violation and shall

          (A) report such apparent violation to the Attorney General; or

          (B) make an investigation of such apparent violation.

          (3) Any investigation under paragraph (2)(B) shall be conducted expeditiously and shall include an investigation of reports and statements filed by any complainant under this subchapter, if such complainant is a candidate. Any notification or investigation made under paragraph (2) shall not be made public by the Commission or by

Page 170

any other person without the written consent of the person receiving such notification or the person with respect to whom such investigation is made.

          (4) The Commission shall, at the request of any person who receives notice of an apparent violation under paragraph (2), conduct a hearing with respect to such apparent violation.

          (5) If the Commission determines, after investigation, that there is reason to believe that any person has engaged, or is about to engage in any acts or practices which constitute or will constitute a violation of this Act, it may endeavor to correct such violation by informal methods of conference, conciliation, and persuasion. If the Commission fails to correct the violation through informal methods, it may institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which the person against whom such action is brought is found, resides, or transacts business. Upon a proper showing that such person has engaged or is about to engage in such acts or practices, the court shall grant a permanent or temporary injunction, restraining order, or other order.

          (6) The Commission shall refer apparent violations to the appropriate law enforcement authorities to the extent that violations of provisions of chapter 29 of Title 18 are involved, or if the Commission is unable to correct apparent violations of this Act under the authority given it by paragraph (5), or if the Commission determines that any such referral is appropriate.

          (7) Whenever in the judgment of the Commission, after affording due notice and an opportunity for a hearing, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18,

Page 171

upon request by the Commission the Attorney General on behalf of the United States shall institute a civil action for relief, including a permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district in which the person is found, resides, or transacts business. Upon a proper showing that such person has engaged or is about to engage in such acts or practices, a permanent or temporary injunction, restraining order, or other order shall be granted without bond by such court.

          (8) In any action brought under paragraph (5) or (7) of this subsection, subpenas for witnesses who are required to attend a United States district court may run into any other district.

          (9) Any party aggrieved by an order granted under paragraph (5) or (7) of this subsection may, at any time within 60 days after the date of entry thereof, file a petition with the United States court of appeals for the circuit in which such order was issued for judicial review of such order.

          (10) The judgment of the court of appeals affirming or setting aside, in whole or in part, any such order of the district court shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of Title 28.

          (11) Any action brought under this subsection shall be advanced on the docket of the court in which filed, and put ahead of all other actions (other than other actions brought under this subsection or under section 437h of this title).

          (b) Reports of Attorney General to Commission respecting action taken; reports of Commisson respecting status of referrals.

          In any case in which the Commission refers an apparent violation to the Attorney General, the Attorney

Page 172

General shall respond by report to the Commission with respect to any action taken by the Attorney General regarding such apparent violation. Each report shall be transmitted no later than 60 days after the date the Commission refers any apparent violation, and at the close of every 30-day period thereafter until there is final disposition of such apparent violation. The Commission may from time to time prepare and publish reports on the status of such referrals.

s 437h. Judicial review.

          (a) Actions, including declaratory judgments, for construction of constitutional questions; eligible plaintiffs; certification of such questions to courts of appeals sitting en banc.

          The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United States may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18. The district court immediately shall certify all questions of constitutionality of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.

          (b) Appeal to Supreme Court; time for appeal.

          Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals.

          (c) Advancement on appellate docket and expedited deposition of certified questions.

Page 173

          It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (a) of this section.

s 438. administrative and judicial provisions.

          (a) Federal Election Commission; duties.

          It shall be the duty of the Commission

          (1) Forms. To develop and furnish to the person required by the provisions of this Act prescribed forms for the making of the reports and statements required to be filed with it under this subchapter;

          (2) Manual for uniform bookkeeping and reporting methods. To prepare, publish, and furnish to the person required to file such reports and statements a manual setting forth recommended uniform methods of bookkeeping and reporting;

          (3) Filing, coding, and cross-indexing system. To develop a filing, coding, and cross-indexing system consonant with the purposes of this subchapter;

          (4) Public inspection; copies; sale or use restrictions. To make the reports and statements filed with it available for public inspection and copying, commencing as soon as practicable but not later than the end of the second day following the day during which it was received, and to permit copying of any such report or statement by hand or by duplicating machine, as requested by any person, at the expense of such person: Provided, That any information copied from such reports and statements shall not be sold or utilized by any person for the purpose of soliciting contributions or for any commercial purpose;

          (5) Preservation of reports and statements. To preserve such reports and statements for a period of

Page 174

          10 years from date of receipt, except that reports and statements relating solely to candidates for the House of Representatives shall be preserved for only 5 years from the date of receipt;

          (6) Index of reports and statements; publication in Federal Register. To compile and maintain a cumulative index of reports and statements filed with it, which shall be published in the Federal Register at regular intervals and which shall be available for purchase directly or by mail for a reasonable price;

          (7) Special reports; publication. To prepare and publish from time to time special reports listing those candidates for whom reports were filed as required by this subchapter and those candidates for whom such reports were not filed as so required;

          (8) Audits; investigations. To make from time to time audits and field investigations with respect to reports and statements filed under the provisions of this subchapter, and with respect to alleged failures to file any report or statement required under the provisions of this subchapter;

          (9) Enforcement authorities; reports of violations. To report apparent violations of law to the appropriate law enforcement authorities; and

          (10) Rules and regulations. To prescribe suitable rules and regulations to carry out the provisions of this subchapter, in accordance with the provisions of subsection (c) of this section.

          (b) Commission; duties: national clearinghouse for information; studies, scope, publication, copies to general public at cost. It shall be the duty of the Commission to serve as a national clearinghouse for information in respect to the administration of elections. In carrying out its duties under this subsection, the Commission shall enter into contracts for the purpose of conducting inde-

Page 175

pendent studies of the administration of elections. Such studies shall include, but shall not be limited to, studies of

          (1) the method of selection of, and the type of duties assigned to, officials and personnel working on boards of elections;

          (2) practices relating to the registration of voters; and

          (3) voting and counting methods.

          Studies made under this subsection shall be published by the Commission and copies thereof shall be made available to the general public upon the payment of the cost thereof.

          (c) Proposed rules or regulations; statement, transmittal to Congress; Presidential elections and Congressional elections; "legislative days" defined.

          (1) The Commission, before prescribing any rule or regulation under this section, shall transmit a statement with respect to such rule or regulation to the Senate or the House of Representatives, as the case may be, in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation.

          (2) If the appropriate body of the Congress which receives a statement from the Commission under this subsection does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such rule or regulation. In the case of any rule or regulation proposed to deal with reports or statements required to be filed under this subchapter by a candidate for the office of Presi-

Page 176

          dent of the United States, and by political committees supporting such a candidate both the Senate and the House of Representatives shall have the power to disapprove such proposed rule or regulation. The Commission may not prescribe any rule or regulation which is disapproved under this paragraph.

          (3) If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of Senator, and by political committees supporting such candidate, it shall transmit such statement to the Senate. If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of Representative, Delegate, or Resident Commissioner, and by political committees supporting such candidate, it shall transmit such statement to the House of Representatives. If the Commission proposes to prescribe any rule or regulation dealing with reports or statements required to be filed under this subchapter by a candidate for the office of President of the United States, and by political committees supporting such candidate it shall transmit such statement to the House of Representatives and the Senate.

          (4) For purposes of this subsection, the term "legislative days" does not include, with respect to statements transmitted to the Senate, any calendar day on which the Senate is not in session, and with respect to statements transmitted to the House of Representatives, any calendar day on which the House of Representatives is not in session, and with respect to statements transmitted to both such bodies, any calendar day on which both Houses of the Congress are not in session.

Page 177

          (d) Rules and regulations; issuance; custody of reports and statements; Congressional cooperation.

          (1) The Commission shall prescribe suitable rules and regulations to carry out the provisions of this subchapter, including such rules and regulations as may be necessary to require that

          (A) reports and statements required to be filed under this subchapter by a candidate for the office of Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, and by political committees supporting such candidate, shall be received by the Clerk of the House of Representatives as custodian for the Commission;

          (B) reports and statements required to be filed under this subchapter by a candidate for the office of Senator, and by political committees supporting such candidate, shall be received by the Secretary of the Senate as custodian for the Commission; and

          (C) the Clerk of the House of Representatives and the Secretary of the Senate, as custodians for the Commission, each shall make the reports and statements received by him available for public inspection and copying in accordance with paragraph (4) of subsection (a) of this section, and preserve such reports and statements in accordance with paragraph (5) of subsection (a) of this section.

          (2) It shall be the duty of the Clerk of the House of Representatives and the Secretary of the Senate to cooperate with the Commission in carrying out its duties under this Act and to furnish such services and facilities as may be required in accordance with this section.

Page 178

          § 439. Statements filed with State officers

          (a) "Appropriate State" defined. A copy of each statement required to be filed with the Commission by this subchapter shall be filed with the Secretary of State (or, if there is no office of Secretary of State, the equivalent State officer) of the appropriate State. For purposes of this subsection, the term "appropriate State" means

          (1) for reports relating to expenditures and contributions in connection with the campaign for nomination for election, or election, of a candidate to the office of President or Vice President of the United States, each State in which an expenditure is made by him or on his behalf, and

          (2) for reports relating to expenditures and contributions in connection with the campaign for nomination for election, or election, of a candidate to the office of Senator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, the State in which he seeks election.

          (b) Duties of State officers. It shall be the duty of the Secretary of State, or the equivalent State officer, under subsection (a) of this section

          (1) to receive and maintain in an orderly manner all reports and statements required by this subchapter to be filed with him;

          (2) to preserve such reports and statements for a period of 10 years from date of receipt, except that reports and statements relating solely to candidates for the House of Representatives shall be preserved for only 5 years from the date of receipt;

          (3) to make the reports and statements filed with him available for public inspection and copying during regular office hours, commencing as soon

Page 179

          as practicable but not later than the end of the day during which it was received and to permit copying of any such report or statement by hand or by duplicating machine, requested by any person, at the expense of such person; and

          (4) to compile and maintain current list of all statements or parts of statements pertaining to each candidate.

s 439a. Use of contributed amounts for certain purposes; rules of Commission.

          Amounts received by a candidate as contributions that are in excess of any amount necessary to defray his expenditures, and any other mounts contributed to an individual for the purpose of supporting his activities as a holder of Federal office, may be used by such candidate or individual, as the case may be, to defray any ordinary and necessary expenses incurred by him in connection with his duties as a holder of Federal office, may be contributed by him to any organization described in section 170(c) of Title 26, or may be used for any other lawful purpose. To the extent any such contribution, amount contributed, or expenditure thereof is not otherwise required to be disclosed under the provisions of this subchapter, such contribution, amount contributed, or expenditure shall be fully disclosed in accordance with rules promulgated by the Commission. The Commission is authorized to prescribe such rules as may be necessary to carry out the provisions of this section.

s 441. Penalties for violations.

          (a) Any person who violates any of the provisions of this subchapter shall be fined not more than $1,000 or imprisoned not more than 1 year, or both.

Page 180

          (b) In case of any conviction under this subchapter, where the punishment inflicted does not include imprisonment, such conviction shall be deemed a misdemeanor conviction only.

                            SUBCHAPTER II. GENERAL PROVISIONS

s 454. Partial invalidity.

          If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the validity of the remainder of the Act and the application of such provision to other persons and circumstances shall not be affected thereby.

s 456. Additional enforcement authority.

          (a) Findings, after notice and hearing, or failure to file timely reports; disqualification for prescribed period from candidacy in future Federal elections.

          In any case in which the Commission, after notice and opportunity for a hearing on the record in accordance with section 554 of Title 5, makes a finding that a person who, while a candidate for Federal office, failed to file a report required by subchapter I of this chapter, and such finding is made before the expiration of the time within which the failure to file such report may be prosecuted as a violation of such subchapter I, such person shall be disqualified from becoming a candidate in any future election for Federal office for a period of time beginning on the date of such finding and ending one year after the expiration of the term of the Federal office for which such person was a candidate.

          (b) Judicial review of findings.

          Any finding by the Commission under subsection (a) of this section shall be subject to judicial review in accordance with the provisions of chapter 7 of Title 5.

Page 181

                      TITLE 18. CRIMES AND CRIMINAL PROCEDURE

                CHAPTER 29 ELECTIONS AND POLITICAL ACTIVITIES

s 591. Definitions.

          Except as otherwise specifically provided, when used in this section and in sections 597, 599, 600, 602, 608, 610, 611, 614, 615, and 617 of this title

          (a) "election" means

          (1) a general, special, primary, or runoff election,

          (2) a convention or caucus of a political party held to nominate a candidate,

          (3) a primary election held for the selection of delegates to a national nominating convention of a political party, or

          (4) a primary election held for the expression of a preference for the nomination of persons for election to the office of President;

          (b) a "candidate" means an individual who seeks nomination for election, or election, to Federal office, whether or not such individual is elected, and, for purposes of this paragraph, an individual shall be deemed to seek nomination for election, or election, to Federal office, if he has

          (1) taken the action necessary under the law of a State to qualify himself for nomination for election, or election, or

          (2) received contributions or made expenditures, or has given his consent for any other person to receive contributions or make expenditures, with a view to bringing about his nomination for election, or election, to such office;

          (c) "Federal office" means the office of President or Vice President of the United States, or Senator

Page 182

or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States;

          (d) "political committee" means any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount, exceeding $1,000;

          (e) "contribution"

          (1) means a gift, subscription, loan, advance, or deposit of money or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business, which shall be considered a loan by each endorser or guarantor, in that proportion of the unpaid balance thereof that each endorser or guarantor bears to the total number of endorsers or guarantors), made for the purpose of influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United States;

          (2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make a contribution for such purposes;

          (3) means funds received by a political committee which are transferred to such committee from another political committee or other source;

Page 183

          (4) means the payment, by any person other than a candidate or a political committee, of compensation for the personal services of another person which are rendered to such candidate or political committee without charge for any such purpose; but

          (5) does not include

          (A) the value of services provided without compensation by individuals who volunteer a portion or all of their time on behalf of a candidate or political committee;

          (B) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities;

          (C) the sale of any food or beverage by a vendor for use in a candidate's campaign at a charge less than the normal comparable charge, if such charge for use in a candidate's campaign is at least equal to the cost of such food or beverage to the vendor;

          (D) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate; or

          (E) the payment by a State or local committee of a political party of the costs of preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sam-

Page 184

          ple ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising;

          to the extent that the cumulative value of activities by any person on behalf of any candidate under each of clauses (B), (C), and (D) does not exceed $500 with respect to any election;

          (f) "expenditure"

          (1) means a purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business), made for the purpose of influencing the nomination for election, or election, of any person to Federal office or for the purpose of influencing the results of a primary held for the selection of delegates to a national nominating convention of a political party or for the expression of a preference for the nomination of persons for election to the office of President of the United States;

          (2) means a contract, promise, or agreement, express or implied, whether or not legally enforceable, to make any expenditure; and

          (3) means the transfer of funds by a political committee to another political committee; but

Page 185

          (4) does not include

          (A) any news story, commentary or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate;

          (B) nonpartisan activity designed to encourage individuals to register to vote or to vote;

          (C) any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office;

          (D) the use of real or personal property and the cost of invitations, food, and beverages, voluntarily provided by an individual to a candidate in rendering voluntary personal services on the individual's residential premises for candidate-related activities;

          (E) any unreimbursed payment for travel expenses made by an individual who on his own behalf volunteers his personal services to a candidate;

          (F) any communication by any person which is not made for the purpose of influencing the nomination for election, or election, of any person to Federal office;

          (G) the payment by a State or local committee of a political party of the costs of

Page 186

          preparation, display, or mailing or other distribution incurred by such committee with respect to a printed slate card or sample ballot, or other printed listing, of three or more candidates for any public office for which an election is held in the State in which such committee is organized, except that this clause shall not apply in the case of costs incurred by such committee with respect to a display of any such listing made on broadcasting stations, or in newspapers, magazines or other similar types of general public political advertising;

          (H) any costs incurred by a candidate in connection with the solicitation of contributions by such candidate, except that this clause shall not apply with respect to costs incurred by a candidate in excess of an amount equal to 20 percent of the expenditure limitation applicable to such candidate under section 608(c) of this title; or

          (I) any costs incurred by a political committee (as such term is defined by section 608(b)(2) of this title) with respect to the solicitation of contributions to such political committee or to any general political fund controlled by such political committee, except that this clause shall not apply to exempt costs incurred with respect to the solicitation of contributions to any such political committee made through broadcasting stations, newspapers, magazines, outdoor advertising facilities, and

Page 187

          other similar types of general public political advertising;

          to the extent that the cumulative value of activities by any individual on behalf of any candidate under each of clauses (D) or (E) does not exceed $500 with respect to any election;

          (g) "person" and "whoever" mean an individual, partnership, committee, association, corporation, or any other organization or group of persons;

          (h) "State" means each State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States;

          (i) "political party" means any association, committee, or organization which nominates a candidate for election to any Federal office whose name appears on the election ballot as the candidate of such association, committee, or organization;

          (j) "State committee" means the organization which, by virtue of the bylaws of a political party, is responsible for the day-to-day operation of such political party at the State level, as determined by the Federal Election Commission;

          (k) "national committee" means the organization which, by virtue of the bylaws of the political party, is responsible for the day-to-day operation of such political party at the national level, as determined by the Federal Election Commission established under section 437c(a) of Title 2; and

          (l) "principal campaign committee" means the principal campaign committee designated by a candidate under section 432(f)(1) of Title 2.

s 608. Limitations on contributions and expenditures

          (a) Personal funds of candidate and family.

          (1) No candidate may make expenditures from

Page 188

          his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year for nomination for election, or for election, to Federal office in excess of, in the aggregate

          (A) $50,000, in the case of a candidate for the office of President or Vice President of the United States;

          (B) $35,000, in the case of a candidate for the office of Senator or for the office of Representative from a State which is entitled to only one Representative; or

          (C) $25,000, in the case of a candidate for the office of Representative, or Delegate or Resident Commissioner, in any other State.

          For purposes of this paragraph, any expenditure made in a year other than the calendar year in which the election is held with respect to which such expenditure was made, is considered to be made during the calendar year in which such election is held.

          (2) For purposes of this subsection, "immediate family" means a candidate's spouse, and any child, parent, grandparent, brother, or sister of the candidate, and the spouses of such persons.

          (3) No candidate or his immediate family may make loans or advances from their personal funds in connection with his campaign for nomination for election, or for election, to Federal office unless such loan or advance is evidenced by a written instrument fully disclosing the terms and conditions of such loan or advance.

          (4) For purposes of this subsection, any such loan or advance shall be included in computing the total amount of such expenditures only to the

Page 189

          of the balance of such loan or advance outstanding and unpaid.

          (b) Contributions by persons and committees.

          (1) Except as otherwise provided by paragraphs (2) and (3), no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000.

          (2) No political committee (other than a principal campaign committee) shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $5,000. Contributions by the national committee of a political party serving as the principal campaign committee of a candidate for the office of President of the United States shall not exceed the limitation imposed by the preceding sentence with respect to any other candidate for Federal office. For purposes of this paragraph, the term "political committee" means an organization registered as a political committee under section 433, Title 2, United States Code, for a period of not less than 6 months which has received contributions from more than 50 persons and, except for any State political party organization, has made contributions to 5 or more candidates for Federal office.

          (3) No individual shall make contributions aggregating more than $25,000 in any calendar year. For purposes of this paragraph, any contribution made in a year other than the calendar year in which the election is held with respect to which such contribution was made, is considered to be made during the calendar year in which such election is held.

          (4) For purposes of this subsection

          (A) contributions to a named candidate made

Page 190

          to any political committee authorized by such candidate, in writing, to accept contributions on his behalf shall be considered to be contributions made to such candidate; and

          (B) contributions made to or for the benefit of any candidate nominated by a political party for election to the office of Vice President of the United States shall be considered to be contributions made to or for the benefit of the candidate of such party for election to the office of President of the United States.

          (5) The limitations imposed by paragraphs (1) and (2) of this subsection shall apply separately with respect to each election, except that all elections held in any calendar year for the office of President of the United States (except a general election for such office) shall be considered to be one election.

          (6) For purposes of the limitations imposed by this section, all contributions made by a person, either directly or indirectly, on behalf of a particular candidate, including contributions which are in any way earmarked or otherwise directed through an intermediary or conduit to such candidate, shall be treated as contributions from such person to such candidate. The intermediary or conduit shall report the original source and the intended recipient of such contribution to the Commission and to the intended recipient.

          (c) Limitations on expenditures.

          (1) No candidate shall make expenditures in excess of

          (A) $10,000,000, in the case of a candidate for nomination for election to the office of President of the United States, except that

Page 191

          the aggregate of expenditures under this subparagraph in any one State shall not exceed twice the expenditure limitation applicable in such State to a candidate for nomination for election to the office of Senator, Delegate, or Resident Commissioner, as the case may be;

          (B) $20,000,000, in the case of a candidate for election to the office of President of the United States;

          (C) in the case of any campaign for nomination for election by a candidate for the office of Senator or by a candidate for the office of Representative from a State which is entitled to only one Representative, the greater of

          (i) 8 cents multiplied by the voting age population of the State (as certified under subsection (g)); or

          (ii) $100,000;

          (D) in the case of any campaign for election by a candidate for the office of Senator or by a candidate for the office of Representative from a State which is entitled to only one Representative, the greater of

          (i) 12 cents multiplied by the voting age population of the State (as certified under subsection (g)); or

          (ii) $150,000;

          (E) $70,000, in the case of any campaign for nomination for election, or for election, by a candidate for the office of Representative in any other State, Delegate from the District of Columbia, or Resident Commissioner; or

          (F) $15,000, in the case of any campaign for nomination for election, or for election, by

Page 192

          a candidate for the office of Delegate from Guam or the Virgin Islands.

          (2) For purposes of this subsection

          (A) expenditures made by or on behalf of any candidate nominated by a political party for election to the office of Vice President of the United States shall be considered to be expenditures made by or on behalf of the candidate of such party for election to the office of President of the United States; and

          (B) an expenditure is made on behalf of a candidate, including a vice presidential candidate, if it is made by

          (i) an authorized committee or any other agent of the candidate for the purposes of making any expenditure; or

          (ii) any person authorized or requested by the candidate, an authorized committee of the candidate, or an agent of the candidate, to make the expenditure.

          (3) The limitations imposed by subparagraphs (C), (D), (E), and (F) of paragraph (1) of this subsection shall apply separately with respect to each election.

          (4) The Commission shall prescribe rules under which any expenditure by a candidate for presidential nomination for use in 2 or more States shall be attributed to such candidate's expenditure limitation in each such State, based on the voting age population in such State which can reasonably be expected to be influenced by such expenditure.

          (d) Adjustment of limitations based on price index.

          (1) At the beginning of each calendar year (commencing in 1976), as there become available neces-

Page 193

          sary data from the Bureau of Labor Statistics of the Department of Labor, the Secretary of Labor shall certify to the Commission and publish in the Federal Register the per centum difference between the price index for the 12 months preceding the beginning of such calendar year and the price index for the base period. Each limitation established by subsection (c) and subsection (f) shall be increased by such per centum difference. Each amount so increased shall be the amount in effect for such calendar year.

          (2) For purposes of paragraph (1)

          (A) the term "price index" means the average over a calendar year of the Consumer Price Index (all items United States city average) published monthly by the Bureau of Labor Statistics; and

          (B) the term "base period" means the calendar year 1974.

          (e) Expenditure relative to clearly identified candidate.

          (1) No person may make any expenditure (other than an expenditure made by or on behalf of a candidate within the meaning of subsection (c)(2)(B)) relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000.

          (2) For purposes of paragraph (1)

          (A) "clearly identified" means

          (i) the candidate's name appears;

          (ii) a photograph or drawing of the candidate appears; or

Page 194

          (iii) the identity of the candidate is apparent by unambiguous reference; and

          (B) "expenditure" does not include any payment made or incurred by a corporation or a labor organization which, under the provisions of the last paragraph of section 610, would not constitute an expenditure by such corporation or labor organization.

          (f) Exceptions for national and State committees.

          (1) Notwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions, the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee, may make expenditures in connection with the general election campaign of candidates for Federal office, subject to the limitations contained in paragraphs (2) and (3) of this subsection.

          (2) The national committee of a political party may not make any expenditure in connection with the general election campaign of any candidate for President of the United States who is affiliated with such party which exceeds an amount equal to 2 cents multiplied by the voting age population of the United States (as certified under subsection (g)). Any expenditure under this paragraph shall be in addition to any expenditure by a national committee of a political party serving as the principal campaign committee of a candidate for the office of President of the United States.

          (3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for

Page 195

          Federal office in a State who is affiliated with such party which exceeds

          (A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of

          (i) 2 cents multiplied by the voting age population of the State (as certified under subsection (g)); or

          (ii) $20,000; and

          (B) in the case of a candidate for election to the office of Representative, Delegate, or Resident Commissioner in any other State, $10,000.

          (g) Voting age population estimates. During the first week of January 1975, and every subsequent year, the Secretary of Commerce shall certify to the Commission and publish in the Federal Register an estimate of the voting age population of the United States, of each State, and of each congressional district as of the first day of July next preceding the date of certification. The term "voting age population" means resident population, 18 years of age or older.

          (h) Knowing violations. No candidate or political committee shall knowingly accept any contribution or make any expenditure in violation of the provisions of this section. No officer or employee of a political committee shall knowingly accept a contribution made for the benefit or use of a candidate, or knowingly make any expenditure on behalf of a candidate, in violation of any limitation imposed on contributions and expenditures under this section.

          (i) Penalties. Any person who violates any provision of this section shall be fined not more than $25,000 or imprisoned not more than 1 year, or both.

(§ 609. Repealed.)

Page 196

s 610. Contributions or expenditures by national banks, corporations or labor organizations.

          It is unlawful for any national bank, or any corporation organized by authority of any law of Congress, to make a contribution or expenditure in connection with any election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, or for any corporation whatever, or any labor organization to make a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices, or for any candidate, political committee, or other person to accept or receive any contribution prohibited by this section.

          Every corporation or labor organization which makes any contribution or expenditure in violation of this section shall be fined not more than $25,000; and every officer or director of any corporation, or officer of any labor organization, who consents to any contribution or expenditure by the corporation or labor organization, as the case may be, and any person who accepts or receives any contribution, in violation of this section, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both; and if the violation was willful, shall be fined not more than $50,000 or imprisoned not more than 2 years or both.

          For the purposes of this section "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exist for the purpose,

Page 197

in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.

          As used in this section, the phrase "contribution or expenditure" shall include any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value (except a loan of money by a national or State bank made in accordance with the applicable banking laws and regulations and in the ordinary course of business) to any candidate, campaign committee, or political party or organization, in connection with any election to any of the offices referred to in this section; but shall not include communications by a corporation to its stockholders and their families or by a labor organization to its members and their families on any subject; nonpartisan registration and get-out-the-vote campaigns by a corporation aimed at its stockholders and their families, or by a labor organization aimed at its members and their families; the establishment, administration, and solicitation of contributions to a separate segregated fund to be utilized for political purposes by a corporation or labor organization: Provided, That it shall be unlawful for such a fund to make a contribution or expenditure by utilizing money or anything of value secured by physical force, job discrimination, financial reprisals, or the threat of force, job discrimination, or financial reprisal; or by dues, fees, or other monies required as a condition of membership in a labor organization or as a condition of employment, or by monies obtained in any commercial transaction.

s 611. Contributions by Government contractors.

          Whoever

          (a) entering into any contract with the United States or any department or agency thereof either

Page 198

          for the rendition of personal services or furnishing any material, supplies, or equipment to the United States or any department or agency thereof or for selling any land or building to the United States or any department or agency thereof, if payment for the performance of such contract or payment for such material, supplies, equipment, land, or building is to be made in whole or in part from funds appropriated by the Congress, at any time between the commencement of negotiations for and the later of

          (1) the completion of performance under, or

          (2) the termination of negotiations for, such contract or furnishing of material, supplies, equipment, land or buildings,

          directly or indirectly makes any contribution of money or other thing of value, or promises expressly or impliedly to make any such contribution, to any political party, committee, or candidate for public office or to any person for any political purpose or use; or

          (b) knowingly solicits any such contribution from any such person for any such purpose during any such period;

          shall be fined not more than $25,000 or imprisoned not more than 5 years, or both.

          This section does not prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, any separate segregated fund by any corporation or labor organization for the purpose of influencing the nomination for election, or election, of any person to Federal office, unless the provisions of section 610 of this title prohibit or make unlawful the establishment or administration of, or the solicitation of contributions to, such fund.

          For purposes of this section, the term "labor organi-

Page 199

zation" has the meaning given it by section 610 of this title.

s 6096. Designation by individuals.

          (a) In general. Every individual (other than a nonresident alien) whose income tax liability for the taxable year is $1 or more may designate that $1 shall be paid over to the Presidential Election Campaign Fund in accordance with the provisions of section 9006(a). In the case of a joint return of husband and wife having an income tax liability of $2 or more, each spouse may designate that $1 shall be paid to the fund.

          (b) Income tax liability. For purposes of subsection (a), the income tax liability for an individual for any taxable year is the amount of the tax imposed by chapter 1 on such individual for such taxable year (as shown on his return), reduced by the sum of the credits (as shown in his return) allowable under sections 33, 37, 38, 40, and 41.

          (c) Manner and time of designation. A designation under subsection (a) may be made with respect to any taxable year

          (1) at the time of filing the return of the tax imposed by chapter 1 for such taxable year, or

          (2) at any other time (after the time of filing the return of the tax imposed by chapter 1 for such taxable year) specified in regulations prescribed by the Secretary or his delegate.

          Such designation shall be made in such manner as the Secretary or his delegate prescribes by regulations except that, if such designation is made at the time of filing the return of the tax imposed by chapter 1 for such taxable year, such designation shall be made either on the

Page 200

first page of the return or on the page bearing the taxpayer's signature.

              CHAPTER 95 PRESIDENTIAL ELECTION CAMPAIGN FUND

s 9001. Short title.

          This chapter may be cited as the "Presidential Election Campaign Fund Act."

s 9002. Definitions.

          For purposes of this chapter

          (1) The term "authorized committee" means, with respect to the candidates of a political party for President and Vice President of the United States, any political committee which is authorized in writing by such candidates to incur expenses to further the election of such candidates. Such authorization shall be addressed to the chairman of such political committee, and a copy of such authorization shall be filed by such candidates with the Commission. Any withdrawal of any authorization shall also be in writing and shall be addressed and filed in the same manner as the authorization.

          (2) The term "candidate" means, with respect to any presidential election, an individual who

          (A) has been nominated for election to the office of President of the United States or the office of Vice President of the United States by a major party, or

          (B) has qualified to have his name on the election ballot (or to have the names of electors pledged to him on the election ballot) as the candidate of a political party for election to either such office in 10 or more States.

          For purposes of paragraphs (6) and (7) of this section and purposes of section 9004(a)(2), the term "candidate" means, with respect to any preceding presidential

Page 201

election, an individual who received popular votes for the office of President in such election.

          (3) The term "Commission" means the Federal Election Commission established by section 437c(a)(1) of Title 2, United States Code.

          (4) The term "eligible candidates" means the candidates of a political party for President and Vice President of the United States who have met all applicable conditions for eligibility to receive payments under this chapter set forth in section 9003.

          (5) The term "fund" means the Presidential Election Campaign Fund established by section 9006(a).

          (6) The term "major party" means, with respect to any presidential election, a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 25 percent or more of the total number of popular votes received by all candidates for such office.

          (7) The term "minor party" means, with respect to any presidential election, a political party whose candidate for the office of President in the preceding presidential election received, as the candidate of such party, 5 percent or more but less than 25 percent of the total number of popular votes received by all candidates for such office.

          (8) The term "new party" means, with respect to any presidential election, a political party which is neither a major party nor a minor party.

          (9) The term "political committee" means any committee, association, or organization (whether or not incorporated) which accepts contributions or makes expenditures for the purpose of influencing, or attempting to influence, the nomination or election of one or more individuals to Federal, State, or local elective public office.

Page 202

          (10) The term "presidential election" means the election of presidential and vice-presidential electors.

          (11) The term "qualified campaign expense" means an expense

          (A) incurred

          (i) by the candidate of a political party for the office of President to further his election to such office or to further the election of the candidate of such political party for the office of Vice President, or both,

          (ii) by the candidate of a political party for the office of Vice President to further his election to such office or to further the election of the candidate of such political party for the office of President, or both, or

          (iii) by an authorized committee of the candidates of a political party for the offices of President and Vice President to further the election of either or both of such candidates to such offices;

          (B) incurred within the expenditure report period (as defined in paragraph (12)), or incurred before the beginning of such period to the extent such expense is for property, services, or facilities used during such period; and

          (C) neither the incurring nor payment of which constitutes a violation of any law of the United States or of the State in which such expense is incurred or paid.

          An expense shall be considered as incurred by a candidate or an authorized committee if it is incurred by a person authorized by such candidate or such committee, as the case may be, to incur such expense on behalf of such candidate or such committee. If an authorized committee of the candidates of a political party for

Page 203

President and Vice President of the United States also incurs expenses to further the election of one or more other individuals to Federal, State, or local elective public office, expenses incurred by such committee which are not specifically to further the election of such other individual or individuals shall be considered as incurred to further the election of such candidates for President and Vice President in such proportion as the Commission prescribes by rules or regulations.

          (12) The term "expenditure report period" with respect to any presidential election means

          (A) in the case of a major party, the period beginning with the first day of September before the election, or, if earlier, with the date on which such major party at its national convention nominated its candidate for election to the office of President of the United States, and ending 30 days after the date of the presidential election; and

          (B) in the case of a party which is not a major party, the same period as the expenditure report period of the major party which has the shortest expenditure report period for such presidential election under subparagraph (A).

s 9003. Condition for eligibility for payments.

          (a) In general. In order to be eligible to receive any payments under section 9006, the candidates of a political party in a presidential election shall, in writing

          (1) agree to obtain and furnish to the Commission such evidence as it may request of the qualified campaign expenses of such candidates;

          (2) agree to keep and furnish to the Commission such records, books, and other information as it may request; and

          (3) agree to an audit and examination by the

Page 204

          Commission under section 9007 and to pay any amounts required to be paid under such section.

          (b) Major parties. In order to be eligible to receive any payments under section 9006, the candidates of a major party in a presidential election shall certify to the Commission, under penalty of perjury, that

          (1) such candidates and their authorized committees will not incur qualified campaign expenses in excess of the aggregate payments to which they will be entitled under section 9004; and

          (2) no contributions to defray qualified campaign expenses have been or will be accepted by such candidates or any of their authorized committees except to the extent necessary to make up any deficiency in payments received out of the fund on account of the application of section 9006(d), and no contributions to defray expenses which would be qualified campaign expenses but for subparagraph (C) of section 9002(11) have been or will be accepted by such candidates or any of their authorized committees.

          Such certification shall be made within such time prior to the day of the presidential election as the Commission shall prescribe by rules or regulations.

          (c) Minor and new parties. In order to be eligible to receive any payments under section 9006, the candidates of a minor or new party in a presidential election shall certify to the Commission, under penalty of perjury, that

          (1) such candidates and their authorized committees will not incur qualified campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party are entitled under section 9004; and

Page 205

          (2) such candidates and their authorized committees will accept and expend or retain contributions to defray qualified campaign expenses only to the extent that the qualified campaign expenses incurred by such candidates and their authorized committees certified to under paragraph (1) exceed the aggregate payments received by such candidates out of the fund pursuant to section 9006.

          Such certification shall be made within such time prior to the day of the presidential election as the Commission shall prescribe by rules or regulations.

s 9004. Entitlement of eligible candidates to payments.

          (a) In general. Subject to the provisions of this chapter

          (1) The eligible candidates of each major party in a presidential election shall be entitled to equal payments under section 9006 in an amount which, in the aggregate, shall not exceed the expenditure limitations applicable to such candidates under section 608(c)(1)(B) of Title 18, United States Code.

          (2)(A) The eligible candidates of a minor party in a presidential election shall be entitled to payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed under paragraph (1) for a major party as the number of popular votes received by the candidate for President of the minor party, as such candidate, in the preceding presidential election bears to the average number of popular votes received by the candidates for President of the major parties in the preceding presidential election.

          (B) If the candidate of one or more political parties (not including a major party) for the office of President was a candidate for such office in the preceding presidential election and received 5 per-

Page 206

          cent or more but less than 25 percent of the total number of popular votes received by all candidates for such office, such candidate and his running mate for the office of Vice President, upon compliance with the provisions of section 9003(a) and (c), shall be treated as eligible candidates entitled to payments under section 9006 in an amount computed as provided in subparagraph (A) by taking into account all the popular votes received by such candidate for the office of President in the preceding presidential election. If eligible candidates of a minor party are entitled to payments under this subparagraph, such entitlement shall be reduced by the amount of the entitlement allowed under subparagraph (A).

          (3) The eligible candidates of a minor party or a new party in a presidential election whose candidate for President in such election receives, as such candidate, 5 percent or more of the total number of popular votes cast for the office of President in such election shall be entitled to payments under section 9006 equal in the aggregate to an amount which bears the same ratio to the amount allowed under paragraph (1) for a major party as the number of popular votes received by such candidate in such election bears to the average number of popular votes received in such election by the candidates for President of the major parties. In the case of eligible candidates entitled to payments under paragraph (2), the amount allowable under this paragraph shall be limited to the amount, if any, by which the entitlement under the preceding sentence exceeds the amount of the entitlement under paragraph (2).

          (b) Limitations. The aggregate payments to which the eligible candidates of a political party shall be en-

Page 207

titled under subsections (a)(2) and (3) with respect to a presidential election shall not exceed an amount equal to the lower of

          (1) the amount of qualified campaign expenses incurred by such eligible candidates and their authorized committees, reduced by the amount of contributions to defray qualified campaign expenses received and expended or retained by such eligible candidates and such committees; or

          (2) the aggregate payments to which the eligible candidates of a major party are entitled under subsection (a)(1), reduced by the amount of contributions described in paragraph (1) of this subsection.

          (c) Restrictions. The eligible candidates of a political party shall be entitled to payments under subsection (a) only

          (1) to defray qualified campaign expenses incurred by such eligible candidates or their authorized committees; or

          (2) to repay loans the proceeds of which were used to defray such qualified campaign expenses, or otherwise to restore funds (other than contributions to defray qualified campaign expenses received and expended by such candidates or such committees) used to defray such qualified campaign expenses.

s 9005. Certification by Commission.

          (a) Initial certifications. Not later than 10 days after the candidates of a political party for President and Vice President of the United States have met all applicable conditions for eligibility to receive payments under this chapter set forth in section 9003, the Commission shall certify to the Secretary for payment to such eligible candidates under section 9006 payment in full of amounts to which such candidates are entitled under section 9004.

Page 208

          (b) Finality of certifications and determinations. Initial certifications by the Commission under subsection (a), and all determinations made by it under this chapter shall be final and conclusive, except to the extent that they are subject to examination and audit by the Commission under section 9007 and judicial review under section 9011.

s 9006. Payments to eligible candidates.

          (a) Establishment of campaign fund. There is hereby established on the books of the Treasury of the United States a special fund to be known as the "Presidential Election Campaign Fund." The Secretary shall, from time to time, transfer to the fund an amount not in excess of the sum of the amounts designated (subsequent to the previous Presidential election) to the fund by individuals under section 6096. There is appropriated to the fund for each fiscal year, out of amounts in the general fund of the Treasury not otherwise appropriated, an amount equal to the amounts so designated during each fiscal year, which shall remain available to the fund without fiscal year limitation.

          (b) Transfer to the general fund. If, after a Presidential election and after all eligible candidates have been paid the amount which they are entitled to receive under this chapter, there are moneys remaining in the fund, the Secretary shall transfer the moneys so remaining to the general fund of the Treasury.

          (c) Payments from the fund. Upon receipt of a certification from the Commission under section 9005 for payment to the eligible candidates of a political party, the Secretary shall pay to such candidates out of the fund the amount certified by the Commission. Amounts paid to any such candidates shall be under the control of such candidates.

          (d) Insufficient amounts in fund. If at the time of a-

Page 209

ertification by the Commission under section 9005 for payment to the eligible candidates of a political party, the Secretary or his delegate determines that the moneys in the fund are not, or may not be, sufficient to satisfy the full entitlements of the eligible candidates of all political parties, he shall withhold from such payment such amount as he determines to be necessary to assure that the eligible candidates of each political party will receive their pro rata share of their full entitlement. Amounts withheld by reason of the preceding sentence shall be paid when the Secretary or his delegate determines that there are sufficient moneys in the fund to pay such amounts, or portions thereof, to all eligible candidates from whom amounts have been withheld, but, if there are not sufficient moneys in the fund to satisfy the full entitlement of the eligible candidates of all political parties, the amounts so withheld shall be paid in such manner that the eligible candidates of each political party receive their pro rata share of their full entitlement.

s 9007. Examinations and audits; repayments.

          (a) Examinations and audits. After each presidential election, the Commission shall conduct a thorough examination and audit of the qualified campaign expenses of the candidates of each political party for President and Vice President.

          (b) Repayments.

          (1) If the Commission determines that any portion of the payments made to the eligible candidates of a political party under section 9006 was in excess of the aggregate payments to which candidates were entitled under section 9004, it shall so notify such candidates, and such candidates shall pay to the Secretary an amount equal to such portion.

          (2) If the Commission determines that the eligible candidates of a political party and their authorized

Page 210

          committees incurred qualified campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party were entitled under section 9004, it shall notify such candidates of the amount of such excess and such candidates shall pay to the Secretary an amount equal to such amount.

          (3) If the Commission determines that the eligible candidates of a major party or any authorized committee of such candidates accepted contributions (other than contributions to make up deficiencies in payments out of the fund on account of the application of section 9006(d)) to defray qualified campaign expenses (other than qualified campaign expenses with respect to which payment is required under paragraph (2)), it shall notify such candidates of the amount of the contributions so accepted, and such candidates shall pay to the Secretary an amount equal to such amount.

          (4) If the Commission determines that any amount of any payment made to the eligible candidates of a political party under section 9006 was used for any purpose other than

          (A) to defray the qualified campaign expenses with respect to which such payment was made; or

          (B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used to defray such qualified campaign expenses,

          it shall notify such candidates of the amount so used, and such candidates shall pay to the Secretary an amount equal to such amount.

          (5) No payment shall be required from the eligi-

Page 211

          ble candidates of a political party under this subsection to the extent that such payment, when added to other payments required from such candidates under this subsection, exceeds the amount of payments received by such candidates under section 9006.

          (c) Notification. No notification shall be made by the Commission under subsection (b) with respect to a presidential election more than 3 years after the day of such election.

          (d) Deposit of repayments. All payments received by the Secretary under subsection (b) shall be deposited by him in the general fund of the Treasury.

s 9008. Payments for presidential nominating conventions.

          (a) Establishment of accounts. The Secretary shall maintain in the fund, in addition to any account which he maintains under section 9006(a), a separate account for the national committee of each major party and minor party. The Secretary shall deposit in each such account an amount equal to the amount which each such committee may receive under subsection (b). Such deposits shall be drawn from amounts designated by individuals under section 6096 and shall be made before any transfer is made to any account for any eligible candidate under section 9006(a).

          (b) Entitlement to payments from the fund.

          (1) Major parties. Subject to the provisions of this section, the national committee of a major party shall be entitled to payments under paragraph (3), with respect to any presidential nominating convention, in amounts which, in the aggregate, shall not exceed $2 million.

          (2) Minor parties. Subject to the provisions of this section, the national committee of a minor party

Page 212

          shall be entitled to payments under paragraph (3), with respect to any presidential nominating convention, in amounts which, in the aggregate, shall not exceed an amount which bears the same ratio to the amount the national committee of a major party is entitled to receive under paragraph (1) as the number of popular votes received by the candidate for President of the minor party, as such candidate, in the preceding presidential election bears to the average number of popular votes received by the candidates for President of the United States of the major parties in the preceding presidential election.

          (3) Payments. Upon receipt of certification from the Commission under subsection (g), the Secretary shall make payments from the appropriate account maintained under subsection (a) to the national committee of a major party or minor party which elects to receive its entitlement under this subsection. Such payments shall be available for use by such committee in accordance with the provisions of subsection (c).

          (4) Limitation. Payments to the national committee of a major party or minor party under this subsection from the account designated for such committee shall be limited to the amounts in such account at the time of payment.

          (5) Adjustment of entitlements. The entitlements established by this subsection shall be adjusted in the same manner as expenditure limitations established by section 608(c) and section 608(f) of Title 18, United States Code, are adjusted pursuant to the provisions of section 608(d) of such title.

          (c) Use of funds. No part of any payment made under subsection (b) shall be used to defray the expenses

Page 213

of any candidate or delegate who is participating in any presidential nominating convention. Such payments shall be used only

          (1) to defray expenses incurred with respect to a presidential nominating convention (including the payment of deposits) by or on behalf of the national committee receiving such payments; or

          (2) to repay loans the proceeds of which were used to defray such expenses, or otherwise to restore funds (other than contributions to defray such expenses received by such committee) used to defray such expenses.

          (d) Limitation of expenditures.

          (1) Major parties. Except as provided by paragraph (3), the national committee of a major party may not make expenditures with respect to a presidential nominating convention which, in the aggregate, exceed the amount of payments to which such committee is entitled under subsection (b)(1).

          (2) Minor parties. Except as provided by paragraph (3), the national committee of a minor party may not make expenditures with respect to a presidential nominating convention which, in the aggregate, exceed the amount of the entitlement of the national committee of a major party under subsection (b)(1).

          (3) Exception. The Commission may authorize the national committee of a major party or minor party to make expenditures which, in the aggregate, exceed the limitation established by paragraph (1) or paragraph (2) of this subsection. Such authorization shall be based upon a determination by the Commission that, due to extraordinary and unforeseen circumstances, such expenditures are necessary

Page 214

          to assure the effective operation of the presidential nominating convention by such committee.

          (e) Availability of payments. The national committee of a major party or minor party may receive payments under subsection (b)(3) beginning on July 1 of the calendar year immediately preceding the calendar year in which a presidential nominating convention of the political party involved is held.

          (f) Transfer to the fund. If, after the close of a presidential nominating convention and after the national committee of the political party involved has been paid the amount which it is entitled to receive under this section, there are moneys remaining in the account of such national committee, the Secretary shall transfer the moneys so remaining to the fund.

          (g) Certification by Commission. Any major party or minor party may file a statement with the Commission in such form and manner and at such times as it may require, designating the national committee of such party. Such statement shall include the information required by section 433(b) of Title 2, United States Code, together with such additional information as the Commission may require. Upon receipt of a statement filed under the preceding sentences, the Commission promptly shall verify such statement according to such procedures and criteria as it may establish and shall certify to the Secretary for payment in full to any such committee of amounts to which such committee may be entitled under subsection (b). Such certifications shall be subject to an examination and audit which the Commission shall conduct no later than December 31 of the calendar year in which the presidential nominating convention involved is held.

          (h) Repayments. The Commission shall have the same authority to require payments from the national

Page 215

committee of a major party or a minor party as it has with respect to repayments from any eligible candidate under section 9007(b). The provisions of section 9007(c) and section 9007(d) shall apply with respect to any repayment required by the Commission under this subsection.

s 9009. Reports to Congress; regulations.

          (a) Reports. The Commission shall, as soon as practicable after each presidential election, submit a full report to the Senate and House of Representatives setting forth

          (1) the qualified campaign expenses (shown in such detail as the Commission determines necessary) incurred by the candidates of each political party and their authorized committees;

          (2) the amounts certified by it under section 9005 for payment to eligible candidates of each political party;

          (3) the amount of payments, if any, required from such candidates under section 9007, and the reasons for each payment required;

          (4) the expenses incurred by the national committee of a major party or minor party with respect to a presidential nominating convention;

          (5) the amounts certified by it under section 9008(g) for payment to each such committee; and

          (6) the amount of payments, if any, required from such committees under section 9008(h) and the reasons for each such payment.

          Each report submitted pursuant to this section shall be printed as a Senate document.

          (b) Regulations, etc. The Commission is authorized to prescribe such rules and regulations in accordance with the provisions of subsection (c), to conduct such

Page 216

examinations and audits (in addition to the examination and audits required by section 9007(a)), to conduct such investigations, and to require the keeping and submission of such books, records, and information, as it deems necessary to carry out the functions and duties imposed on it by this chapter.

          (c) Review of regulations.

          (1) The Commission, before prescribing any rule or regulation under subsection (b), shall transmit a statement with respect to such rule or regulation to the Senate and to the House of Representatives, in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation.

          (2) If either such House does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may prescribe such rule or regulation. The Commission may not prescribe any rule or regulation which is disapproved by either such House under this paragraph.

          (3) For purposes of this subsection, the term "legislative days" does not include any calendar day on which both Houses of the Congress are not in session.

s 9010. Participation by commission in judicial proceedings.

          (a) Appearance by counsel. The Commission is authorized to appear in and defend against any action filed under section 9011, either by attorneys employed in its office or by counsel whom it may appoint without regard to the provisions of Title 5, United States Code, governing appointments in the competitive service, and

Page 217

whose compensation it may fix without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title.

          (b) Recovery of certain payments. The Commission is authorized through attorneys and counsel described in subsection (a) to appear in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary as a result of examination and audit made pursuant to section 9007.

          (c) Declaratory and injunctive relief. The Commission is authorized through attorneys and counsel described in subsection (a) to petition the courts of the United States for declaratory or injunctive relief concerning any civil matter covered by the provisions of this subtitle or section 6096. Upon application of the Commission an action brought pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28, United States Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited.

          (d) Appeal. The Commission is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section.

s 9011. Judicial review.

          (a) Review of certification, determination, or other action by the Commission. Any certification, determination, or other action by the Commission made or taken pursuant to the provisions of this chapter shall be subject to review by the United States Court of Appeals for

Page 218

the District of Columbia upon petition filed in such Court by any interested person. Any petition filed pursuant to this section shall be filed within 30 days after the certification, determination, or other action by the Commission for which review is sought.

          (b) Suits to implement chapter.

          (1) The Commission, the national committee of any political party, and individuals eligible to vote for President are authorized to institute such actions, including actions for declaratory judgment or injunctive relief, as may be appropriate to implement or contrue ¹ any provisions of this chapter.

          (2) The district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this subsection and shall exercise the same without regard to whether a person asserting rights under provisions of this subsection shall have exhausted any administrative or other remedies that may be provided at law. Such proceedings shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28, United States Code, and any appeal shall lie to the Supreme Court. It shall be the duty of the judges designated to hear the case to assign the case for hearing at the earliest practicable date, to participate in the hearing and determination thereof, and to cause the case to be in every way expedited.

s 9012. Criminal penalties.

          (a) Excess expenses.

          (1) It shall be unlawful for an eligible candidate of a political party for President and Vice President in a presidential election or any of his authorized committees knowingly and willfully to incur quali-

Page 219

          fied campaign expenses in excess of the aggregate payments to which the eligible candidates of a major party are entitled under section 9004 with respect to such election. It shall be unlawful for the national committee of a major party or minor party knowingly and willfully to incur expenses with respect to a presidential nominating convention in excess of the expenditure limitation applicable with respect to such committee under section 9008(d), unless the incurring of such expenses is authorized by the Commission under section 9008(d)(3).

          (2) Any person who violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year or both. In the case of a violation by an authorized committee, any officer or member of such committee who knowingly and willfully consents to such violation shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.

          (b) Contributions.

          (1) It shall be unlawful for an eligible candidate of a major party in a presidential election or any of his authorized committees knowingly and willfully to accept any contribution to defray qualified campaign expenses, except to the extent necessary to make up any deficiency in payments received out of the fund on account of the application of section 9006(d), or to defray expenses which would be qualified campaign expenses but for subparagraph (C) of section 9002(11).

          (2) It shall be unlawful for an eligible candidate of a political party (other than a major party) in a presidential election or any of his authorized committees knowingly and willfully to accept and expend or retain contributions to defray qualified

Page 220

          campaign expenses in an amount which exceeds the qualified campaign expenses incurred with respect to such election by such eligible candidate and his authorized committees.

          (3) Any person who violates paragraph (1) or (2) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both. In the case of a violation by an authorized committee, any officer or member of such committee who knowingly and willfully consents to such violation shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.

          (c) Unlawful use of payments.

          (1) It shall be unlawful for any person who receives any payment under section 9006, or to whom any portion of any payment received under such section is transferred, knowingly and willfully to use, or authorize the use of, such payment or such portion for any purpose other than

          (A) to defray the qualified campaign expenses with respect to which such payment was made; or

          (B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray such qualified campaign expenses.

          (2) It shall be unlawful for the national committee of a major party or minor party which receives any payment under section 9008(b)(3) to use, or authorize the use of, such payment for any purpose other than a purpose authorized by section 9008(c).

          (3) Any person who violates paragraph (1) shall

Page 221

          be fined not more than $10,000, or imprisoned not more than 5 years, or both.

          (d) False statements, etc.

          (1) It shall be unlawful for any person knowingly and willfully

          (A) to furnish any false, fictitious, or fraudulent evidence, books, or information to the Commission under this subtitle, or to include in any evidence, books, or information so furnished any misrepresentation of a material fact, or to falsify or conceal any evidence, books, or information relevant to a certification by the Commission or an examination and audit by the Commission under this chapter; or

          (B) to fail to furnish to the Commission any records, books, or information requested by it for purposes of this chapter.

          (2) Any person who violates paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.

          (e) Kickbacks and illegal payments.

          (1) It shall be unlawful for any person knowingly and willfully to give or accept any kickback or any illegal payment in connection with any qualified campaign expense of eligible candidates or their authorized committees. It shall be unlawful for the national committee of a major party or minor party knowingly and willfully to give or accept any kickback or any illegal payment in connection with any expense incurred by such committee with respect to a presidential nominating convention.

          (2) Any person who violates paragraph (1) shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.

Page 222

          (3) In addition to the penalty provided by paragraph (2), any person who accepts any kickback or illegal payment in connection with any qualified campaign expense of eligible candidates or their authorized committees, or in connection with any expense incurred by the national committee of a major party or minor party with respect to a presidential nominating convention, shall pay to the Secretary, for deposit in the general fund of the Treasury, an amount equal to 125 percent of the kickback or payment received.

          (f) Unauthorized expenditures and contributions.

          (1) Except as provided in paragraph (2), it shall be unlawful for any political committee which is not an authorized committee with respect to the eligible candidates of a political party for President and Vice President in a presidential election knowingly and willfully to incur expenditures to further the election of such candidates, which would constitute qualified campaign expenses if incurred by an authorized committee of such candidates, in an aggregate amount exceeding $1,000.

          (2) This subsection shall not apply to

          (A) expenditures by a broadcaster regulated by the Federal Communications Commission, or by a periodical publication, in reporting the news or in taking editorial positions; or

          (B) expenditures by any organization described in section 501(c) which is exempt from tax under section 501(a) in communicating to its members the views of that organization.

          (3) Any political committee which violates paragraph (1) shall be fined not more than $5,000, and any officer or member of such committee who knowingly and willfully consents to such violation and

Page 223

          any other individual who knowingly and willfully violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.

          (g) Unauthorized disclosure of information.

          (1) It shall be unlawful for any individual to disclose any information obtained under the provisions of this chapter except as may be required by law.

          (2) Any person who violates paragraph (1) shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.

    CHAPTER 96 PRESIDENTIAL PRIMARY MATCHING PAYMENT ACCOUNT

s 9031. Short title.

          This chapter may be cited as the "Presidential Primary Matching Payment Account Act."

s 9032. Definitions.

          For the purposes of this chapter

          (1) The term "authorized committee" means, with respect to the candidates of a political party for President and Vice President of the United States, any political committee which is authorized in writing by such candidates to incur expenses to further the election of such candidates. Such authorization shall be addressed to the chairman of such political committee, and a copy of such authorization shall be filed by such candidates with the Commission. Any withdrawal of any authorization shall also be in writing and shall be addressed and filed in the same manner as the authorization.

          (2) The term "candidate" means an individual who seeks nomination for election to be President of the United States. For purposes of this

Page 224

          an individual shall be considered to seek nomination for election if he

          (A) takes the action necessary under the law of a State to qualify himself for nomination for election;

          (B) receives contributions or incurs qualified campaign expenses; or

          (C) gives his consent for any other person to receive contributions or to incur qualified campaign expenses on his behalf.

          (3) The term "Commission" means the Federal Election Commission established by section 437c(a)(1) of Title 2, United States Code.

          (4) Except as provided by section 9034(a), the term "contribution"

          (A) means a gift, subscription, loan, advance, or deposit of money, or anything of value, the payment of which was made on or after the beginning of the calendar year immediately preceding the calendar year of the presidential election with respect to which such gift, subscription, loan, advance, or deposit of money, or anything of value, is made for the purpose of influencing the result of a primary election;

          (B) means a contract, promise, or agreement, whether or not legally enforceable, to make a contribution for any such purpose;

          (C) means funds received by a political committee which are transferred to that committee from another committee; and

          (D) means the payment by any person other than a candidate, or his authorized committee, of compensation for the personal services of another person which are rendered to the candidate or committee without charge; but

Page 225

          (E) does not include

          (i) except as provided in subparagraph (D), the value of personal services rendered to or for the benefit of a candidate by an individual who receives no compensation for rendering such service to or for the benefit of the candidate; or

          (ii) payments under section 9037.

          (5) The term "matching payment account" means the Presidential Primary Matching Payment Account established under section 9037(a).

          (6) The term "matching payment period" means the period beginning with the beginning of the calendar year in which a general election for the office of President of the United States will be held and ending on the date on which the national convention of the party whose nomination a candidate seeks nominates its candidate for the office of President of the United States, or, in the case of a party which does not make such nomination by national convention, ending on the earlier of

          (A) the date such party nominates its candidate for the office of President of the United States; or

          (B) the last day of the last national convention held by a major party during such calendar year.

          (7) The term "primary election" means an election, including a runoff election or a nominating convention or caucus held by a political party, for the selection of delegates to a national nominating convention of a political party, or for the expression of a preference for the nomination of persons for election to the office of President of the United States.

Page 226

          (8) The term "political committee" means any individual, committee, association, or organization (whether or not incorporated) which accepts contributions or incurs qualified campaign expenses for the purpose of influencing, or attempting to influence, the nomination of any person for election to the office of President of the United States.

          (9) The term "qualified campaign expense" means a purchase, payment, distribution, loan, advance, deposit, or gift of money or of anything of value

          (A) incurred by a candidate, or by his authorized committee, in connection with his campaign for nomination for election; and

          (B) neither the incurring nor payment of which constitutes a violation of any law of the United States or of the State in which the expense is incurred or paid.

          For purposes of this paragraph, an expense is incurred by a candidate or by an authorized committee if it is incurred by a person specifically authorized in writing by the candidate or committee, as the case may be, to incur such expense on behalf of the candidate or the committee.

          (10) The term "State" means each State of the United States and the District of Columbia.

s 9033. Eligibility for payments.

          (a) Conditions. To be eligible to receive payments under section 9037, a candidate shall, in writing

          (1) agree to obtain and furnish to the Commission any evidence it may request of qualified campaign expenses;

          (2) agree to keep and furnish to the Commission any records, books, and other information it may request; and

          (3) agree to an audit and examination by the

Page 227

          Commission under section 9038 and to pay any amounts required to be paid under such section.

          (b) Expense limitation; declaration of intent; minimum contributions. To be eligible to receive payments under section 9037, a candidate shall certify to the Commission that

          (1) the candidate and his authorized committees will not incur qualified campaign expenses in excess of the limitation on such expenses under section 9035;

          (2) the candidate is seeking nomination by a political party for election to the office of President of the United States;

          (3) the candidate has received matching contributions which in the aggregate, exceed $5,000 in contributions from residents of each of at least 20 States; and

          (4) the aggregate of contributions certified with respect to any person under paragraph (3) does not exceed $250.

s 9034. Entitlement of eligible candidates to payments.

          (a) In general. Every candidate who is eligible to receive payments under section 9033 is entitled to payments under section 9037 in an amount equal to the amount of each contribution received by such candidate on or after the beginning of the calendar year immediately preceding the calendar year of the presidential election with respect to which such candidate is seeking nomination, or by his authorized committees, disregarding any amount of contributions from any person to the extent that the total of the amounts contributed by such person on or after the beginning of such preceding calendar year exceeds $250. For purposes of this subsection and section 9033(b), the term "contribution" means a gift of money made by a written instrument which identi-

Page 228

fies the person making the contribution by full name and mailing address, but does not include a subscription, loan, advance, or deposit of money, or anything of value or anything described in subparagraph (B), (C), or (D) of section 9032(4).

          (b) Limitations. The total amount of payments to which a candidate is entitled under subsection (a) shall not exceed 50 percent of the expenditure limitation applicable under section 608(c)(1)(A) of Title 18, United States Code.

s 9035. Qualified campaign expense limitation.

          No candidate shall knowingly incur qualified campaign expenses in excess of the expenditure limitation applicable under section 608(c)(1)(A) of Title 18, United States Code.

s 9036. Certification by Commission.

          (a) Initial certifications. Not later than 10 days after a candidate establishes his eligibility under section 9033 to receive payments under section 9037, the Commission shall certify to the Secretary for payment to such candidate under section 9037 payment in full of amounts to which such candidate is entitled under section 9034. The Commission shall make such additional certifications as may be necessary to permit candidates to receive payments for contributions under section 9037.

          (b) Finality of determinations. Initial certifications by the Commission under subsection (a) and all determinations made by it under this chapter, are final and conclusive, except to the extent that they are subject to examination and audit by the Commission under section 9038 and judicial review under section 9041.

s 9037. Payments to eligible candidates.

          (a) Establishment of account. The Secretary shall maintain in the Presidential Election Campaign Fund

Page 229

established by section 9006(a), in addition to any account which he maintains under such section, a separate account to be known as the Presidential Primary Matching Payment Account. The Secretary shall deposit into the matching payment account, for use by the candidate of any political party who is eligible to receive payments under section 9033, the amount available after the Secretary determines that amounts for payments under section 9006(c) and for payments under section 9008(b)(3) are available for such payments.

          (b) Payments from the matching payment account. Upon receipt of a certification from the Commission under section 9036, but not before the beginning of the matching payment period, the Secretary or his delegate shall promptly transfer the amount certified by the Commission from the matching payment account to the candidate. In making such transfers to candidates of the same political party, the Secretary or his delegate shall seek to achieve an equitable distribution of funds available under subsection (a), and the Secretary or his delegate shall take into account, in seeking to achieve an equitable distribution, the sequence in which such certifications are received.

s 9038. Examinations and audits; repayments.

          (a) Examinations and audits. After each matching payment period, the Commission shall conduct a thorough examination and audit of the qualified campaign expenses of every candidate and his authorized committees who received payments under section 9037.

          (b) Repayments.

          (1) If the Commission determines that any portion of the payments made to a candidate from the matching payment account was in excess of the aggregate amount of payments to which such candidate was entitled under section 9034, it shall

Page 230

          notify the candidate, and the candidate shall pay to the Secretary or his delegate an amount equal to the amount of excess payments.

          (2) If the Commission determines that any amount of any payment made to a candidate from the matching payment account was used for any purpose other than

          (A) to defray the qualified campaign expenses with respect to which such payment was made; or

          (B) to repay loans the proceeds of which were used or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray qualified campaign expenses;

          it shall notify such candidate of the amount so used, and the candidate shall pay to the Secretary or his delegate an amount equal to such amount.

          (3) Amounts received by a candidate from the matching payment account may be retained for the liquidation of all obligations to pay qualified campaign expenses incurred for a period not exceeding 6 months after the end of the matching payment period. After all obligations have been liquidated, that portion of any unexpended balance remaining in the candidate's accounts which bears the same ratio to the total unexpended balance as the total amount received from the matching payment account bears to the total of all deposits made into the candidate's accounts shall be promptly repaid to the matching payment account.

          (c) Notification. No notification shall be made by the Commission under subsection (b) with respect to a matching payment period more than 3 years after the end of such period.

Page 231

          (d) Deposit of repayments. All payments received by the Secretary or his delegate under subsection (b) shall be deposited by him in the matching payment account.

s 9039. Reports to Congress; regulations.

          (a) Reports. The Commission shall, as soon as practicable after each matching payment period, submit a full report to the Senate and House of Representatives setting forth

          (1) the qualified campaign expenses (shown in such detail as the Commission determines necessary) incurred by the candidates of each political party and their authorized committees;

          (2) the amounts certified by it under section 9036 for payment to each eligible candidate; and

          (3) the amount of payments, if any, required from candidates under section 9038, and the reasons for each payment required.

          Each report submitted pursuant to this section shall be printed as a Senate document.

          (b) Regulations, etc. The Commission is authorized to prescribe rules and regulations in accordance with the provisions of subsection (c), to conduct examinations and audits (in addition to the examinations and audits required by section 9038(a)), to conduct investigations, and to require the keeping and submission of any books, records, and information, which it determines to be necessary to carry out its responsibilities under this chapter.

          (c) Review of regulations.

          (1) The Commission, before prescribing any rule or regulation under subsection (b), shall transmit a statement with respect to such rule or regulation to the Senate and to the House of Representatives,

Page 232

          in accordance with the provisions of this subsection. Such statement shall set forth the proposed rule or regulation and shall contain a detailed explanation and justification of such rule or regulation.

          (2) If either such House does not, through appropriate action, disapprove the proposed rule or regulation set forth in such statement no later than 30 legislative days after receipt of such statement, then the Commission may not prescribe such rule or regulation. The Commission may prescribe any rule or regulation which is disapproved by either such House under this paragraph.

          (3) For purposes of this subsection, the term "legislative days" does not include any calendar day on which both Houses of the Congress are not in session.

s 9040. Participation by Commission in judicial proceedings.

          (a) Appearance by counsel. The Commission is authorized to appear in and defend against any action instituted under this section, either by attorneys employed in its office or by counsel whom it may appoint without regard to the provisions of Title 5, United States Code, governing appointments in the competitive service, and whose compensation it may fix without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title.

          (b) Recovery of certain payments. The Commission is authorized, through attorneys and counsel described in subsection (a), to institute actions in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary or his delegate as a result of an examination and audit made pursuant to section 9038.

Page 233

          (c) Injunctive relief. The Commission is authorized, through attorneys and counsel described in subsection (a) to petition the courts of the United States for such injunctive relief as is appropriate to implement any provision of this chapter.

          (d) Appeal. The Commission is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section.

s 9041. Judicial review.

          (a) Review of agency action by the Commission. Any agency action by the Commission made under the provisions of this chapter shall be subject to review by the United States Court of Appeals for the District of Columbia Circuit upon petition filed in such court within 30 days after the agency action by the Commission for which review is sought.

          (b) Review procedures. The provisions of chapter 7 of Title 5, United States Code, apply to judicial review of any agency action, as defined in section 551(13) of Title 5, United States Code, by the Commission.

s 9042. Criminal penalties.

          (a) Excess campaign expenses. Any person who violates the provisions of section 9035 shall be fined not more than $25,000, or imprisoned not more than 5 years, or both. Any officer or member of any political committee who knowingly consents to any expenditure in violation of the provisions of section 9035 shall be fined not more than $25,000, or imprisoned not more than 5 years, or both.

          (b) Unlawful use of payments.

          (1) It is unlawful for any person who receives any payment under section 9037, or to whom any portion

Page 234

          of any such payment is transferred, knowingly and willfully to use, or authorize the use of, such payment or such portion for any purpose other than

          (A) to defray qualified campaign expenses; or

          (B) to repay loans the proceeds of which were used, or otherwise to restore funds (other than contributions to defray qualified campaign expenses which were received and expended) which were used, to defray qualified campaign expenses.

          (2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.

          (c) False statements, etc.

          (1) It is unlawful for any person knowingly and willfully

          (A) to furnish any false, fictitious, or fraudulent evidence, books, or information to the Commission under this chapter, or to include in any evidence, books, or information so furnished any misrepresentation of a material fact, or to falsify or conceal any evidence, books, or information relevant to a certification by the Commission or an examination and audit by the Commission under this chapter; or

          (B) to fail to furnish to the Commission any records, books, or information requested by it for purposes of this chapter.

          (2) Any person who violates the provisions of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.

          (d) Kickbacks and illegal payments.

          (1) It is unlawful for any person knowingly and willfully to give or accept any kickback or any illegal

Page 235

          payment in connection with any qualified campaign expense of a candidate, or his authorized committees, who receives payments under section 9037.

          (2) Any person who violates the provision of paragraph (1) shall be fined not more than $10,000, or imprisoned not more than 5 years, or both.

          (3) In addition to the penalty provided by paragraph (2), any person who accepts any kickback or illegal payment in connection with any qualified campaign expense of a candidate or his authorized committees shall pay to the Secretary for deposit in the matching payment account, an amount equal to 125 percent of the kickback or payment received.

           Mr. Chief Justice BURGER, concurring in part and dissenting in part.

          For reasons set forth more fully later, I dissent from those parts of the Court's holding sustaining the statutory provisions (a) for disclosure of small contributions, (b) for limitations on contributions, and (c) for public financing of Presidential campaigns. In my view, the Act's disclosure scheme is impermissibly broad and violative of the First Amendment as it relates to reporting contributions in excess of $10 and $100. The contribution limitations infringe on First Amendment liberties and suffer from the same infirmities that the Court correctly sees in the expenditure ceilings. The system for public financing of Presidential campaigns is, in my judgment, an impermissible intrusion by the Government into the traditionally private political process.

          More broadly, the Court's result does violence to the intent of Congress in this comprehensive scheme of campaign finance. By dissecting the Act bit by bit, and casting off vital parts, the Court fails to recognize that the whole of this Act is greater than the sum of its parts.

Page 236

Congress intended to regulate all aspects of federal campaign finances, but what remains after today's holding leaves no more than a shadow of what Congress contemplated. I question whether the residue leaves a workable program.

          Disclosure is, in principle, the salutary and constitutional remedy for most of the ills Congress was seeking to alleviate. I therefore agree fully with the broad proposition that public disclosure of contributions by individuals and by entities particularly corporations and labor unions is an effective means of revealing the type of political support that is sometimes coupled with expectations of special favors or rewards. That disclosure impinges on First Amendment rights is conceded by the Court, ante, at 64-66, but given the objectives to which disclosure is directed, I agree that the need for disclosure outweighs individual constitutional claims.

          Disclosure is, however, subject to First Amendment limitations which are to be defined by looking to the relevant public interests. The legitimate public interest is the elimination of the appearance and reality of corrupting influences. Serious dangers to the very processes of government justify disclosure of contributions of such dimensions reasonably thought likely to purchase special favors. These fears have been at the root of the Court's prior decisions upholding disclosure requirements, and I therefore have no disagreement, for example, with Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934).

          The Court's theory, however, goes beyond permissible limits. Under the Court's view, disclosure serves broad informational purposes, enabling the public to be fully informed on matters of acute public interest. Forced disclosure of one aspect of a citizen's political activity,

Page 237

under this analysis, serves the public right to know. This open-ended approach is the only plausible justification for the otherwise irrationally low ceilings of $10 and $100 for anonymous contributions. The burdens of these low ceilings seem to me obvious, and the Court does not try to question this. With commendable candor, the Court acknowledges:

          "It is undoubtedly true that public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute." Ante, at 68.

          Examples come readily to mind. Rank-and-file union members or rising junior executives may now think twice before making even modest contributions to a candidate who is disfavored by the union or management hierarchy. Similarly, potential contributors may well decline to take the obvious risks entailed in making a reportable contribution to the opponent of a well-entrenched incumbent. This fact of political life did not go unnoticed by the Congress:

          "The disclosure provisions really have in fact made it difficult for challengers to challenge incumbents." 120 Cong.Rec. 34392 (1974) (remarks of Sen. Long).

          See Pollard v. Roberts, 283 F.Supp. 248 (ED Ark.), aff'd per curiam, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968).

          The public right to know ought not be absolute when its exercise reveals private political convictions. Secrecy, like privacy, is not per se criminal. On the contrary, secrecy and privacy as to political preferences and convictions are fundamental in a free society. For example, one of the great political reforms was the advent of the secret ballot as a universal practice. Similarly, the enlightened labor legislation of our time has enshrined the secrecy of choice of a bargaining representative for

Page 238

workers. In other contexts, this Court has seen to it that governmental power cannot be used to force a citizen to disclose his private affiliations, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), even without a record reflecting any systematic harassment or retaliation, as in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). For me it is far too late in the day to recognize an ill-defined "public interest" to breach the historic safeguards guaranteed by the First Amendment.

          We all seem to agree that whatever the legitimate public interest in this area, proper analysis requires us to scrutinize the precise means employed to implement that interest. The balancing test used by the Court requires that fair recognition be given to competing interests. With respect, I suggest the Court has failed to give the traditional standing to some of the First Amendment values at stake here. Specifically, it has failed to confine the particular exercise of governmental power within limits reasonably required.

          "In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

          "Unduly" must mean not more than necessary, and until today, the Court has recognized this criterion in First Amendment cases:

          "In the area of First Amendment freedoms, government has the duty to confine itself to the least intrusive regulations which are adequate for the purpose." Lamont v. Postmaster General, 381 U.S. 301, 310, 85 S.Ct. 1493, 1498, 14 L.Ed.2d 398 (1965) (Brennan, J., concurring). (Emphasis added.)

          Similarly, the Court has said:

          'Even though the governmental purpose be legiti-mate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic-

Page 239

  purpose.' Shelton v. Tucker, supra, 364 U.S. at 488, 81 S.Ct., at 252.

          In light of these views,¹it seems to me that the threshold limits fixed at $10 and $100 for anonymous contributions are constitutionally impermissible on their face. As the Court's opinion notes, ante, at 83, Congress gave little or no thought, one way or the other, to these limits, but rather lifted figures out of a 65-year-old statute.² As we are all painfully aware, the 1976 dollar is not what it used to be and is surely not the dollar of 1910. Ten dollars in 1976 will, for example, purchase only what $1.68 would buy in 1910. United States Dept. of Labor, Handbook of Labor statistics 1975, p. 313 (Dec. 1975). To argue that a 1976 contribution of $10 or $100 entails a risk of corruption or its appearance is simply too extravagant to be maintained. No public right to know justifies the compelled disclosure of such contributions, at the risk of discouraging them. There is, in short, no relation whatever between the means used and the legitimate goal of ventilating possible undue influence. Congress has used a shotgun to kill wrens as well as hawks.

Page 240

In saying that the lines drawn by Congress are "not wholly without rationality," the Court plainly fails to apply the traditional test:

          "Precision of regulation must be the touchstone in an area so closely touching on our most precious freedoms." NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1938).

          See, e. g., Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Lamont v. Postmaster General, supra. The Court's abrupt departure ³ from traditional standards is wrong; surely a greater burden rests on Congress than merely to avoid "irrationality" when regulating in the core area of the First Amendment. Even taking the Court at its word, the particular dollar amounts fixed by Congress that must be reported to the Commission fall short of meeting the test of rationality when measured by the goals sought to be achieved.

          Finally, no legitimate public interest has been shown in forcing the disclosure of modest contributions that are the prime support of new, unpopular, or unfashionable political causes. There is no realistic possibility that such modest donations will have a corrupting influence especially on parties that enjoy only "minor" status. Major parties would not notice them; minor parties need them. Furthermore, as the Court candidly recognizes, ante, at 70, minor parties and new parties tend to be sharply ideological in character, and the public can readily discern where such parties stand, without resorting to the indirect device of recording the names of financial supporters. To hold, as the Court has, that privacy must sometimes yield to congressional investigations of alleged subversion, is quite different from making domestic po-

Page 241

litical partisans give up privacy. Cf. Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975). In any event, the dangers to First Amendment rights here are too great. Flushing out the names of supporters of minority parties will plainly have a deterrent effect on potential contributors, a consequence readily admitted by the Court, ante, at 71, 83, and supported by the record.⁴

          I would therefore hold unconstitutional the provisions requiring reporting of contributions of more than $10 and to make a public record of the name, address, and occupation of a contributor of more than $100.

                          CONTRIBUTION AND EXPENDITURE LIMITS

          I agree fully with that part of the Court's opinion that holds unconstitutional the limitations the Act puts on campaign expenditures which "place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate." Ante, at 58-59. Yet when it approves similarly stringent limitations on contributions, the Court ignores the reasons it finds so persuasive in the context of expenditures. For me contributions and expenditures are two sides of the same First Amendment coin.

          By limiting campaign contributions, the Act restricts the amount of money that will be spent on political ac-

Page 242

tivity and does so directly. Appellees argue, as the Court notes, that these limits will "act as a brake on the skyrocketing cost of political campaigns," ante, at 26. In treating campaign expenditure limitations, the Court says that the "First Amendment denies government the power to determine that spending to promote one's political views is wasteful, excessive, or unwise." Ante, at 57. Limiting contributions, as a practical matter, will limit expenditures and will put an effective ceiling on the amount of political activity and debate that the Government will permit to take place. The argument that the ceiling is not, after all, very low as matters now stand gives little comfort for the future, since the Court elsewhere notes the rapid inflation in the cost of political campaigning.⁵ Ante, at 57.

          The Court attempts to separate the two communicative aspects of political contributions the "moral" support that the gift itself conveys, which the Court suggests is the same whether the gift is $10 or $10,000,⁶ and the

Page 243

fact that money translates into communication. The Court dismisses the effect of the limitations on the second aspect of contributions: "(T)he transformation of contributions into political debate involves speech by someone other than the contributor." Ante, at 21. On this premise that contribution limitations restrict only the speech of "someone other than the contributor" rests the Court's justification for treating contributions differently from expenditures. The premise is demonstrably flawed; the contribution limitations will, in specific instances, limit exactly the same political activity that the expenditure ceilings limit,⁷ and at least one of the "ex-

Page 244

penditure" limitations the Court finds objectionable operates precisely like the "contribution" limitations.⁸

          The Court's attempt to distinguish the communication inherent in political contributions from the speech aspects of political expenditures simply "will not wash." We do little but engage in word games unless we recognize that people candidates and contributors spend money on political activity because they wish to communicate ideas, and their constitutional interest in doing so is precisely the same whether they or someone else utters the words.

          The Court attempts to make the Act seem less restrictive by casting the problem as one that goes to freedom of association rather than freedom of speech. I have long thought freedom of association and freedom of expression were two peas from the same pod. The contribution limitations of the Act impose a restriction on certain forms of associational activity that are for the most part, as the Court recognizes, ante, at 29, harmless in fact. And the restrictions are hardly incidental in their effect upon particular campaigns. Judges are ill-equipped to gauge the precise impact of legislation, but a law that impinges upon First Amendment rights requires us to make the attempt. It is not simply speculation to think that the limitations on contributions will foreclose some candidacies.⁹ The limitations will also alter the nature of some electoral contests drastically.¹⁰

Page 245

          At any rate, the contribution limits are a far more severe restriction on First Amendment activity than the sort of "chilling" legislation for which the Court has shown such extraordinary concern in the past. See, e. g., Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); see also cases reviewed in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966). If such restraints can be justified at all, they must be justified by the very strongest of state interests. With this much the Court clearly agrees; the Court even goes so far as to note that legislation cutting into these important interests must employ "means closely drawn to avoid unnecessary abridgment of associational freedoms." Ante, at 25.

          After a bow to the "weighty interests" Congress meant to serve, the Court then forsakes this analysis in one sentence: "Congress was surely entitled to conclude that disclosure was only a partial measure, and that contribution ceilings were a necessary legislative concomitant to deal with the reality or appearance of corruption . . . ." Ante, at 28. In striking down the limitations on campaign expenditures, the Court relies in part on its conclusion that other means namely, disclosure and contribution ceilings will adequately serve the statute's aim. It is not clear why the same analysis is not also appropriate in weighing the need for contribution ceilings in addition to disclosure requirements. Congress may well be

Page 246

entitled to conclude that disclosure was a "partial measure," but I had not thought until today that Congress could enact its conclusions in the First Amendment area into laws immune from the most searching review by this Court.

          Finally, it seems clear to me that in approving these limitations on contributions the Court must rest upon the proposition that "pooling" money is fundamentally different from other forms of associational or joint activity. But see ante, at 66. I see only two possible ways in which money differs from volunteer work, endorsements, and the like. Money can be used to buy favors, because an unscrupulous politician can put it to personal use; second, giving money is a less visible form of associational activity. With respect to the first problem, the Act does not attempt to do any more than the bribery laws to combat this sort of corruption. In fact, the Act does not reach at all, and certainly the contribution limits do not reach, forms of "association" that can be fully as corrupt as a contribution intended as a quid pro quo such as the eleventh-hour endorsement by a former rival, obtained for the promise of a federal appointment. This underinclusiveness is not a constitutional flaw, but it demonstrates that the contribution limits do not clearly focus on this first distinction. To the extent Congress thought that the second problem, the lesser visibility of contributions, required that money be treated differently from other forms of associational activity, disclosure laws are the simple and wholly efficacious answer; they make the invisible apparent.

          I dissent from Part III sustaining the constitutionality of the public financing provisions of Subtitle H.

          Since the turn of this century when the idea of Govern-

Page 247

ment subsidies for political campaigns first was broached, there has been no lack of realization that the use of funds from the public treasury to subsidize political activity of private individuals would produce substantial and profound questions about the nature of our democratic society. The Majority Leader of the Senate, although supporting such legislation in 1967, said that "the implications of these questions . . . go to the very heart and structure of the Government of the Republic." ¹¹ The Solicitor General in his amicus curiae brief states that "the issues involved here are of indisputable moment." ¹² He goes on to express his view that public financing will have "profound effects in the way candidates approach issues and each other." ¹³ Public financing, he notes, "affects the role of the party in campaigns for office, changes the role of the incumbent government vis-a-vis all parties, and affects the relative strengths and strategies of candidates vis-a-vis each other and their party's leaders." ¹⁴

          The Court chooses to treat this novel public financing of political activity as simply another congressional appropriation whose validity is "necessary and proper" to Congress' power to regulate and reform elections and primaries, relying on United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), and Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934). No holding of this Court is directly in point, because no federal scheme allocating public funds in a comparable manner has ever been before us. The uniqueness of the plan is not relevant, of course, to whether Congress has power to enact it. Indeed, I do not question the power of Congress to regulate elections; nor do I

Page 248

challenge the broad proposition that the General Welfare Clause is a grant, not a limitation, of power. McCulloch v. Maryland, 4 Wheat. 316, 420, 4 L.Ed. 579 (1819); United States v. Butler, 297 U.S. 1, 66, 56 S.Ct. 312, 319, 80 L.Ed. 477 (1936).

          I would, however, fault the Court for not adequately analyzing and meeting head on the issue whether public financial assistance to the private political activity of individual citizens and parties is a legitimate expenditure of public funds. The public monies at issue here are not being employed simply to police the integrity of the electoral process or to provide a forum for the use of all participants in the political dialogue, as would, for example, be the case if free broadcast time were granted. Rather, we are confronted with the Government's actual financing, out of general revenues, a segment of the political debate itself. As Senator Howard Baker remarked during the debate on this legislation:

          "I think there is something politically incestuous about the Government financing and, I believe, inevitably then regulating, the day-to-day procedures by which the Government is selected . . . .

          "I think it is extraordinarily important that the Government not control the machinery by which the public expresses the range of its desires, demands, and dissent." 120 Cong.Rec. 8202 (1974).

          If this "incest" affected only the issue of the wisdom of the plan, it would be none of the concern of judges. But, in my view, the inappropriateness of subsidizing, from general revenues, the actual political dialogue of the people the process which begets the Government itself is as basic to our national tradition as the separation of church and state also deriving from the First Amendment, see Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971); Walz v. Tax Comm'n, 397 U.S. 664, 668-669, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970),

Page 249

or the separation of civilian and military authority, see Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953), neither of which is explicit in the Constitution but both of which have developed through case-by-case adjudication of express provisions of the Constitution.

          Recent history shows dangerous examples of systems with a close, "incestuous" relationship between "government" and "politics"; the Court's opinion simply dismisses possible dangers by noting that:

          "Subtitle H is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people." Ante, at 92-93.

          Congress, it reassuringly adds by way of a footnote, has expressed its determination to avoid such a possibility.¹⁵ Ante, at 93 n. 126. But the Court points to no basis for predicting that the historical pattern of "varying measures of control and surveillance," Lemon v. Kurtzman, supra, 403 U.S., at 621, 91 S.Ct. at 2115 which usually accompany grants from Government will not also follow in this case.¹⁶ Up to now, the Court has always been extraordinarily sensitive, when dealing with First Amendment rights, to the risk that the "flag tends to follow the dollars." Yet, here, where Subtitle H specifically requires the auditing of records of political parties and candidates by Government inspectors,¹⁷ the Court shows

Page 250

little sensitivity to the danger it has so strongly condemned in other contexts. See, e. g., Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). Up to now, this Court has scrupulously refrained, absent claims of invidious discrimination,¹⁸ from entering the arena of intraparty disputes concerning the seating of convention delegates. Graham v. Fong Eu, 403 F.Supp. 37 (N.D.Cal.1975), summarily aff'd, 423 U.S. 1067, 96 S.Ct. 851, 47 L.Ed.2d 80 (1976); Cousins v. Wigoda, 419 U.S. 477, 95 S.Ct. 541, 42 L.Ed.2d 595 (1975); O'Brien v. Brown, 409 U.S. 1, 92 S.Ct. 2718, 34 L.Ed.2d 1 (1972). An obvious underlying basis for this reluctance is that delegate selection and the management of political conventions have been considered a strictly private political matter, not the business of Government inspectors. But once the Government finances these national conventions by the expenditure of millions of dollars from the public treasury, we may be providing a springboard for later attempts to impose a whole range of requirements on delegate selection and convention activities. Does this foreshadow judicial decisions allowing the federal courts to "monitor" these conventions to assure compliance with court orders or regulations?

          Assuming, arguendo, that Congress could validly appropriate public money to subsidize private political activity, it has gone about the task in Subtitle H in a manner which is not, in my view, free of constitutional infirmity.¹⁹ I do not question that Congress has "wide discretion in the manner of prescribing details of expenditures" in some contexts, Cincinnati Soap Co. v. United States, 301 U.S. 308, 321, 57 S.Ct. 764, 770, 81 L.Ed. 1122 (1937). Here, however, Congress has not itself appropriated a specific sum to attain the ends of the Act but has delegated to a limited group

Page 251

of citizens those who file tax returns the power to allocate general revenue for the Act's purposes and of course only a small percentage of that limited group has exercised the power. There is nothing to assure that the "fund" will actually be adequate for the Act's objectives. Thus, I find it difficult to see a rational basis for concluding that this scheme would, in fact, attain the stated purposes of the Act when its own funding scheme affords no real idea of the amount of the available funding.

          I agree with Mr. Justice REHNQUIST that the scheme approved by the Court today invidiously discriminates against minor parties. Assuming, arguendo, the constitutionality of the overall scheme, there is a legitimate governmental interest in requiring a group to make a "preliminary showing of a significant modicum of support." Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971). But the present system could preclude or severely hamper access to funds before a given election by a group or an individual who might, at the time of the election, reflect the views of a major segment or even a majority of the electorate. The fact that there have been few drastic realignments in our basic two-party structure in 200 years is no constitutional justification for freezing the status quo of the present major parties at the expense of such future political movements. Compare discussion, ante, at 73. When and if some minority party achieves majority status, Congress can readily deal with any problems that arise. In short, I see grave risks in legislation, enacted by incumbents of the major political parties, which distinctly disadvantages minor parties or independent candidates. This Court has, until today, been particularly cautious when dealing with enactments that tend to perpetuate those who control legislative power. See Reynolds v. Sims, 377 U.S. 533, 570, 84 S.Ct. 1362, 1386, 12 L.Ed.2d 506 (1964).

          I would also find unconstitutional the system of

Page 252

matching grants which makes a candidate's ability to amass private funds the sole criterion for eligibility for public funds. Such an arrangement can put at serious disadvantage a candidate with a potentially large, widely diffused but poor constituency. The ability of a candidate's supporters to help pay for his campaign cannot be equated with their willingness to cast a ballot for him. See Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).

          I cannot join in the attempt to determine which parts of the Act can survive review here. The statute as it now stands is unworkable and inequitable.

          I agree with the Court's holding that the Act's restrictions on expenditures made "relative to a clearly identified candidate," independent of any candidate or his committee, are unconstitutional. Ante, at 39-51. Paradoxically the Court upholds the limitations on individual contributions, which embrace precisely the same sort of expenditures "relative to a clearly identified candidate" if those expenditures are "authorized or requested" by the "candidate or his agents." Ante, at 24 n. 25. The Act as cut back by the Court thus places intolerable pressure on the distinction between "authorized" and "unauthorized" expenditures on behalf of a candidate; even those with the most sanguine hopes for the Act might well concede that the distinction cannot be maintained. As the Senate Report on the bill said:

          "Whether campaigns are funded privately or publicly . . . controls are imperative if Congress is to enact meaningful limits on direct contributions. Otherwise, wealthy individuals limited to a $3,000 direct contribution ($1,000 in the bill as finally enacted) could also purchase one hundred thousand

Page 253

          dollars' worth of advertisements for a favored candidate. Such a loophole would render direct contribution limits virtually meaningless." S.Rep. No. 93-689, p. 18 (1974), U.S.Code Cong. & Admin.News 1974, p. 5604.

          Given the unfortunate record of past attempts to draw distinctions of this kind, see ante, at 61-62, it is not too much to predict that the Court's holding will invite avoidance, if not evasion of the intent of the Act, with "independent" committees undertaking "unauthorized" activities in order to escape the limits on contributions. The Court's effort to blend First Amendment principles and practical politics has produced a strange offspring.

          Moreover, the Act or so much as the Court leaves standing creates significant inequities. A candidate with substantial personal resources is now given by the Court a clear advantage over his less affluent opponents, who are constrained by law in fundraising, because the Court holds that the "First Amendment cannot tolerate" any restrictions on spending. Ante, at 59. Minority parties, whose situation is difficult enough under an Act that excludes them from public funding, are prevented from accepting large single-donor contributions. At the same time the Court sustains the provision aimed at broadening the base of political support by requiring candidates to seek a greater number of small contributors, it sustains the unrealistic disclosure thresholds of $10 and $100 that I believe will deter those hoped-for small contributions. Minor parties must now compete for votes against two major parties whose expenditures will be vast. Finally, the Act's distinction between contributions in money and contributions in services remains, with only the former being subject to any limits. As Judge Tamm put it in dissent from the Court of Appeals' opinion:

          "(T)he classification created only regulates certain-

Page 254

          ypes of disproportional influences. Under section 591(e)(5), services are excluded from contributions. This allows the housewife to volunteer time that might cost well over $1000 to hire on the open market, while limiting her neighbor who works full-time to a regulated contribution. It enhances the disproportional influence of groups who command large quantities of these volunteer services and will continue to magnify this inequity by not allowing for an inflation adjustment to the contribution limit. It leads to the absurd result that a lawyer's contribution of services to aid a candidate in complying with FECA is exempt, but his first amendment activity is regulated if he falls ill and hires a replacement." 171 U.S.App.D.C. 172, 266, 519 F.2d 821, 915 (1975).

          One need not call problems of this order equal protection violations to recognize that the contribution limitations of the Act create grave inequities that are aggravated by the Court's interpretation of the Act.

          The Court's piecemeal approach fails to give adequate consideration to the integrated nature of this legislation. A serious question is raised, which the Court does not consider: ²⁰ when central segments, key operative provisions, of this Act are stricken, can what remains function in anything like the way Congress intended? The incongruities are obvious. The Commission is now eliminated, yet its very purpose was to guide candidates and campaign workers and their accountants and lawyers through an intricate statutory maze where a misstep can lead to imprisonment. All candidates can now spend freely; affluent candidates, after today, can spend their own money without limit; yet, contributions for the ordi-

Page 255

nary candidate are severely restricted in amount and small contributors are deterred. I cannot believe that Congress would have enacted a statutory scheme containing such incongruous and inequitable provisions.

          Although the statute contains a severability clause, 2 U.S.C. § 454 (1970 ed., Supp. IV), such a clause is not an "inexorable command." ²¹ Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 324, 68 L.Ed. 686 (1924). The clause creates a rebuttable presumption that " 'eliminating invalid parts, the Legislature would have been satisfied with what remained.' " Welsh v. United States, 398 U.S. 333, 364, 90 S.Ct. 1792, 1809, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring, quoting from Champlin Rfg. Co. v. Commission, 286 U.S. 210, 235, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932)). Here just as the presumption of constitutionality of a statute has been overcome to the point that major portions and chapters of the Act have been declared unconstitutional, for me the presumption of severability has been rebutted. To invoke a severability clause to sal vage parts of a comprehensive, integrated statutory scheme, which facts, standing alone, are unworkable and in many aspects unfair, exalts a formula at the expense of the broad objectives of Congress.

          Finally, I agree with the Court that the members of the Federal Election Commission were unconstitutionally appointed. However, I disagree that we should give blanket de facto validation to all actions of the Commission undertaken until today. The issue is not before us and we cannot know what acts we are ratifying. I would leave this issue to the District Court to resolve if and when any challenges are brought.

          In the past two decades the Court has frequently

Page 256

spoken of the broad coverage of the First Amendment, especially in the area of political dialogue:

          "(T)o assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people," Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957);

          and:

          "(T)here is practically universal agreement that a major purpose of (the First) Amendment was to protect the free discussion of governmental affairs . . . (including) discussions of candidates . . . ," Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966);

          and again:

          "(I)t can hardly be doubted that the constitutional guarantee (of the First Amendment) has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971).

          To accept this generalization one need not agree that the Amendment has its "fullest and most urgent application" only in the political area, for others would think religious freedom is on the same or even a higher plane. But I doubt that the Court would tolerate for an instant a limitation on contributions to a church or other religious cause; however grave an "evil" Congress thought the limits would cure, limits on religious expenditures would most certainly fall as well. To limit either contributions or expenditures as to churches would plainly restrict "the free exercise" of religion. In my view Congress can no more ration political expression than it can ration religious expression; and limits on political or religious contributions and expenditures effectively curb expression in both areas. There are many prices we pay for the freedoms secured by the First Amendment; the risk of undue

Page 257

influence is one of them, confirming what we have long known: Freedom is hazardous, but some restraints are worse.

           Mr. Justice WHITE, concurring in part and dissenting in part.

          I concur in the Court's answers to certified questions 1, 2, 3(b), 3(c), 3(e), 3(f), 3(h), 5, 6, 7(a), 7(b), 7(c), 7(d), 8(a), 8(b), 8(c), 8(d), 8(e), and 8(f). I dissent from the answers to certified questions 3(a), 3(d), and 4(a). I also join in Part III of the Court's opinion and in much of Parts I-B, II, and IV.

          It is accepted that Congress has power under the Constitution to regulate the election of federal officers, including the President and the Vice President. This includes the authority to protect the elective processes against the "two great natural and historical enemies of all republics, open violence and insidious corruption," Ex parte Yarbrough, 110 U.S. 651, 658, 4 S.Ct. 152, 155, 28 L.Ed. 274 (1884); for "(i)f this government is anything more than a mere aggregation of delegated agents of other states and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends, from violence and corruption," the latter being the consequence of "the free use of money in elections, arising from the vast growth of recent wealth . . . ." Id., at 657-658, 667, 4 S.Ct. at 160.

          This teaching from the last century was quoted at length and reinforced in Burroughs v. United States, 290 U.S. 534, 546-548, 54 S.Ct. 287, 291, 78 L.Ed. 484 (1934). In that case the Court sustained the Federal Corrupt Practices Act of 1925, Title III of the Act of Feb. 28, 1925, 43 Stat. 1070, which, among other things, required political committees to keep

Page 258

records and file reports concerning all contributions and expenditures received and made by political committees for the purposes of influencing the election of candidates for federal office. The Court noted the conclusion of Congress that public disclosure of contributions would tend to prevent the corrupt use of money to influence elections; this, together with the requirement "that the treasurer's statement shall include full particulars in respect of expenditures," made it "plain that the statute as a whole is calculated to discourage the making and use of contributions for purposes of corruption." 290 U.S. at 548, 54 S.Ct. at 291. Congress clearly had the power to further as it did that fundamental goal:

          "The power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress. If it can be seen that the means adopted are really calculated to attain the end, the degree of their necessity, the extent to which they conduce to the end, the closeness of the relationship between the means adopted, and the end to be attained, are matters for congressional determination alone." Id., at 547-548, 54 S.Ct. at 291.

          Pursuant to this undoubted power of Congress to vindicate the strong public interest in controlling corruption and other undesirable uses of money in connection with election campaigns, the Federal Election Campaign Act substantially broadened the reporting and disclosure requirements that so long have been a part of the federal law. Congress also concluded that limitations on contributions and expenditures were essential if the aims of the Act were to be achieved fully. In another major innovation, aimed at insulating candidates from the time-consuming and entangling task of raising huge sums of

Page 259

money, provision was made for public financing of political campaigns for federal office. A Federal Election Commission (FEC) was also created to administer the law.

          The disclosure requirements and the limitations on contributions and expenditures are challenged as invalid abridgments of the right of free speech protected by the First Amendment. I would reject these challenges. I agree with the Court's conclusion and much of its opinion with respect to sustaining the disclosure provisions. I am also in agreement with the Court's judgment upholding the limitations on contributions. I dissent, however, from the Court's view that the expenditure limitations of 18 U.S.C. § 608(c) and (e) (1970 ed., Supp. IV) violate the First Amendment.

          Concededly, neither the limitations on contributions nor those on expenditures directly or indirectly purport to control the content of political speech by candidates or by their supporters or detractors. What the Act regulates is giving and spending money, acts that have First Amendment significance not because they are themselves communicative with respect to the qualifications of the candidate, but because money may be used to defray the expenses of speaking or otherwise communicating about the merits or demerits of federal candidates for election. The act of giving money to political candidates, however, may have illegal or other undesirable consequences: it may be used to secure the express or tacit understanding that the giver will enjoy political favor if the candidate is elected. Both Congress and this Court's cases have recognized this as a mortal danger against which effective preventive and curative steps must be taken.

          Since the contribution and expenditure limitations are neutral as to the content of speech and are not motivated by fear of the consequences of the political speech

Page 260

of particular candidates or of political speech in general, this case depends on whether the nonspeech interests of the Federal Government in regulating the use of money in political campaigns are sufficiently urgent to justify the incidental effects that the limitations visit upon the First Amendment interests of candidates and their supporters.

          Despite its seeming struggle with the standard by which to judge this case, this is essentially the question the Court asks and answers in the affirmative with respect to the limitations on contributions which individuals and political committees are permitted to make to federal candidates. In the interest of preventing undue influence that large contributors would have or that the public might think they would have, the Court upholds the provision that an individual may not give to a candidate, or spend on his behalf if requested or authorized by the candidate to do so, more than $1,000 in any one election. This limitation is valid although it imposes a low ceiling on what individuals may deem to be their most effective means of supporting or speaking on behalf of the candidate i. e., financial support given directly to the candidate. The Court thus accepts the congressional judgment that the evils of unlimited contributions are sufficiently threatening to warrant restriction regardless of the impact of the limits on the contributor's opportunity for effective speech and in turn on the total volume of the candidate's political communications by reason of his inability to accept large sums from those willing to give.

          The congressional judgment, which I would also accept, was that other steps must be taken to counter the corrosive effects of money in federal election campaigns. One of these steps is § 608(e), which, aside from those funds that are given to the candidate or spent at his

Page 261

request or with his approval or cooperation limits what a contributor may independently spend in support or denigration of one running for federal office. Congress was plainly of the view that these expenditures also have corruptive potential; but the Court strikes down the provision, strangely enough claiming more insight as to what may improperly influence candidates than is possessed by the majority of Congress that passed this bill and the President who signed it. Those supporting the bill undeniably included many seasoned professionals who have been deeply involved in elective processes and who have viewed them at close range over many years.

          It would make little sense to me, and apparently made none to Congress, to limit the amounts an individual may give to a candidate or spend with his approval but fail to limit the amounts that could be spent on his behalf. Yet the Court permits the former while striking down the latter limitation. No more than $1,000 may be given to a candidate or spent at his request or with his approval or cooperation; but otherwise, apparently, a contributor is to be constitutionally protected in spending unlimited amounts of money in support of his chosen candidate or candidates.

          Let us suppose that each of two brothers spends $1 million on TV spot announcements that he has individually prepared and in which he appears, urging the election of the same named candidate in identical words. One brother has sought and obtained the approval of the candidate; the other has not. The former may validly be prosecuted under § 608(e); under the Court's view, the latter may not, even though the candidate could scarcely help knowing about and appreciating the expensive favor. For constitutional purposes it is difficult to see the difference between the two situations. I would take the word of those who know that limiting

Page 262

independent expenditures is essential to prevent transparent and widespread evasion of the contribution limits.

          In sustaining the contribution limits, the Court recognizes the importance of avoiding public misapprehension about a candi date's reliance on large contributions. It ignores that consideration in invalidating § 608(e). In like fashion, it says that Congress was entitled to determine that the criminal provisions against bribery and corruption, together with the disclosure provisions, would not in themselves be adequate to combat the evil and that limits on contributions should be provided. Here, the Court rejects the identical kind of judgment made by Congress as to the need for and utility of expenditure limits. I would not do so.

          The Court also rejects Congress' judgment manifested in § 608(c) that the federal interest in limiting total campaign expenditures by individual candidates justifies the incidental effect on their opportunity for effective political speech. I disagree both with the Court's assessment of the impact on speech and with its narrow view of the values the limitations will serve.

          Proceeding from the maxim that "money talks," the Court finds that the expenditure limitations will seriously curtail political expression by candidates and interfere substantially with their chances for election. The Court concludes that the Constitution denies Congress the power to limit campaign expenses; federal candidates and I would suppose state candidates, too are to have the constitutional right to raise and spend unlimited amounts of money in quest of their own election.

          As an initial matter, the argument that money is speech and that limiting the flow of money to the speaker violates the First Amendment proves entirely too much. Compulsory bargaining and the right to strike, both provided for or protected by federal law, inevitably have

Page 263

increased the labor costs of those who publish newspapers, which are in turn an important factor in the recent disappearance of many daily papers. Federal and state taxation directly removes from company coffers large amounts of money that might be spent on larger and better newspapers. The antitrust laws are aimed at preventing monopoly profits and price fixing, which gouge the consumer. It is also true that general price controls have from time to time existed and have been applied to the newspapers or other media. But it has not been suggested, nor could it be successfully, that these laws, and many others, are invalid because they siphon off or prevent the accumulation of large sums that would otherwise be available for communicative activities.

          In any event, as it should be unnecessary to point out, money is not always equivalent to or used for speech, even in the context of political campaigns. I accept the reality that communicating with potential voters is the heart of an election campaign and that widespread communication has become very expensive. There are, however, many expensive campaign activities that are not themselves communicative or remotely related to speech. Furthermore, campaigns differ among themselves. Some seem to spend much less money than others and yet communicate as much as or more than those supported by enormous bureaucracies with unlimited financing. The record before us no more supports the conclusion that the communicative efforts of congressional and Presidential candidates will be crippled by the expenditure limitations than it supports the contrary. The judgment of Congress was that reasonably effective campaigns could be conducted within the limits established by the Act and that the communicative efforts of these campaigns would not seriously suffer. In this posture

Page 264

of the case, there is no sound basis for invalidating the expenditure limitations, so long as the purposes they serve are legitimate and sufficiently substantial, which in my view they are.

          In the first place, expenditure ceilings reinforce the contribution limits and help eradicate the hazard of corruption. The Court upholds the overall limit of $25,000 on an individual's political contributions in a single election year on the ground that it helps reinforce the limits on gifts to a single candidate. By the same token, the expenditure limit imposed on candidates plays its own role in lessening the chance that the contribution ceiling will be violated. Without limits on total expenditures, campaign costs will inevitably and endlessly escalate. Pressure to raise funds will constantly build and with it the temptation to resort in "emergencies" to those sources of large sums, who, history shows, are sufficiently confident of not being caught to risk flouting contribution limits. Congress would save the candidate from this predicament by establishing a reasonable ceiling on all candidates. This is a major consideration in favor of the limitation. It should be added that many successful candidates will also be saved from large, overhanging campaign debts which must be paid off with money raised while holding public office and at a time when they are already preparing or thinking about the next campaign. The danger to the public interest in such situations is self-evident.

          Besides backing up the contribution provisions, which are aimed at preventing untoward influence on candidates that are elected, expenditure limits have their own potential for preventing the corruption of federal elections themselves. For many years the law has required the disclosure of expenditures as well as contributions. As Burroughs indicates, the corrupt use of money by candi-

Page 265

dates is as much to be feared as the corrosive influence of large contributions. There are many illegal ways of spending money to influence elections. One would be blind to history to deny that unlimited money tempts people to spend it on whatever money can buy to influence an election. On the assumption that financing illegal activities is low on the campaign organization's priority list, the expenditure limits could play a substantial role in preventing unethical practices. There just would not be enough of "that kind of money" to go around.

          I have little doubt in addition that limiting the total that can be spent will ease the candidate's understandable obsession with fundraising, and so free him and his staff to communicate in more places and ways unconnected with the fundraising function. There is nothing objectionable indeed it seems to me a weighty interest in favor of the provision in the attempt to insulate the political expression of federal candidates from the influence inevitably exerted by the endless job of raising increasingly large sums of money. I regret that the Court has returned them all to the treadmill.

          It is also important to restore and maintain public confidence in federal elections. It is critical to obviate or dispel the impression that federal elections are purely and simply a function of money, that federal offices are bought and sold or that political races are reserved for those who have the facility and the stomach for doing whatever it takes to bring together those interests, groups, and individuals that can raise or contribute large fortunes in order to prevail at the polls.

          The ceiling on candidate expenditures represents the considered judgment of Congress that elections are to be decided among candidates none of whom has overpowering advantage by reason of a huge campaign war chest. At least so long as the ceiling placed upon the candidates

Page 266

is not plainly too low, elections are not to turn on the difference in the amounts of money that candidates have to spend. This seems an acceptable purpose and the means chosen a common-sense way to achieve it. The Court nevertheless holds that a candidate has a constitutional right to spend unlimited amounts of money, mostly that of other people, in order to be elected. The holding perhaps is not that federal candidates have the constitutional right to purchase their election, but many will so interpret the Court's conclusion in this case. I cannot join the Court in this respect.

          I also disagree with the Court's judgment that § 608(a), which limits the amount of money that a candidate or his family may spend on his campaign, violates the Consti tution. Although it is true that this provision does not promote any interest in preventing the corruption of candidates, the provision does, nevertheless, serve salutary purposes related to the integrity of federal campaigns. By limiting the importance of personal wealth, § 608(a) helps to assure that only individuals with a modicum of support from others will be viable candidates. This in turn would tend to discourage any notion that the outcome of elections is primarily a function of money. Similarly, § 608(a) tends to equalize access to the political arena, encouraging the less wealthy, unable to bankroll their own campaigns, to run for political office.

          As with the campaign expenditure limits, Congress was entitled to determine that personal wealth ought to play a less important role in political campaigns than it has in the past. Nothing in the First Amendment stands in the way of that determination.

          For these reasons I respectfully dissent from the Court's answers to certified questions 3(a), 3(d), and 4(a).

Page 267

          I join the answers in Part IV of the Court's opinion, ante, at 141-142, n. 177, to the questions certified by the District Court relating to the composition and powers of the FEC, i. e., questions 8(a), 8(b), 8(c), 8(d) (with the qualifications stated infra, at 282-286), 8(e), and 8(f). I also agree with much of that part of the Court's opinion, including the conclusions that these questions are properly before us and ripe for decision, that the FEC's past acts are de facto valid, that the Court's judgment should be stayed, and that the FEC may function de facto while the stay is in effect.

          The answers to the questions turn on whether the FEC is illegally constituted because its members were not selected in the manner required by Art. II, § 2, cl. 2, the Appointments Clause. It is my view that with one exception Congress could endow a properly constituted commission with the powers and duties it has given the FEC.¹

          Section 437c creates an eight-member FEC. Two members, the Secretary of the Senate and the Clerk of the House of Representatives, are ex officio members

Page 268

without the right to vote or to hold an FEC office.² Of the remaining six, two are appointed by the President pro tempore of the Senate upon the recommendation of the majority and minority leaders of that body; two are similarly appointed by the Speaker of the House; and two are appointed by the President of the United States. The appointment of each of these six members is subject to confirmation by a majority of both Houses of Congress. § 437c(a) (1). Each member is appointed for a term of years; none can be an elected or appointed officer or employee of any branch of the Government at the time of his appointment. § 437c(a)(2), (3). The FEC is empowered to elect its own officers, § 437c(a)(5), and to appoint a staff director and general counsel. § 437c(f). Decisions are by a majority vote. § 437c(c).

          It is apparent that none of the members of the FEC is selected in a manner Art. II specifies for the appointment of officers of the United States. The Appointments Clause provides:

          "(The President) shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." ³

          Although two of the members of the FEC are initially selected by the President, his nominations are subject to confirmation by both Houses of Congress. Neither

Page 269

he, the head of any department, nor the Judiciary has any voice in the selection of the remaining members of the FEC. The challenge to the FEC, therefore, is that its members are officers of the United States the mode of whose appointment was required to, but did not, conform to the Appointments Clause. That challenge is well taken.

          The Appointments Clause applies only to officers of the United States whose appointment is not "otherwise provided for" in the Constitution. Senators and Congressmen are officers of the United States, but the Constitution expressly provides the mode of their selection.⁴ The Constitution also expressly provides that each House of Congress is to appoint its own officers. ⁵ But it is not contended here that FEC members are officers of either House selected pursuant to these express provisions, if for no other reason, perhaps, than that none of the Commissioners was selected in the manner specified by these provisions none of them was finally selected by either House acting alone as Art. I authorizes.

          The appointment power provided in Art. II also applies only to officers, as distinguished from employees,⁶ of the United States, but there is no claim the Commissioners are employees of the United States rather than officers. That the Commissioners are among those officers of the United States referred to in the Appointments Clause of Art. II is evident from the breadth of their

Page 270

assigned duties and the nature and importance of their assigned functions.

          The functions and duties of the FEC relate to three different aspects of the election laws: First, the provisions of the Criminal Code, 18 U.S.C. §§ 608-617 (1970 ed., Supp. IV), which establish major substantive limitations on political contributions and expenditures by individuals, political organizations, and candidates; second, the reporting and disclosure provisions contained in 2 U.S.C. §§ 431-437b (1970 ed., Supp. IV), these sections requiring the filing of detailed reports of political contributions and expenditures; and third, the provisions of 26 U.S.C. §§ 9001-9042 (1970 ed., Supp. IV) with respect to the public financing of Presidential primary and general election campaigns. From the "representative examples of (the FEC's) various powers" the Court describes, ante, at 109-113, it is plain that the FEC is the primary agency for the enforcement and administration of major parts of the election laws. It does not replace or control the executive agencies with respect to criminal prosecutions, but within the wide zone of its authority the FEC is independent of executive as well as congressional control except insofar as certain of its regulations must be laid before and not be disapproved by Congress. § 438(c); 26 U.S.C. §§ 9009(c), 9039(c) (1970 ed., Supp. IV). With duties and functions such as these, members of the FEC are plainly "officers of the United States" as that term is used in Art. II, § 2, cl. 2.

          It is thus not surprising that the FEC, in defending the legality of its members' appointments, does not deny that they are "officers of the United States" as that term is used in the Appointments Clause of Art. II.⁷ Instead,

Page 271

for reasons the Court outlines, ante, at 131-132, 133-134, its position appears to be that even if its members are officers of the United States, Congress may nevertheless appoint a majority of the FEC without participation by the President.⁸ This position that Congress may itself appoint the members of a body that is to administer a wide-ranging statute will not withstand examination in light of either the purpose and history of the Appointments Clause or of prior cases in this Court.

          The language of the Appointments Clause was not mere inadvertence. The matter of the appointment of officers of the new Federal Government was repeatedly debated by the Framers, and the final formulation of the Clause arrived at only after the most careful debate and consideration of its place in the overall design of government. The appointment power was a major building block fitted into the constitutional structure designed to avoid the accumulation or exercise of arbitrary power by the Federal Government. The basic approach was that official power should be divided among the Executive, Legislative, and Judicial Departments. The separation-of-powers principle was implemented by a series of provisions, among which was the knowing decision that Congress was to have no power whatsoever to appoint federal officers, except for the power of each House to appoint its own officers serving in the strictly legislative

Page 272

processes and for the confirming power of the Senate alone.

          The decision to give the President the exclusive power to initiate appointments was thoughtful and deliberate. The Framers were attempting to structure three departments of government so that each would have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was that the same persons should not both legislate and administer the laws.⁹ From the very outset, provision was made to prohibit members of Congress from holding office in another branch of the Government while also serving in Congress. There was little if any dispute about this incompatibility provision which survived in Art. I, § 6, of the Constitution as finally ratified.¹⁰ Today, no person may serve in Congress and at the same time be Attorney General, Secretary of State, a member of the judiciary, a United States attorney, or a member of the Federal Trade Commission or the National Labor Relations Board.

          Early in the 1787 Convention it was also proposed that members of Congress be absolutely ineligible during the term for which they were elected, and for a period thereafter, for appointment to any state or federal office.¹¹ But to meet substantial opposition to so stringent a provision, ineligibility for state office was first eliminated,¹² and under the language ultimately adopted, Congressmen

Page 273

were disqualified from being appointed only to those offices which were created, or for which the emoluments were increased, during their term of office.¹³ Offices not in this category could be filled by Representatives or Senators, but only upon resignation.

          Immediately upon settling the ineligibility provision, the Framers returned to the appointment power which they had several times before debated and postponed for later consideration.¹⁴ From the outset, there had been no dispute that the Executive alone should appoint, and not merely nominate, purely executive officers,¹⁵ but at one stage judicial officers were to be selected by the entire Congress.¹⁶ This provision was subsequently changed to lodge the power to choose judges in the Senate,¹⁷ which was later also given the power to appoint ambassadors and other public ministers.¹⁸ But following resolution of the dispute over the ineligibility provision, which served both to prevent members of Congress from appointing themselves to federal office and to limit their being appointed to federal office, it was determined that the appointment of all principal officers, whether executive or not, should originate with the President and that the Senate should have only the power of advice and consent.¹⁹ Inferior officers

Page 274

could be otherwise appointed, but not by Congress itself.²⁰ This allocation of the appointment power, in which for the first time the Executive had the power to initiate appointment to all principal offices and the Senate was empowered to advise and consent to nominations by the Executive,²¹ was made possible by adoption of the ineligibility provisions and was formulated as part of the fundamental compromises with respect to the composition of the Senate, the respective roles of the House and Senate, and the placement of the election of the President in the electoral college.

          Under Art. II as finally adopted, law enforcement authority was not to be lodged in elected legislative officials subject to political pressures. Neither was the Legislative Branch to have the power to appoint those who were to enforce and administer the law. Also, the appointment power denied Congress and vested in the President was not limited to purely executive officers but reached officers performing purely judicial functions as well as all other officers of the United States.

          I thus find singularly unpersuasive the proposition that because the FEC is implementing statutory policies with respect to the conduct of elections, which policies Congress has the power to propound, its members may be appointed by Congress. One might as well argue that the exclusive and plenary power of Congress over interstate commerce authorizes Congress to appoint the members of the Interstate Commerce Commission and of many other regulatory commissions; that its exclusive power to provide for patents and copyrights would permit the administration of the patent laws to be carried out by a congressional committee; or that the exclusive power of the Federal Government to establish post offices au-

Page 275

thorizes Congress itself or the Speaker of the House and the President pro tempore of the Senate to appoint postmasters and to enforce the postal laws.

          Congress clearly has the power to create federal offices and to define the powers and duties of those offices, Myers v. United States, 272 U.S. 52, 128-129, 47 S.Ct. 21, 29, 71 L.Ed. 160 (1926), but no case in this Court even remotely supports the power of Congress to appoint an officer of the United States aside from those officers each House is authorized by Art. I to appoint to assist in the legislative processes.

          In Myers, a postmaster of the first class was removed by the President prior to the expiration of his statutory four-year term. Challenging the President's power to remove him contrary to the statute, he sued for his salary. The challenge was rejected here. The Court said that under the Constitution the power to appoint the principal officers of the Executive Branch was an inherent power of the President:

          "(T)he reasonable implication, even in the absence of express words, was that as part of his executive power (the President) should select those who were to act for him under his direction in the execution of the laws." Id., at 117, 47 S.Ct., at 25.

          Further, absent express limitation in the Constitution, the President was to have unrestricted power to remove those administrative officers essential to him in discharging his duties. These fundamental rules were to extend to those bureau and department officers with power to issue regulations and to discharge duties of a quasi-judicial nature those members of "executive tribunals whose decisions after hearing affect interests of individuals." Id., 272 U.S. at 135, 47 S.Ct. at 31. As for inferior officers such as the plaintiff postmaster, the same principles were to govern if Congress chose to place the appointment in the President with the advice and consent of the Senate, as

Page 276

was the case in Myers. Under the Appointments Clause, Congress could but did not in the Myers case permit the appointment of inferior officers by the heads of departments, in which event, the Court said, Congress would have the authority to establish a term of office and limit the reasons for their removal. But in no circumstance could Congress participate in the removal:

          "(T)he court never has held, nor reasonably could hold, although it is argued to the contrary on behalf of the appellant, that the excepting clause enables Congress to draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of that clause, and to infringe the constitutional principle of the separation of governmental powers." Id., at 161, 47 S.Ct. at 40.

          Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), limited the reach of the Myers case. There the President attempted to remove a member of the Federal Trade Commission prior to the expiration of his statutory term and for reasons not specified in the statute. The Court ruled that the Presidential removal power vindicated in Myers related solely to "purely executive officers," 295 U.S., at 628, 55 S.Ct., at 874, from whom the Court sharply distinguished officers such as the members of the Federal Trade Commission who were to be free from political dominance and control, whose duties are "neither political nor executive, but predominantly quasi judicial and quasi legislative." Id., at 624, 55 S.Ct. at 872. Contrary to the dicta in Myers, such an officer was thought to occupy "no place in the executive department," and to exercise "no part of the executive power vested by the Constitution in the President," 295 U.S., at 628, 55 S.Ct., at 874, and to be immune from removal by the President except on terms specified by Congress. The Commissioners were described as being

Page 277

in part an administrative body carrying out legislative policies and in part an agency of the Judiciary, ibid.; such a body was intended to be "independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government." Id., at 625-626, 55 S.Ct. at 873. (Emphasis in original.)

          The holding in Humphrey's Executor was confirmed in Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958), but the Court did not question what Humphrey's Executor had expressly recognized that members of independent agencies are not independent of the Executive with respect to their appointments. Nor did either Wiener or Humphrey's Executor suggest that Congress could not only create the independent agency, specify its duties, and control the grounds for removal of its members but could also itself appoint or remove them without the participation of the Executive Branch of the Government. To have so held would have been contrary to the Appointments Clause as the Myers case recognized.

          It is said that historically Congress has used its own officers to receive and file the reports of campaign expenditures and contributions as required by law and that this Court should not interfere with this practice. But the Act before us creates a separate and independent campaign commission with members, some nominated by the President, who have specified terms of office, are not subject to removal by Congress, and are free from congressional control in their day-to-day functions. The FEC, it is true, is the designated authority with which candidates and political committees must file reports of contributions and expenditures, as required by the Act. But the FEC may also make rules and regulations with respect to the disclosure requirements, may investigate reported violations, issue subpoenas, hold its own hear-

Page 278

ings and institute civil enforcement proceedings in its own name. Absent a request by the FEC, it would appear that the Attorney General has no role in the civil enforcement of the reporting and disclosure requirements. The FEC may also issue advisory opinions with respect to the legality of any particular activities so as to protect those persons who in good faith have conducted themselves in reliance on the FEC's opinion. These functions go far beyond mere information gathering, and there is no long history of lodging such enforcement powers in congressional appointees.

          Nor do the FEC's functions stop with policing the reporting and disclosure requirements of the Act. The FEC is given express power to administer, obtain compliance with, and "to formulate general policy" ²² with respect to 18 U.S.C. §§ 608-617, so much so that the Act expressly provides that "(t)he Commission has primary jurisdiction with respect to the civil enforcement of such provisions." ²³ Following its own proceedings the FEC may request the Attorney General to bring civil enforcement proceedings, a request which the Attorney General must honor.²⁴ And good-faith con duct taken in accord-

Page 279

ance with the FEC's advisory opinions as to whether any transaction or activity would violate any of these criminal provisions "shall be presumed to be in compliance with" these sections.²⁵ § 437f(b). Finally, the FEC has the central role in administering and enforcing the provisions

Page 280

of Title 26 contemplating the public financing of political campaigns. ²⁶

          It is apparent that the FEC is charged with the enforcement of the election laws in major respects. Indeed, except for the conduct of criminal proceedings, it would appear that the FEC has the entire responsibility for enforcement of the statutes at issue here. By no stretch of the imagination can its various functions in this respect be considered mere adjuncts to the legislative process or to the powers of Congress to judge the election and qualifications of its own members.

          It is suggested, without accounting for the President's role in appointing some of its members that the FEC would be willing to forgo its civil enforcement powers and that absent these functions, it is left with nothing that purely legislative officers may not do. The difficulty is that the statute invests the FEC not only with the authority but with the duties that unquestionably make its members officers of the United States, fully as much as the members of other commissions charged with the major responsibility for administering statutes. What is more, merely forgoing its authority to bring suit would still leave the FEC with the power to issue rules and regulations, its advisory opinion authority, and primary duties to enforce the Act. Absent notice and hearing by the FEC and a request on its part, it would not appear that the Executive Branch of the Government would have any authority under the statute to institute civil enforcement proceedings with respect to the reporting and disclosure requirements or the relevant provisions of Titles 18 and 26.

          There is no doubt that the development of the admin-

Page 281

istrative agency in response to modern legislative and administrative need has placed severe strain on the separation-of-powers principle in its pristine formulation. See Kilbourn v. Thompson, 103 U.S. 168, 191, 26 L.Ed. 377 (1881). Any notion that the Constitution bans any admixture of powers that might be deemed legislative, executive, and judicial has had to give way. The independent agency has survived attacks from various directions: that it exercises invalidly delegated legislative power, Sunshine Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940); that it invalidly exer cises judicial power, ibid.; and that its functions are so executive in nature that its members must be subject to Presidential control, Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed.2d 1611 (1935). Until now, however, it has not been insisted that the commands of the Appointments Clause must also yield to permit congressional appointments of members of a major agency. With the Court, I am not convinced that we should create a broad exception to the requirements of that Clause that all officers of the United States be appointed in accordance with its terms. The provision applies to all officers, however their duties may be classified; and even if some of the FEC's functions, such as rulemaking, are purely legislative, I know of no authority for the congressional appointment of its own agents to make binding rules and regulations necessary to or advisable for the administration and enforcement of a major statute where the President has not participated either in the appointment of each of the administrators or in the fashioning of the rules or regulations which they propound.

          I do not dispute the legislative power of Congress coercively to gather and make available for public inspection massive amounts of information relevant to the legislative process. Its own officers may, as they have

Page 282

done for years, receive and file contribution and expenditure reports of candidates and political committees. Arguably, the Commissioners, although not properly appointed by the President, should at least be able to perform this function. But the members of the FEC are appointed for definite terms of office, are not removable by the President or by Congress, and even if their duties were to be severely limited, they would appear to remain Art. II officers. In any event, the task of gathering and publishing campaign finance information has been one of the specialties of the officers of the respective Houses, and these same officers under the present law continue to receive such information and to act as custodians for the FEC, at least with respect to the Senate and House political campaigns. They are also instructed to cooperate with the FEC. § 438(d).

          For these reasons I join in the Court's answers to certified questions 8(a), 8(b), 8(c), 8(e) and 8(f), and with the following reservations to question 8(d).

          Question 8(d) asks whether § 438(c) violates the constitutional rights of one or more of the plaintiffs in that "it empowers the Federal Election Commission to make rules under the F.E.C.A. in the manner specified therein." Section 438(c) imposes certain preconditions to the effectiveness of "any rule or regulation under this section . . .," but does not itself authorize the issuance of rules or regulations. That authorization is to be found in § 438(a)(10), which includes among the duties of the FEC the task of prescribing "rules and regulations to carry out the provisions of this subchapter, in accordance with the provisions of subsection (c)." The "subchapter" referred to is the subchapter dealing with federal election campaigns and the reports of contributions and expenditures required to be filed with the FEC. ²⁷ Subsection

Page 283

(c), which is the provision expressly mentioned in question 8(d), requires that any rule or regulation prescribed by the FEC under § 438 shall be transmitted to the Senate or the House, or to both as thereafter directed. After 30 legislative days,²⁸ the rule or regulation will become effective unless (1) either House has disapproved the rule if it relates to reports by Presidential candidates or their supporting committees; (2) the House has disapproved it if it relates to reports to be filed by House candidates or their committees; or (3) the Senate has disapproved it if the rule relates to reports by Senate candidates or their related committees.

          By expressly referring to subsection (c), question 8(d) appears to focus on the disapproval requirement; but the Court's answer is not responsive in these terms. Rather, the Court expressly disclaims holding that the FEC's rules and regulations are invalid because of the requirement that they are subject to disapproval by one or both Houses of Congress. Ante, at 140 n. 176. As I understand it, the FEC's rules and regulations, whether or not issued in compliance with § 438(c), are invalid because the members of the FEC have not been appointed in accordance with Art. II. To the extent that this is the basis for the Court's answer to the question, I am in agreement.

          If the FEC members had been nominated by the President and confirmed by the Senate as provided in Art. II,

Page 284

nothing in the Constitution would prohibit Congress from empowering the Commission to issue rules and regulations without later participation by, or consent of, the President or Congress with respect to any particular rule or regulation or initially to adjudicate questions of fact in accordance with a proper interpretation of the statute. Sunshine Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940); RFC v. Bankers Trust Co., 318 U.S. 163, 63 S.Ct. 515, 87 L.Ed. 680 (1943); Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). The President must sign the statute creating the rulemaking authority of the agency or it must have been passed over his veto, and he must have nominated the members of the agency in accordance with Art. II; but agency regulations issued in accordance with the statute are not subject to his veto even though they may be substantive in character and have the force of law.

          I am also of the view that the otherwise valid regulatory power of a properly created independent agency is not rendered constitutionally infirm, as violative of the President's veto power, by a statutory provision subjecting agency regulations to disapproval by either House of Congress. For a bill to become law it must pass both Houses and be signed by the President or be passed over his veto. Also, "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary . . ." is likewise subject to the veto power.²⁹ Under § 438(c) the FEC's regulations are subject to disapproval; but for a regulation to become effective, neither House need approve it, pass it, or take any action at all with respect to it. The regulation becomes effective by nonaction. This no more invades the President's powers than does a regulation not required to be laid before Congress. Congressional influence over the substantive content of agency regulation may be en-

Page 285

hanced, but I would not view the power of either House to disapprove as equivalent to legislation or to an order, resolution, or vote requiring the concurrence of both Houses.³⁰

          In terms of the substantive content of regulations and the degree of congressional influence over agency lawmaking, I do not suggest that there is no difference between the situation where regulations are subject to disapproval by Congress and the situation where the agency need not run the congressional gantlet. But the President's veto power, which gives him an important role in the legislative process, was obviously not considered an inherently executive function. Nor was its principal aim to provide another check against poor legislation. The major purpose of the veto power appears to have been to shore up the Executive Branch and to provide it with some bargaining and survival power against what the Framers feared would be the overweening power of legislators. As Hamilton said, the veto power was to provide a defense against the legislative department's intrusion on the rights and powers of other departments; without such power, "the legislative and executive powers might speedily come to be blended in the same hands." ³¹

          I would be much more concerned if Congress purported to usurp the functions of law enforcement, to control the outcome of particular adjudications, or to pre-empt the President's appointment power; but in the

Page 286

light of history and modern reality, the provision for congressional disapproval of agency regulations does not appear to transgress the constitutional design, at least where the President has agreed to legislation establishing the disapproval procedure or the legislation has been passed over his veto. It would be considerably different if Congress itself purported to adopt and propound regulations by the action of both Houses. But here no action of either House is required for the agency rule to go into effect, and the veto power of the President does not appear to be implicated.

           Mr. Justice MARSHALL, concurring in part and dissenting in part.

          I join in all of the Court's opinion except Part I-C-2, which deals with 18 U.S.C. § 608(a) (1970 ed., Supp. IV). That section limits the amount a candidate may spend from his personal funds, or family funds under his control, in connection with his campaigns during any calendar year. See ante, at 51-52, n. 57. The Court invalidates § 608(a) as violative of the candidate's First Amendment rights. "(T)he First Amendment," the Court explains, "simply cannot tolerate § 608(a)'s restriction upon the freedom of a candidate to speak without legislative limit on behalf of his own candidacy." Ante, at 54. I disagree.

          To be sure, § 608(a) affects the candidate's exercise of his First Amendment rights. But unlike the other expenditure limitations contained in the Act and invalidated by the Court the limitation on independent expenditures relative to a clearly identified candidate, § 608(e), and the limitations on overall candidate expenditures, § 608(c) the limitations on expenditures by candidates from personal resources contained in § 608(a) need never prevent the speaker from spending another

Page 287

dollar to communicate his ideas. Section 608(a) imposes no overall limit on the amount a candidate can spend; it simply limits the "contribution" a candidate may make to his own campaign. The candidate remains free to raise an unlimited amount in contributions from others. So long as the candidate does not contribute to his campaign more than the amount specified in § 608(a), and so long as he does not accept contributions from others in excess of the limitations imposed by § 608(b), he is free to spend without limit on behalf of his campaign.

          It is significant, moreover, that the ceilings imposed by § 608(a) on candidate expenditures from personal resources are substantially higher than the $1,000 limit imposed by § 608(e) on independent expenditures by noncandidates. Presidential and Vice Presidential candidates may contribute $50,000 of their own money to their campaigns, Senate candidates $35,000, and most House candidates $25,000. Those ceilings will not affect most candidates. But they will admittedly limit the availability of personal funds for some candidates, and the question is whether that limitation is justified.

          The Court views "(t)he ancillary interest in equalizing the relative financial resources of candidates" as the relevant rationale for § 608(a), and deems that interest insufficient to justify § 608(a). Ante, at 54. In my view the interest is more precisely the interest in promoting the reality and appearance of equal access to the political arena. Our ballot-access decisions serve as a reminder of the importance of the general interest in promoting equal access among potential candidates. See, e. g., Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). While admittedly those cases dealt with barriers to entry different from those we consider here, the barriers to which § 608(a) is di-

Page 288

rected are formidable ones, and the interest in removing them substantial.

          One of the points on which all Members of the Court agree is that money is essential for effective communication in a political campaign. It would appear to follow that the candidate with a substantial personal fortune at his disposal is off to a significant "headstart." Of course, the less wealthy candidate can potentially overcome the disparity in resources through contributions from others. But ability to generate contributions may itself depend upon a showing of a financial base for the campaign or some demonstration of pre-existing support, which in turn is facilitated by expenditures of substantial personal sums. Thus the wealthy candidate's immediate access to a substantial personal fortune may give him an initial advantage that his less wealthy opponent can never overcome. And even if the advantage can be overcome, the perception that personal wealth wins elections may not only discourage potential candidates without significant personal wealth from entering the political arena, but also undermine public confidence in the integrity of the electoral process.¹

          The concern that candidacy for public office not become, or appear to become, the exclusive province of the wealthy assumes heightened significance when one considers the impact of § 608(b), which the Court today upholds. That provision prohibits contributions from individuals and groups to candidates in excess of $1,000, and contributions from political committees in excess of $5,000. While the limitations on contributions are neutral in the sense that

Page 289

all candidates are foreclosed from accepting large contributions, there can be no question that large contributions generally mean more to the candidate without a substantial personal fortune to spend on his campaign. Large contributions are the less wealthy candidate's only hope of countering the wealthy candidate's immediate access to substantial sums of money. With that option removed, the less wealthy candidate is without the means to match the large initial expenditures of money of which the wealthy candidate is capable. In short, the limitations on contributions put a premium on a candidate's personal wealth.

          In view of § 608(b)'s limitations on contributions, then, § 608(a) emerges not simply as a device to reduce the natural advantage of the wealthy candidate, but as a provision providing some symmetry to a regulatory scheme that otherwise enhances the natural advantage of the wealthy.² Regardless of whether the goal of equalizing access would justify a legislative limit on personal candidate expenditures standing by itself, I think it clear that that goal justifies § 608(a)'s limits when they are considered in conjunction with the remainder of the

Page 290

Act. I therefore respectfully dissent from the Court's invalidation of § 608(a).

           Mr. Justice BLACKMUN, concurring in part and dissenting in part.

          I am not persuaded that the Court makes, or indeed is able to make, a principled constitutional distinction between the contribution limitations, on the one hand, and the expenditure limitations on the other, that are involved here. I therefore do not join Part I-B of the Court's opinion or those portions of Part I-A that are consistent with Part I-B. As to those, I dissent.

          I also dissent, accordingly, from the Court's responses to certified questions 3(b), (c), and (h). I would answer those questions in the affirmative.

          I do join the remainder of the Court's opinion and its answers to the other certified questions.

           Mr. Justice REHNQUIST, concurring in part and dissenting in part.

          I concur in Parts I, II, and IV of the Court's opinion. I concur in so much of Part III of the Court's opinion as holds that the public funding of the cost of a Presidential election campaign is a permissible exercise of congressional authority under the power to tax and spend granted by Art. I, but dissent from Part III-B-1 of the Court's opinion, which holds that certain aspects of the statutory treatment of minor parties and independent candidates are constitutionally valid. I state as briefly as possible my reasons for so doing.

          The limits imposed by the First and Fourteenth Amendments on governmental action may vary in their stringency depending on the capacity in which the government is acting. The government as proprietor, Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), is, I believe,

Page 291

permitted to affect putatively protected interests in a manner in which it might not do if simply proscribing conduct across the board. Similarly, the government as employer, Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), may prescribe conditions of employment which might be constitutionally unacceptable if enacted into standards of conduct made applicable to the entire citizenry.

          For the reasons stated in the dissenting opinion of Mr. Justice Jackson in Beauharnais v. Illinois, 343 U.S. 250, 288-295, 72 S.Ct. 725, 746-750, 96 L.Ed. 919 (1952), and by Mr. Justice Harlan in his dissenting opinion in Roth v. United States, 354 U.S. 476, 500-503, 77 S.Ct. 1304, 1317-1318, 1 L.Ed.2d 1498 (1957), I am of the opinion that not all of the strictures which the First Amendment imposes upon Congress are carried over against the States by the Fourteenth Amendment, but rather that it is only the "general principle" of free speech, Gitlow v. New York, 268 U.S. 652, 672, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (1925) (Holmes J., dissenting), that the latter incorporates. See Palko v. Connecticut, 302 U.S. 319, 324-325, 58 S.Ct. 149, 151-152, 82 L.Ed. 288 (1937).

          Given this view, cases which deal with state restrictions on First Amendment freedoms are not fungible with those which deal with restrictions imposed by the Federal Government, and cases which deal with the government as employer or proprietor are not fungible with those which deal with the government as a lawmaker enacting criminal statutes applying to the population generally. The statute before us was enacted by Congress, not with the aim of managing the Government's property nor of regulating the conditions of Government employment, but rather with a view to the regulation of the citizenry as a whole. The case for me, then, presents the First Amendment interests of the appellants at their strongest, and the legislative authority of Congress in the position where it is most vulnerable to First Amendment attacks.

Page 292

          While this approach undoubtedly differs from some of the underlying assumptions in the opinion of the Court, opinions are written not to explore abstract propositions of law but to decide concrete cases. I therefore join in all of the Court's opinion except Part III-B-1, which sustains, against appellants' First and Fifth Amendment challenges, the disparities found in the congressional plan for financing general Presidential elections between the two major parties, on the one hand, and minor parties and candidacies on the other.

          While I am not sure that I agree with the Court's comment, ante, at 95, that "public financing is generally less restrictive of access to the electoral process than the ballot-access regulations dealt with in prior cases," in any case that is not, under my view, an adequate answer to appellants' claim. The electoral laws relating to ballot access which were examined in Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974); American Party of Texas v. White, 415 U.S. 767, 780, 94 S.Ct. 1296, 1305, 39 L.Ed.2d 744 (1974); and Storer v. Brown, 415 U.S. 724, 729-730, 94 S.Ct. 1274, 1278, 39 L.Ed.2d 714 (1974); all arose out of state efforts to regulate minor party candidacies and the actual physical size of the ballot. If the States are to afford a republican form of government, they must by definition provide for general elections and for some standards as to the contents of the official ballots which will be used at those elections. The decision of the state legislature to enact legislation embodying such regulations is therefore not in any sense an optional one; there must be some standards, however few, which prescribe the contents of the official ballot if the popular will is to be translated into a choice among candidates. Dealing thus by necessity with these issues, the States have strong interests in "limiting places on the ballot to those candidates who demonstrate substantial popular support," ante, at 96. They have a like interest in discouraging

Page 293

"splintered parties and unrestrained factionalism" which might proliferate the number of candidates on a state ballot so as to make it virtually unintelligible to the average voter. Storer v. Brown, supra, 415 U.S. at 736, 94 S.Ct. at 1282.

          Congress, on the other hand, while undoubtedly possessing the legislative authority to undertake the task if it wished, is not obliged to address the question of public financing of Presidential elections at all. When it chooses to legislate in this area, so much of its action as may arguably impair First Amendment rights lacks the same sort of mandate of necessity as does a State's regulation of ballot access.

          Congress, of course, does have an interest in not "funding hopeless candidacies with large sums of public money," ante, at 96, and may for that purpose legitimately require " 'some preliminary showing of a significant modicum of support,' Jenness v. Fortson, (403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971)), as an eligibility requirement for public funds." Ante, at 96. But Congress in this legislation has done a good deal more than that. It has enshrined the Republican and Democratic Parties in a permanently preferred position, and has established requirements for funding minor-party and independent candidates to which the two major parties are not subject. Congress would undoubtedly be justified in treating the Presidential candidates of the two major parties differently from minor-party or independent Presidential candidates, in view of the long demonstrated public support of the former. But because of the First Amendment overtones of the appellants' Fifth Amendment equal protection claim something more than a merely rational basis for the difference in treatment must be shown, as the Court apparently recognizes. I find it impossible to subscribe to the Court's reasoning that because no third party has posed a credible threat to the two major parties in Presiden tial¢s294¢s

Page 294

elections since 1860, Congress may by law attempt to assure that this pattern will endure forever.

          I would hold that, as to general election financing, Congress has not merely treated the two major parties differently from minor parties and independents, but has discriminated in favor of the former in such a way as to run afoul of the Fifth and First Amendments to the United States Constitution.

^{1. Federal Election Campaign Act of 1971, 86 Stat. 3, as amended by the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. The pertinent portions of the legislation are set forth in the Appendix to this opinion.}

^2. 171 U.S.App.D.C. 172, 519 F.2d 821 (1975).

^3. The Revenue Act of 1971, Title VIII, 85 Stat. 562, as amended, 87 Stat. 138, and further amended by the Federal Election Campaign Act Amendments of 1974, § 403 et seq., 88 Stat. 1291. This Subtitle consists of two parts: Chapter 95 deals with funding national party conventions and general election campaigns for President, and Chapter 96 deals with matching funds for Presidential primary campaigns.

^4. "s 437h. Judicial review.

"(a) . . .

"The Commission, the national committee of any political party, or any individual eligible to vote in any election for the office of President of the United States may institute such actions in the appropriate district court of the United States, including actions for declaratory judgment, as may be appropriate to construe the constitutionality of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18. The district court immediately shall certify all questions of constitutionality of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18, United States Code, to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.

"(b) . . .

"Notwithstanding any other provision of law, any decision on a matter certified under subsection (a) of this section shall be reviewable by appeal directly to the Supreme Court of the United States. Such appeal shall be brought no later than 20 days after the decision of the court of appeals.

"(c) . . .

"It shall be the duty of the court of appeals and of the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of any matter certified under subsection (a) of this section."

^5. Center for Public Financing of Elections, Common Cause, the League of Women Voters of the United States, Chellis O'Neal Gregory, Norman F. Jacknis, Louise D. Wides, Daniel R. Noyes, Mrs. Edgar B. Stern, Charles P. Taft, John W. Gardner, and Ruth Clusen.

^6. The Court of Appeals also suggested in its en banc order that the issues arising under Subtitle H (relating to the public financing of Presidential campaigns) might require, under 26 U.S.C. § 9011(b) (1970 ed., Supp. IV), a different mode of review from the other issues raised in the case. The court suggested that a three-judge District Court should consider the constitutionality of these provisions in order to protect against the contingency that this Court might eventually hold these issues to be subject to determination by a three-judge court, either under § 9011(b), or 28 U.S.C. §§ 2282, 2284. 171 U.S.App.D.C. 168, 170, 519 F.2d 817, 819 (1975). The case was argued simultaneously to both the Court of Appeals, sitting en banc, and a three-judge District Court. The three-judge court limited its consideration to issues under Subtitle H. The three-judge court adopted the Court of Appeals' opinion on these questions in toto and simply entered an order with respect to those matters. 401 F.Supp. 1235. Thus, two judgments are before us one from each court upholding the constitutionality of Subtitle H, though the two cases before the Court will generally be referred to hereinafter in the singular. Since the jurisdiction of this Court to hear at least one of the appeals is clear, we need not resolve the jurisdictional ambiguities that occasioned the joint sitting of the Court of Appeals and the three-judge court.

^7. The court held one provision, § 437a, unconstitutionally vague and overbroad on the ground that the provision is " 'susceptible to a reading necessitating reporting by groups whose only connection with the elective process arises from completely nonpartisan public discussion of issues of public importance.' " 171 U.S.App.D.C., at 183, 519 F.2d, at 832. No appeal has been taken from that holding.

^8. The court recognized that some of the powers delegated to the Commission, when exercised in a concrete context, may be predominantly executive or judicial or unrelated to the Commission's legislative function; however, since the Commission had not yet exercised most of these challenged powers, consideration of the constitutionality of those grants of authority was postponed. See n. 157, infra.

^9. See n. 4, supra.

^10. This Court has held, for instance, that an organization "may assert, on behalf of its members, a right personal to them to be protected from compelled disclosure . . . of their affiliation." NAACP v. Alabama, 357 U.S. 449, 458, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958). See also Bates v. Little Rock, 361 U.S. 516, 523 n. 9, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960). Similarly, parties with sufficient concrete interests at stake have been held to have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights. Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962); Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939).

^11. Accordingly, the two relevant certified questions are answered as follows:

1. Does the first sentence of § 315(a) of the Federal Election Campaign Act, as amended, 2 U.S.C. § 437h(a) (1970 ed., Supp. IV), in he context of this action, require courts of the United States to render advisory opinions in violation of the "case or controversy" requirement of Article III, § 2, of the Constitution of the United States? NO.

2. Has each of the plaintiffs alleged sufficient injury to his constitutional rights enumerated in the following questions to create a constitutional "case or controversy" within the judicial power under Article III? YES.

^12. See 18 U.S.C. §§ 608(b)(1), (3) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 189. An organization registered as a political committee for not less than six months which has received contributions from at least 50 persons and made contributions to at least five candidates may give up to $5,000 to any candidate for any election. 18 U.S.C. § 608(b)(2) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 189. Other groups are limited to making contributions of $1,000 per candidate per election.

^13. See 18 U.S.C. § 608(e) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 193-194.

^14. See 18 U.S.C. § 608(a) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 187-189.

^15. See 18 U.S.C. § 608(c) (1970 ed., Supp. IV), set forth in the Appendix, infra, at 190-192.

^16. Article I, § 4, of the Constitution grants Congress the power to regulate elections of members of the Senate and House of Representatives. See Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932); Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884). Although the Court at one time indicated that party primary contests were not "elections" within the meaning of Art. I, § 4, Newberry v. United States, 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed. 913 (1921), it later held that primary elections were within the Constitution's grant of authority to Congress. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). The Court has also recognized broad congressional power to legislate in connection with the elections of the President and Vice President. Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484 (1934). See Part III, infra.

^17. The nongovernmental appellees argue that just as the decibels emitted by a sound truck can be regulated consistently with the First Amendment, Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed.2d 513 (1949), the Act may restrict the volume of dollars in political campaigns without impermissibly restricting freedom of speech. See Freund, Commentary in A. Rosenthal, Federal Regulation of Campaign Finance: Some Constitutional Questions 72 (1971). This comparison underscores a fundamental misconception. The decibel restriction upheld in Kovacs limited the manner of operating a soundtruck but not the extent of its proper use. By contrast, the Act's dollar ceilings restrict the extent of the reasonable use of virtually every means of communicating information. As the Kovacs Court emphasized, the nuisance ordinance only barred sound trucks from broadcasting "in a loud and raucous manner on the streets," 336 U.S., at 89, 69 S.Ct., at 454, and imposed "no restriction upon the communication of ideas or discussion of issues by the human voice, by newspapers, by pamphlets, by dodgers," or by soundtrucks operating at a reasonable volume. Ibid. See Saia v. New York, 334 U.S. 558, 561-562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574 (1948).

^18. Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline.

^19. Political parties that fail to qualify a candidate for a position on the ballot are classified as "persons" and are subject to the $1,000 independent expenditure ceiling. See 18 U.S.C. §§ 591(g), (i), 608(e)(1), (f) (1970 ed., Supp. IV). Institutional press facilities owned or controlled by candidates or political parties are also subject to expenditure limits under the Act. See 18 U.S.C. §§ 591(f)(4)(A), 608(c)(2)(B), (e)(1) (1970 ed., Supp. IV).

Unless otherwise indicated all subsequent statutory citations in Part I of this opinion are to Title 18 of the United States Code, 1970 edition, Supplement IV.

^20. The record indicates that, as of January 1, 1975, one full-page advertisement in a daily edition of a certain metropolitan newspaper cost $6,971.04 almost seven times the annual limit on expenditures "relative to" a particular candidate imposed on the vast majority of individual citizens and associations by § 608(e)(1).

^21. The statistical findings of fact agreed to by the parties in the District Court indicate that 17 of 65 major-party senatorial candidates in 1974 spent more than the combined primary-election, general-election, and fundraising limitations imposed by the Act. §§ 591(f)(4)(H), 608(c)(1)(C), (D). The 1972 senatorial figures showed that 18 of 66 major-party candidates exceeded the Act's limitations. This figure may substantially underestimate the number of candidates who exceeded the limits provided in the Act, since the Act imposes separate ceilings for the primary election, the general election, and fundraising, and does not permit the limits to be aggregated. § 608(c)(3). The data for House of Representatives elections are also skewed, since statistics reflect a combined $168,000 limit instead of separate $70,000 ceilings for primary and general elections with up to an additional 20% Permitted for fundraising. §§ 591(f)(4)(H), 608(c)(1)(E). Only 22 of the 810 major-party House candidates in 1974 and 20 of the 816 major-party candidates in 1972 exceeded the $168,000 figure. Both Presidential candidates in 1972 spent in excess of the combined Presidential expenditure ceilings. §§ 608(c) (1)(A), (B).

^22. Other factors relevant to an assessment of the "intensity" of the support indicated by a contribution include the contributor's financial ability and his past contribution history.

^23. Statistical findings agreed to by the parties reveal that approximately 5.1% Of the $73,483,613 raised by the 1,161 candidates for Congress in 1974 was obtained in amounts in excess of $1,000. In 1974, two major-party senatorial candidates, Ramsey Clark and Senator Charles Mathias, Jr., operated large-scale campaigns on contributions raised under a voluntarily imposed $100 contribution limitation.

^24. The Act exempts from the contribution ceiling the value of all volunteer services provided by individuals to a candidate or a political committee and excludes the first $500 spent by volunteers on certain categories of campaign-related activities. §§ 591(e)(5)(A)-(D). See infra, at 36-37.

The Act does not define the phrase "for the purpose of influencing" an election that determines when a gift, loan, or advance constitutes a contribution. Other courts have given that phrase a narrow meaning to alleviate various problems in other contexts. See United States v. National Comm. for Impeachment, 469 F.2d 1135, 1139-1142 (CA2 1972); American Civil Liberties Union v. Jennings, 366 F.Supp. 1041, 1055-1057 (DC 1973) (three-judge court), vacated as moot sub nom. Staats v. American Civil Liberties Union, 422 U.S. 1030, 95 S.Ct. 2646, 45 L.Ed.2d 686 (1975). The use of the phrase presents fewer problems in connection with the definition of a contribution because of the limiting connotation created by the general understanding of what constitutes a political contribution. Funds provided to a candidate or political party or campaign committee either directly or indirectly through an intermediary constitute a contribution. In addition, dollars given to another person or organization that are earmarked for political purposes are contributions under the Act.

^25. Expenditures by persons and associations that are "authorized or requested" by the candidate or his agents are treated as contributions under the Act. See n. 53, infra.

^26. Contribution limitations alone would not reduce the greater potential voice of affluent persons and well-financed groups, who would remain free to spend unlimited sums directly to promote candidates and policies they favor in an effort to persuade voters.

^27. Yet, a ceiling on the size of contributions would affect only indirectly the costs of political campaigns by making it relatively more difficult for candidates to raise large amounts of money. In 1974, for example, 94.9% Of the funds raised by candidates for Congress came from contributions of $1,000 or less, see n. 23, supra. Presumably, some or all of the contributions in excess of $1,000 could have been replaced through efforts to raise additional contributions from persons giving less than $1,000. It is the Act's campaign expenditure limitations, § 608(c), not the contribution limits, that directly address the overall scope of federal election spending.

^28. The Court of Appeals' opinion in this case discussed a number of the abuses uncovered after the 1972 elections. See 171 U.S.App.D.C., at 190-191, and nn. 36-38, 519 F.2d, at 839-840, and nn. 36-38.

^29. Although the Court in Letter Carriers found that this interest was constitutionally sufficient to justify legislation prohibiting federal employees from engaging in certain partisan political activities, it was careful to emphasize that the limitations did not restrict an employee's right to express his views on political issues and candidates. 413 U.S., at 561, 568, 575-576, 579, 93 S.Ct., at 2888, 2892, 2895-2896, 2897. See n. 54, infra.

^30. The Act's disclosure provisions are discussed in Part II, infra.

^31. While providing significant limitations on the ability of all individuals and groups to contribute large amounts of money to candidates, the Act's contribution ceilings do not foreclose the making of substantial contributions to candidates by some major special-interest groups through the combined effect of individual contributions from adherents or the proliferation of political funds each authorized under the Act to contribute to candidates. As a prime example, § 610 permits corporations and labor unions to establish segregated funds to solicit voluntary contributions to be utilized for political purposes. Corporate and union resources without limitation may be employed to administer these funds and to solicit contributions from employees, stockholders, and union members. Each separate fund may contribute up to $5,000 per candidate per election so long as the fund qualifies as a political committee under § 608(b)(2). See S.Rep. No. 93-1237, pp. 50-52 (1974), U.S.Code Cong. & Admin.News 1974, pp. 5587, 5618; Federal Election Commission, Advisory Opinion 1975-23, 40 Fed.Reg. 56584 (1975).

The Act places no limit on the number of funds that may be formed through the use of subsidiaries or divisions of corporations, or of local and regional units of a national labor union. The potential for proliferation of these sources of contributions is not insignificant. In 1972, approximately 1,824,000 active corporations filed federal income tax returns. Internal Revenue Service, Preliminary Statistics of Income 1972, Corporation Income Tax Returns, p. 1 (Pub. 159 (11-74)). (It is not clear whether this total includes subsidiary corporations where the parent filed a consolidated return.) In the same year, 71,409 local unions were chartered by national unions. Department of Labor, Bureau of Labor Statistics, Directory of National Unions and Employee Associations 1973, p. 87 (1974).

The Act allows the maximum contribution to be made by each unit's fund provided the decision or judgment to contribute to particular candidates is made by the fund independently of control or direction by the parent corporation or the national or regional union. See S.Rep. No. 93-1237, pp. 51-52 (1974).

^32. The Act's limitations applicable to both campaign expenditures and a candidate's personal expenditures on his own behalf are scaled to take account of the differences in the amounts of money required for congressional and Presidential campaigns. See § 608(a)(1), (c)(1)(A)-(E).

^33. In this discussion, we address only the argument that the contribution limitations alone impermissibly discriminate against non-incumbents. We do not address the more serious argument that these limitations, in combination with the limitation on expenditures by individuals and groups, the limitation on a candidate's use of his own personal and family resources, and the overall ceiling on campaign expenditures invidiously discriminate against major-party challengers and minor-party candidates.

Since an incumbent is subject to these limitations to the same degree as his opponent, the Act, on its face, appears to be evenhanded. The appearance of fairness, however, may not reflect political reality. Although some incumbents are defeated in every congressional election, it is axiomatic that an incumbent usually begins the race with significant advantages. In addition to the factors of voter recognition and the status accruing to holding federal office, the incumbent has access to substantial resources provided by the Government. These include local and Washington offices, staff support, and the franking privilege. Where the incumbent has the support of majorspecial-interest groups which have the flexibility described in n. 31, supra, and is further supported by the media, the overall effect of the contribution and expenditure limitations enacted by Congress could foreclose any fair opportunity of a successful challenge.

However, since we decide in Part I-C, infra, that the ceilings on independent expenditures, on the candidate's expenditures from his personal funds, and on overall campaign expenditures are unconstitutional under the First Amendment, we need not express any opinion with regard to the alleged invidious discrimination resulting from the full sweep of the legislation as enacted.

^34. In 1974, for example, 40 major-party challengers defeated incumbent members of the House of Representatives in the general election. Four incumbent Senators were defeated by major-party challengers in the 1974 primary and general election campaigns.

^35. In the 1974 races for the House of Representatives, three of the 22 major-party candidates exceeding the combined expenditure limits contained in the Act were challengers to incumbents and nine were candidates in races not involving incumbents. The comparable 1972 statistics indicate that 14 of the 20 major-party candidates exceeding the combined limits were nonincumbents.

^36. In 1974, major-party challengers outspent House incumbents in 22% Of the races, and 22 of the 40 challengers who defeated House incumbents outspent their opponents. In 1972, 24% Of the major-party challengers in senatorial elections outspent their incumbent opponents. The 1974 statistics for senatorial contests reveal substantially greater financial dominance by incumbents.

^37. Of the $3,781,254 in contributions raised in 1974 by congressional candidates over and above a $1,000-per-contributor limit, almost twice as much money went to incumbents as to major-party challengers.

^38. Appellants contend that the Act discriminates against challengers, because, while it limits contributions to all candidates, the Government makes available other material resources to incumbents. See n. 33, supra. Yet, taking cognizance of the advantages and disadvantages of incumbency, there is little indication that the $1,000 contribution ceiling will consistently harm the prospects of challengers relative to incumbents.

^39. Between September 1, 1973, and December 31, 1974, major-party candidates for the House and Senate raised over $3,725,000 in contributions over and above $1,000 compared to $55,000 raised by minor-party candidates in amounts exceeding the $1,000 contribution limit.

^40. Appellant Libertarian Party, according to estimates of its national chairman, has received only 10 contributions in excess of $1,000 out of a total of 4,000 contributions. Even these 10 contributions would have been permissible under the Act if the donor did not earmark the funds for a particular candidate and did not exceed the overall $25,000 contribution ceiling for the calendar year. See § 608(b). Similarly, appellants Conservative Victory Fund and American Conservative Union have received only an insignificant portion of their funding through contributions in excess of $1,000. The affidavit of the executive director of the Conservative Victory Fund indicates that in 1974, a typical fundraising year, the Fund received approximately $152,000 through over 9,500 individual contributions. Only one of the 9,500 contributions, an $8,000 contribution earmarked for a particular candidate, exceeded $1,000. In 1972, the Fund received only three contributions in excess of $1,000, all of which might have been legal under the Act if not earmarked. And between April 7, 1972, and February 28, 1975, the American Conservative Union did not receive any aggregate contributions exceeding $1,000. Moreover, the Committee for a Constitutional Presidency McCarthy '76, another appellant, engaged in a concerted effort to raise contributions in excess of $1,000 before the effective date of the Act but obtained only five contributions in excess of $1,000.

Although appellants claim that the $1,000 ceiling governing contributions to candidates will prevent the acquisition of seed money necessary to launch campaigns, the absence of experience under the Act prevents us from evaluating this assertion. As appellees note, it is difficult to assess the effect of the contribution ceiling on the acquisition of seed money since candidates have not previously had to make a concerted effort to raise start-up funds in small amounts.

^41. Appellant Buckley was a minor-party candidate in 1970 when he was elected to the United States Senate from the State of New York.

^42. Although expenditures incidental to volunteer services would appear self-limiting, it is possible for a worker in a candidate's campaign to generate substantial travel expenses. An affidavit submitted by Stewart Mott, an appellant, indicates that he "expended some $50,000 for personal expenses" in connection with Senator McGovern's 1972 Presidential campaign.

^43. The Act contains identical, parallel provisions pertaining to incidental volunteer expenses under the definitions of contribution and expenditure. Compare §§ 591(e)(5)(B)-(D) with §§ 591(f)(4)(D), (E). The definitions have two effects. First, volunteer expenses that are counted as contributions by the volunteer would also constitute expenditures by the candidate's campaign. Second, some volunteer expenses would qualify as contributions whereas others would constitute independent expenditures. The statute distinguishes between independent expenditures by individuals and campaign expenditures on the basis of whether the candidate, an authorized committee of the candidate, or an agent of the candidate "authorized or requested" the expenditure. See § 608(c)(2) (B)(ii), (e)(1); S.Rep. No. 93-689, p. 18 (1974); H.R.Rep. No. 93-1239, p. 6 (1974); U.S.Code Cong. & Admin.News 1974, p. 5587. As a result, only travel that is "authorized or requested" by the candidate or his agents would involve incidental expenses chargeable against the volunteer's contribution limit and the candidate's expenditure ceiling. See n. 53, infra. Should a person independently travel across the country to participate in a campaign, any unreimbursed travel expenses would not be treated as a contribution. This interpretation is not only consistent with the statute and the legislative history but is also necessary to avoid the administrative chaos that would be produced if each volunteer and candidate had to keep track of amounts spent on unsolicited travel in order to comply with the Act's contribution and expenditure ceilings and the reporting and disclosure provisions. The distinction between contributions and expenditures is also discussed at n. 53, infra, and in Part II-C-2, infra.

^44. See n. 19, supra.

1. The $1,000 Limitation on Expenditures "Relative to a Clearly Identified Candidate"

^45. The same broad definition of "person" applicable to the contribution limitations governs the meaning of "person" in § 608(e)(1). The statute provides some limited exceptions through various exclusions from the otherwise comprehensive definition of "expenditure." See § 591(f). The most important exclusions are: (1) "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate," § 591(f)(4)(A), and (2) "any communication by any membership organization or corporation to its members or stockholders, if such membership organization or corporation is not organized primarily for the purpose of influencing the nomination for election, or election, of any person to Federal office," § 591(f)(4)(C). In addition, the Act sets substantially higher limits for personal expenditures by a candidate in connection with his own campaign, § 608(a), expenditures by national and state committees of political parties that succeed in placing a candidate on the ballot, §§ 591(i), 608(f), and total campaign expenditures by candidates, § 608(c).

^46. Section 608(i) provides that any person convicted of exceeding any of the contribution or expenditure limitations "shall be fined not more than $25,000 or imprisoned not more than one year, or both."

^47. Several of the parties have suggested that problems of ambiguity regarding the application of § 608(e)(1) to specific campaign speech could be handled by requesting advisory opinions from the Commission. While a comprehensive series of advisory opinions or a rule delineating what expenditures are "relative to a clearly identified candidate" might alleviate the provision's vagueness problems, reliance on the Commission is unacceptable because the vast majority of individuals and groups subject to criminal sanctions for violating § 608(e)(1) do not have a right to obtain an advisory opinion from the Commission. See 2 U.S.C. § 437f (1970 ed., Supp. IV). Section 437f(a) of Title 2 accords only candidates, federal officeholders, and political committees the right to request advisory opinions and directs that the Commission "shall render an advisory opinion, in writing, within a reasonable time" concerning specific planned activities or transactions of any such individual or committee. The powers delegated to the Commission thus do not assure that the vagueness concerns will be remedied prior to the chilling of political discussion by individuals and groups in this or future election years.

^48. In such circumstances, vague laws may not only "trap the innocent by not providing fair warning" or foster "arbitrary and discriminatory application" but also operate to inhibit protected expression by inducing "citizens to ' "steer far wider of the unlawful zone" . . . than if the boundaries of the forbidden areas were clearly marked.' " Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972), quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322, 12 L.Ed.2d 377 (1964), quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963).

^49. This interpretation of "relative to" a clearly identified candidate is supported by the discussion of § 608(e)(1) in the Senate Report, S.Rep.No.93-689, p. 19 (1974), the House Report, H.R.Rep.No.93-1239, p. 7 (1974), the Conference Report,S.Conf.Rep.No.93-1237, pp. 56-57 (1974), and the opinion of the Court of Appeals, 171 U.S.App.D.C., at 203-204, 519 F.2d, at 852-853.

^50. In connection with another provision containing the same advocacy language appearing in § 608(e)(1), the Court of Appeals concluded:

"Public discussion of public issues which also are campaign issues readily and often unavoidably draws in candidates and their positions, their voting records and other official conduct. Discussions of those issues, and as well more positive efforts to influence public opinion on them, tend naturally and inexorably to exert some influence on voting at elections." 171 U.S.App.D.C., at 226, 519 F.2d, at 875.

^51. Section 608(e)(2) defines "clearly identified" to require that the candidate's name, photograph or drawing, or other unambiguous reference to his identity appear as part of the communication. Such other unambiguous reference would include use of the candidate's initials (e. g., FDR), the candidate's nickname (e. g., Ike), his office (e. g., the President or the Governor of Iowa), or his status as a candidate (e. g., the Democratic Presidential nominee, the senatorial candidate of the Republican Party of Georgia).

^52. This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject."

^53. Section 608(e)(1) does not apply to expenditures "on behalf of a candidate" within the meaning of § 608(c)(2)(B). The latter subsection provides that expenditures "authorized or requested by the candidate, an authorized committee of the candidate, or an agent of the candidate" are to be treated as expenditures of the candidate and contributions by the person or group making the expenditure. The House and Senate Reports provide guidance in differentiating individual expenditures that are contributions and candidate expenditures under § 608(c)(2)(B) from those treated as independent expenditures subject to the § 608(e)(1) ceiling. The House Report speaks of independent expenditures as costs "incurred without the request or consent of a candidate or his agent." H.R.Rep. No. 93-1239, p. 6 (1974). The Senate report addresses the issue in greater detail. It provides an example illustrating the distinction between "authorized or requested" expenditures excluded from § 608(e)(1) and independent expenditures governed by § 608(e)(1):

"(A) person might purchase billboard advertisements endorsing a candidate. If he does so completely on his own, and not at the request or suggestion of the candidate or his agent's (sic ) that would constitute an 'independent expenditure on behalf of a candidate' under section 614(c) of the bill. The person making the expenditure would have to report it as such.

"However, if the advertisement was placed in cooperation with the candidate's campaign organization, then the amount would constitute a gift by the supporter and an expenditure by the candidate just as if there had been a direct contribution enabling the candidate to place the advertisement himself. It would be so reported by both." S.Rep. No. 93-689, p. 18 (1974), U.S.Code Cong. & Admin.News 1974, p. 5604.

The Conference substitute adopted the provision of the Senate bill dealing with expenditures by any person "authorized or requested" to make an expenditure by the candidate or his agents. S.Conf.Rep. No. 93-1237, p. 55 (1974). In view of this legislative history and the purposes of the Act, we find that the "authorized or requested" standard of the Act operates to treat all expenditures placed in cooperation with or with the consent of a candidate, his agents, or an authorized committee of the candidate as contributions subject to the limitations set forth in § 608(b).

^54. Appellees mistakenly rely on this Court's decision in CSC v. Letter Carriers, as supporting § 608(e)(1)'s restriction on the spending of money to advocate the election or defeat of a particular candidate. In upholding the Hatch Act's broad restrictions on the associational freedoms of federal employees, the Court repeatedly emphasized the statutory provision and corresponding regulation permitting an employee to " '(e)xpress his opinion as an individual privately and publicly on political subjects and candidates.' " 413 U.S., at 579, 93 S.Ct., at 2897, quoting 5 CFR § 733.111(a)(2). See 413 U.S., at 561, 568, 575-576, 93 S.Ct., 2888, 2892, 2895-2896. Although the Court "unhesitatingly" found that a statute prohibiting federal employees from engaging in a wide variety of "partisan political conduct" would "unquestionably be valid," it carefully declined to endorse provisions threatening political expression. See Id., at 556, 579-581, 93 S.Ct., at 2890, 2897-2898. The Court did not rule on the constitutional questions presented by the regulations forbidding partisan campaign endorsements through the media and speechmaking to political gatherings because it found that these restrictions did not "make the statute substantially overbroad and so invalid on its face." Id., at 581, 93 S.Ct., at 2898.

^55. Neither the voting rights cases nor the Court's decision upholding the Federal Communications Commission's fairness doctrine lends support to appellees' position that the First Amendment permits Congress to abridge the rights of some persons to engage in political expression in order to enhance the relative voice of other segments of our society.

Cases invalidating governmentally imposed wealth restrictions on the right to vote or file as a candidate for public office rests on the conclusion that wealth "is not germane to one's ability to participate intelligently in the electoral process" and is therefore an insufficient basis on which to restrict a citizen's fundamental right to vote. Harper v. Virginia Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966). See Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Phoenix v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970). These voting cases and the reapportionment decisions serve to assure that citizens are accorded an equal right to vote for their representatives regardless of factors of wealth or geography. But the principles that underlie invalidation of governmentally imposed restrictions on the franchise do not justify governmentally imposed restrictions on political expression. Democracy depends on a well-informed electorate, not a citizenry legislatively limited in its ability to discuss and debate candidates and issues.

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the Court upheld the political-editorial and personal-attack portions of the Federal Communications Commission's fairness doctrine. That doctrine requires broadcast licensees to devote programing time to the discussion of controversial issues of public importance and to present both sides of such issues. Red Lion "makes clear that the broadcast media pose unique and special problems not present in the traditional free speech case," by demonstrating that " 'it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish.' " Columbia Broadcasting v. Democratic Comm., 412 U.S. 94, 101, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973), quoting Red Lion Broadcasting Co., supra, 395 U.S., at 388, 89 S.Ct., at 1805. Red Lion therefore undercuts appellees' claim that § 608(e)(1)'s limitations may permissibly restrict the First Amendment rights of individuals in this "traditional free speech case." Moreover, in contrast, to the undeniable effect of § 608(e)(1), the presumed effect of the fairness doctrine is one of "enhancing the volume and quality of coverage" of public issues. 395 U.S., at 393, 89 S.Ct., at 1808.

^56. The Act exempts most elements of the institutional press, limiting only expenditures by institutional press facilities that are owned or controlled by candidates and political parties. See § 591(f)(4)(A). But, whatever differences there may be between the constitutional guarantees of a free press and of free speech, it is difficult to conceive of any principled basis upon which to distinguish § 608(e)(1)'s limitations upon the public at large and similar limitations imposed upon the press specifically.

^57. The $35,000 ceiling on expenditures by candidates for the Senate also applies to candidates for the House of Representatives from States entitled to only one Representative. § 608(a)(1)(B).

The Court of Appeals treated § 608(a) as relaxing the$1,000-per-candidate contribution limitation imposed by § 608(b)(1) so as to permit any member of the candidate's immediate family spouse, child, grandparent, brother, sister, or spouse of such persons to

contribute up to the $25,000 overall annual contribution ceiling to the candidate. See 171 U.S.App.D.C., at 205, 519 F.2d, at 854. The Commission has recently adopted a similar interpretation of the provision. See Federal Election Commission, Advisory Opinion 1975-76 (Dec. 5, 1975), 40 Fed.Reg. 58393. However, both the Court of Appeals and the Commission apparently overlooked the Conference Report accompanying the final version of the Act which expressly provides for a contrary interpretation of § 608(a):

"It is the intent of the conferees that members of the immediate family of any candidate shall be subject to the contribution limitations established by this legislation. If a candidate for the office of Senator, for example, already is in a position to exercise control over funds of a member of his immediate family before he becomes a candidate, then he could draw upon these funds up to the limit of $35,000. If, however, the candidate did not have access to or control over such funds at the time he became a candidate, the immediate family member would not be permitted to grant access or control to the candidate in amounts up to $35,000, if the immediate family member intends that such amounts are to be used in the campaign of the candidate. The immediate family member would be permitted merely to make contributions to the candidate in amounts not greater than $1,000 for each election involved." S.Conf.Rep. No. 93-1237, p. 58 (1974), U.S.Code Cong. & Admin.News 1974, p. 5627.

----------

^58. The Court of Appeals evidently considered the personal funds expended by the candidate on his own behalf as a contribution rather than an expenditure. See 171 U.S.App.D.C., at 205, 519 F.2d, at 854. However, unlike a person's contribution to a candidate, a candidate's expenditure of his personal funds directly facilitates his own political speech.

^59. The legislative history of the Act clearly indicates that § 608(a) was not intended to suspend the application of the $1,000 contribution limitation of § 608(b)(1) for members of the candidate's immediate family. See n. 57, supra. Although the risk of improper influence is somewhat diminished in the case of large contributions from immediate family members, we cannot say that the danger is sufficiently reduced to bar Congress from subjecting family members to the same limitations as nonfamily contributors.

The limitation on a candidate's expenditure of his own funds differs markedly from a limitation on family contributions both in the absence of any threat of corruption and the presence of a legislative restriction on the candidate's ability to fund his own communication with the voters.

^60. Expenditures made by an authorized committee of the candidate or any other agent of the candidate as well as any expenditure by any other person that is "authorized or requested" by the candidate or his agent are charged against the candidate's spending ceiling. § 608(c)(2)(B).

^61. Expenditures made by or on behalf of a Vice Presidential candidate of a political party are considered to have been made by or on behalf of the party's Presidential candidate. § 608(c)(2)(A).

^62. The campaign ceilings contained in § 608(c) would have required a reduction in the scope of a number of previous congressional campaigns and substantially limited the overall expenditures of the two major-party Presidential candidates in 1972. See n. 21, supra.

^63. This normal relationship may not apply where the candidate devotes a large amount of his personal resources to his campaign.

^64. As an opinion dissenting in part from the decision below noted: "If a senatorial candidate can raise $1 from each voter, what evil is exacerbated by allowing that candidate to use all that money for political communication? I know of none." 171 U.S.App.D.C., at 268, 519 F.2d, at 917 (Tamm, J.)

^65. For the reasons discussed in Part III, infra, Congress may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations. Just as a candidate may voluntarily limit the size of the contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding.

^66. Subtitle H of the Internal Revenue Code also established separate limitations for general election expenditures by national and state committees of political parties, § 608(f), and for national political party conventions for the nomination of Presidential candidates. 26 U.S.C. § 9008(d). Appellants do not challenge these ceilings on First Amendment grounds. Instead, they contend that the provisions discriminate against independent candidates and regional political parties without national committees because they permit additional spending by political parties with national committees. Our decision today holding § 608(e)(1)'s independent expenditure limitation unconstitutional and § 608(c)'s campaign expenditure ceilings unconstitutional removes the predicate for appellants' discrimination claim by eliminating any alleged advantage to political parties with national committees.

^67. Accordingly, the answers to the certified constitutional questions pertaining to the Act's contribution and expenditure limitations are as follows:

3. Does any statutory limitation, or do the particular limitations in the challenged statutes, on the amounts that individuals or organizations may contribute or expend in connection with elections for federal office violate the rights of one or more of the plaintiffs under the First, Fifth, or Ninth Amendment or the Due Process Clause of the Fifth Amendment of the Constitution of the United States?

(a) Does 18 U.S.C. § 608(a) (1970 ed., Supp. IV) violate such rights, in that it forbids a candidate or the members of his immediate family from expending personal funds in excess of the amounts specified in 18 U.S.C. § 608(a)(1) (1970 ed., Supp. IV)?

Answer: YES.

(b) Does 18 U.S.C. § 608(b) (1970 ed., Supp. IV) violate such rights, in that it forbids the solicitation, receipt or making of contributions on behalf of political candidates in excess of the amounts specified in 18 U.S.C. § 608(b) (1970 ed., Supp. IV)?

Answer: NO.

(c) Do 18 U.S.C. §§ 591(e) and 608(b) (1970 ed., Supp. IV) violate such rights, in that they limit the incidental expenses which volunteers working on behalf of political candidates may incur to the amounts specified in 18 U.S.C. §§ 591(e) and 608(b) (1970 ed., Supp. IV)?

Answer: NO.

(d) Does 18 U.S.C. § 608(e) (1970 ed., Supp. IV) violate such rights, in that it limits to $1,000 the independent (not on behalf of a candidate) expenditures of any person relative to an identified candidate?

Answer: YES.

(e) Does 18 U.S.C. § 608(f) (1970 ed., Supp. IV) violate such rights, in that it limits the expenditures of national or state committees of political parties in connection with general election campaigns for federal office?

Answer: NO, as to the Fifth Amendment challenge advanced by appellants.

(f) Does § 9008 of the Internal Revenue Code of 1954 violate such rights, in that it limits the expenditures of the national committee of a party with respect to presidential nominating conventions?

Answer: NO, as to the Fifth Amendment challenge advanced by appellants.

(h) Does 18 U.S.C. § 608(b)(2) (1970 ed., Supp. IV) violate such rights, in that it excludes from the definition of "political committee" committees registered for less than the period of time prescribed in the statute?

Answer: NO.

4. Does any statutory limitation, or do the particular limitations in the challenged statutes, on the amounts that candidates for elected federal office may expend in their campaigns violate the rights of one or more of the plaintiffs under the First or Ninth Amendment or the Due Process Clause of the Fifth Amendment?

(a) Does 18 U.S.C. § 608(c) (1970 ed., Supp. IV) violate such rights, in that it forbids expenditures by candidates for federal office in excess of the amounts specified in 18 U.S.C. § 608(c) (1970 ed., Supp. IV)?

Answer: YES.

^68. Unless otherwise indicated, all statutory citations in Part II of this opinion are to Title 2 of the United States Code, 1970 edition, Supplement IV.

^69. Appellants do contend that there should be a blanket exemption from the disclosure provisions for minor parties. See Part II-B-2, infra.

^70. The Court of Appeals' ruling that § 437a is unconstitutional was not appealed. See n. 7, supra.

^71. Past disclosure laws were relatively easy to circumvent because candidates were required to report only contributions that they had received themselves or that were received by others for them with their knowledge or consent. § 307, 43 Stat. 1072. The data that were reported were virtually impossible to use because there were no uniform rules for the compiling of reports or provisions for requiring corrections and additions. See Redish, Campaign Spending Laws and the First Amendment, 46 N.Y.U.L.Rev. 900, 905 (1971).

^72. See Part I, supra. The relevant provisions of Title 2 are set forth in the Appendix to this opinion, infra, at 144 et seq.

^73. NAACP v. Alabama, 357 U.S., at 463, 78 S.Ct., at 1172. See also Gibson v. Florida Legislative Comm., 372 U.S. 539, 546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929 (1963); NAACP v. Button, 371 U.S., at 438, 83 S.Ct., at 340; Bates v. Little Rock, 361 U.S., at 524, 80 S.Ct., at 417.

^74. Id., at 525, 80 S.Ct., at 417.

^75. Gibson v. Florida Legislative Comm., supra, 372 U.S., at 546, 83 S.Ct., at 893.

^76. The Court of Appeals held that the applicable test for evaluating the Act's disclosure requirements is that adopted in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), in which " 'speech' and 'nonspeech' elements (were) combined in the same course of conduct." Id., at 376, 88 S.Ct., at 1678. O'Brien is appropriate, the Court of Appeals found, because the Act is directed toward the spending of money, and money introduces a nonspeech element. As the discussion in Part I-A, supra, indicates, O'Brien is inapposite, for money is a neutral element not always associated with speech but a necessary and integral part of many, perhaps most, forms of communication. Moreover, the O'Brien test would not be met, even if it were applicable. O'Brien requires that "the governmental interest (be) unrelated to the suppression of free expression." Id., at 377, 88 S.Ct., at 1679. The governmental interest furthered by the disclosure requirements is not unrelated to the "suppression" of speech insofar as the requirements are designed to facilitate the detection of violations of the contribution and expenditure limitations set out in 18 U.S.C. § 608 (1970 ed., Supp. IV).

^77. H.R.Rep. No. 92-564, p. 4 (1971).

^78. Ibid.; S.Rep. No. 93-689, p. 2 (1974).

^79. We have said elsewhere that "informed public opinion is the most potent of all restraints upon misgovernment." Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936). Cf. United States v. Harriss, 347 U.S. 612, 625, 74 S.Ct. 808, 815, 98 L.Ed. 989 (1954) (upholding disclosure requirements imposed on lobbyists by the Federal Regulation of Lobbying Act, Title III of the Legislative Reorganization Act of 1946, 60 Stat. 839).

^80. L. Brandeis, Other People's Money 62 (National Home Library Foundation ed. 1933).

^81. See supra, at 60.

^82. Post-election disclosure by successful candidates is suggested as a less restrictive way of preventing corrupt pressures on officeholders. Delayed disclosure of this sort would not serve the equally important informational function played by pre-election reporting. Moreover, the public interest in sources of campaign funds is likely to be at its peak during the campaign period; that is the time when improper influences are most likely to be brought to light.

^83. Nor is this a case comparable to Pollard v. Roberts, 283 F.Supp. 248 (ED Ark.) (three-judge court), aff'd, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968), in which an Arkansas prosecuting attorney sought to obtain, by a subpoena duces tecum, the records of a checking account (including names of individual contributors) established by a specific party, the Republican Party of Arkansas.

^84. See Developments in the Law Elections, 88 Harv.L.Rev. 1111, 1247 n. 75 (1975).

^85. See Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (1968) ("There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms"); Sweezy v. New Hampshire, 354 U.S. 234, 250-251, 77 S.Ct. 1203, 1211-1212, 1 L.Ed.2d 1311 (1957) (plurality opinion).

^86. Cf. Talley v. California, 362 U.S. 60, 64-65, 80 S.Ct. 536, 538-539, 4 L.Ed.2d 559 (1960).

^87. Allegations made by a branch of the Socialist Workers Party in a civil action seeking to declare the District of Columbia disclosure and filing requirements unconstitutional as applied to its records were held to be sufficient to withstand a motion to dismiss in Doe v. Martin, 404 F.Supp. 753 (DC 1975) (three-judge court). The District of Columbia provisions require every political committee to keep records of contributions of $10 or more and to report contributors of $50 or more.

^88. For example, a campaign worker who had solicited campaign funds for the Libertarian Party in New York testified that two persons solicited in a Party campaign "refused to contribute because they were unwilling for their names to be disclosed or published." None of the appellants offers stronger evidence of threats or harassment.

2. Blanket Exemption

^89. These criteria were suggested in an opinion concurring in part and dissenting in part from the decision below. 171 U.S.App.D.C., at 258 n. 1, 519 F.2d, at 907 n. 1 (Bazelon, C. J.).

^90. Age is also underinclusive in that it would presumably leave long-established but unpopular parties subject to the disclosure requirements. The Socialist Labor Party, which is not a party to this litigation but which has filed an amicus brief in support of appellants, claims to be able to offer evidence of "direct suppression, intimidation, harassment, physical abuse, and loss of economic sustenance" relating to its contributors. Brief for Socialist Labor Party as Amicus Curiae 6. The Party has been in existence since 1877.

^91. 171 U.S.App.D.C., at 258 n. 1, 519 F.2d, at 907 n. 1 (Bazelon, C. J.).

^92. Id., at 260, 519 F.2d, at 909. See also Developments in the Law Elections, 88 Harv.L.Rev. 1111, 1247-1249 (1975).

^93. See Appendix to this opinion, infra, at 160.

^94. See Part I-C-1, supra.

^95. § 305, 86 Stat. 16.

^96. 88 Stat. 1265.

^97. S.Rep.No.92-229, p. 57 (1971).

^98. See n. 71, supra.

2. Vagueness Problems

^99. Section 441(a) provides: "Any person who violates any of the provisions of this subchapter shall be fined not more than $1,000 or imprisoned not more than one year, or both."

^100. § 431(e), (f). See Appendix to this opinion, infra, at 145-149.

^101. See supra, at 61-63.

^102. S.Rep.No.92-96, p. 33 (1971); S.Rep.No.93-689, pp. 1-2 (1974).

^103. See n. 53, supra.

^104. See Part I-C-1, supra.

^105. Section 431(d) defines "political committee" as "any committee, club, association, or other group of persons which receives contributions or makes expenditures during a calendar year in an aggregate amount exceeding $1,000."

^106. At least two lower courts, seeking to avoid questions of unconstitutionality, have construed the disclosure requirements imposed on "political committees" by § 434(a) to be nonapplicable to nonpartisan organizations. United States v. National Comm. for Impeachment, 469 F.2d, at 1139-1142, American Civil Liberties Union v. Jennings, 366 F.Supp., at 1055-1057. See also 171 U.S.App.D.C., at 214 n.112, 519 F.2d, at 863 n. 112.

^107. Some partisan committees groups within the control of the candidate or primarily organized for political activities will fall within § 434(e) because their contributions and expenditures fall in the $100-to-$1,000 range. Groups of this sort that do not have contributions and expenditures over $1,000 are not "political committees" within the definition in § 431(d); those whose transactions are not as great as $100 are not required to file statements under § 434(e).

^108. See n. 52, supra.

^109. Of course, independent contributions and expenditures made in support of the campaigns of candidates of parties that have been found to be exempt from the general disclosure requirements because of the possibility of consequent chill and harassment would be exempt from the requirements of § 434(e).

^110. See supra, at 61-63.

^111. "Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark." Louisville Gas Co. v. Coleman, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770 (1928) (Holmes, J., dissenting).

^112. Appellants' final argument is directed against § 434(d), which exempts from the reporting requirements certain "photographic, matting, or recording services" furnished to Congressmen in nonelection years. See Appendix to this opinion, infra, at 159. Although we are troubled by the considerable advantages that this exemption appears to give to incumbents, we agree with the Court of Appeals that, in the absence of record evidence of misuse or undue discriminatory impact, this provision represents a reasonable accommodation between the legitimate and necessary efforts of legislators to communicate with their constituents and activities designed to win elections by legislators in their other role as politicians.

^113. Accordingly, we respond to the certified questions, as follows:

7. Do the particular requirements in the challenged statutes that persons disclose the amounts that they contribute or expend in connection with elections for federal office or that candidates for such office disclose the amounts that they expend in their campaigns violate the rights of one or more of the plaintiffs under the First, Fourth or Ninth Amendment or the Due Process Clause of the Fifth Amendment?

(a) Do 2 U.S.C. §§ 432(b), (c), and (d) and 438(a)(8) (1970 ed., Supp. IV) violate such rights, in that they provide, through auditing procedures, for the Federal Election Commission to inspect lists and records required to be kept by political committees of individuals who contribute more than $10?

Answer: NO.

(b) Does 2 U.S.C. §§ 434(b)(1)-(8) (1970 ed., Supp. IV) violate such rights, in that it requires political committees to register and disclose the names, occupations, and principal places of business (if any) of those of their contributors who contribute in excess of $100?

Answer: NO.

(c) Does 2 U.S.C. § 434(d) (1970 ed., Supp. IV) violate such rights, in that it neither requires disclosure of nor treats as contribution to or expenditure by incumbent officeholders the resources enumerated in 2 U.S.C. § 434(d) (1970 ed., Supp. IV)?

Answer: NO.

(d) Does 2 U.S.C. § 434(e) (1970 ed., Supp. IV) violate such rights, in that it provides that every person contributing or expending more than $100 other than by contribution to a political committee or candidate (including volunteers with incidental expenses in excess of $600) must make disclosure to the Federal Election Commission?

Answer: NO.

^114. The Presidential Election Campaign Fund Act of 1966, Title IV of Pub.L. 89-909, §§ 301-305, 80 Stat. 1587, was the first such provision. This Act also initiated the dollar check-off provision now contained in 26 U.S.C. § 6096 (1970 ed., Supp. IV). The Act was suspended, however, by a 1967 provision barring any appropriations until Congress adopted guidelines for the distribution of money from the Fund. Pub.L. 90-26, § 5, 81 Stat. 58. In 1971 Congress added Subtitle H to the Internal Revenue Code. Pub.L. 92-178, § 801, 85 Stat. 562. Chapter 95 thereof provided public financing of general election campaigns for President; this legislation was to become effective for the 1976 election and is substantially the same as the present scheme. Congress later amended the dollar check-off provision, deleting the taxpayers' option to designate specific parties as recipients of their money. Pub.L. 93-53, § 6, 87 Stat. 138. Finally, the 1974 amendments added to Chapter 95 provisions for financing nominating conventions and enacted a new Chapter 96 providing matching funds for campaigns in Presidential primaries. Pub.L. 93-443, §§ 403-408, 88 Stat. 1291.

^115. Unless otherwise indicated all statutory citations in this Part III are to the Internal Revenue Code of 1954, Title 26 of the United States Code, 1970 edition, Supplement IV.

^116. See n. 6, supra.

^117. Priorities are established when the Fund is insufficient to satisfy all entitlements in any election year: the amount in the Fund is first allocated to convention funding, then to financing the general election, and finally to primary matching assistance. See §§ 9008(a), 9037(a). But the law does not specify how funds are to be allocated among recipients within these categories. Cf. § 9006(d).

^118. Independent candidates might be excluded from general election funding by Chapter 95. See §§ 9002(2)(B), 9003(a), (c), 9004(a)(2), (c), 9005(a), 9006(c). Serious questions might arise as to the constitutionality of excluding from free annual assistance candidates not affiliated with a "political party" solely because they lack such affiliation. Storer v. Brown, 415 U.S. 724, 745-746, 94 S.Ct. 1274, 1286-1287, 39 L.Ed.2d 714 (1974). But we have no occasion to address that question in this case. The possibility of construing Chapter 95 as affording financial assistance to independent candidates was remarked by the Court of Appeals. 171 U.S.App.D.C., at 238, 519 F.2d, at 887. The only announced independent candidate for President before the Court former Senator McCarthy has publicly announced that he will refuse any public assistance. Moreover, he is affiliated with the Committee for a Constitutional Presidency McCarthy '76, and there is open the question whether it would qualify as a "political party" under Subtitle H.

^119. No party to this case has challenged the constitutionality of this expenditure limit.

^120. This amount is the same as the expenditure limit provided in 18 U.S.C. § 608(c)(1)(B) (1970 ed., Supp. IV). The Court of Appeals viewed the provisions as "complementary stratagems." 171 U.S.App.D.C., at 201, 519 F.2d, at 850. Since the Court today holds § 608(c)(1) to be unconstitutional, the question of the severability of general election funding as now constituted arises. We hold that the provisions are severable for the reasons stated in Part III-C, infra.

^121. No separate pledge is required from the candidate's party, but if the party organization is an "authorized committee" or "agent," expenditures by the party may be attributed to the candidate. 18 U.S.C. § 608(c)(2)(B) (1970 ed., Supp. IV). See § 608(b)(4)(A).

^122. As with Chapter 95, any constitutional question that may arise from the exclusion of independent candidates from any assistance, such as funds to defray expenses of getting on state ballots by petition drives, need not be addressed in this case. See n. 118, supra.

^123. As with general election funding, this limit is the same as the candidate expenditure limit of 18 U.S.C. § 608(c)(1) (1970 ed., Supp. IV). See n. 120, supra, and Part III-C, infra.

^124. The scheme involves no compulsion upon individuals to finance the dissemination of ideas with which they disagree. Lathrop v. Donohue, 367 U.S. 820, 871, 81 S.Ct. 1826, 1852, 6 L.Ed.2d 1191 (1961) (Black, J., dissenting); id., at 882, 81 S.Ct., at 1858 (Douglas, J., dissenting); Machinists v. Street, 367 U.S. 740, 778, 81 S.Ct. 1784, 1805, 6 L.Ed.2d 1141 (1961) (Douglas, J., concurring; d., at 788-792, 81 S.Ct., at 1809-1811 (Black, J., dissenting). The § 6096 check-off is simply the means by which Congress determines the amount of its appropriation.

^125. Some proposals for public financing would give taxpayers the opportunity to designate the candidate or party to receive the dollar, and § 6096 initially offered this choice. See n. 114, supra. The voucher system proposed by Senator Metcalf, as amicus curiae here, also allows taxpayers this option. But Congress need not provide a mechanism for allowing taxpayers to designate the means in which their particular tax dollars are spent. See n. 124, supra. Further, insofar as these proposals are offered as less restrictive means, Congress had legitimate reasons for rejecting both. The designation option was criticized on privacy grounds, 119 Cong.Rec. 22598, 22396 (1973), and also because the identity of all candidates would not be known by April 15, the filing day for annual individual and joint tax returns. Senator Metcalf's proposal has also been criticized as possibly leading to black markets and to coercion to obtain vouchers and as administratively impractical.

^126. Appellants voice concern that public funding will lead to governmental control of the internal affairs of political parties, and thus to a significant loss of political freedom. The concern is necessarily wholly speculative and hardly a basis for invalidation of the public financing scheme on its face. Congress has expressed its determination to avoid the possibility. S.Rep.No.93-689, pp. 9-10 (1974).

^127. The historical bases of the Religion and Speech Clauses are markedly different. Intolerable persecutions throughout history led to the Framers' firm determination that religious worship both in method and belief must be strictly protected from government intervention. "Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand." Engel v. Vitale, 370 U.S. 421, 432, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962) (footnote omitted). See Everson v. Board of Education, 330 U.S. 1, 8-15, 67 S.Ct. 504, 507-511, 91 L.Ed. 711 (1947). But the central purpose of the Speech and Press Clauses was to assure a society in which "uninhibited, robust, and wide-open" public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). Legislation to enhance these First Amendment values is the rule, not the exception. Our statute books are replete with laws providing financial assistance to the exercise of free speech, such as aid to public broadcasting and other forms of educational media, 47 U.S.C. §§ 390-399, and preferential postal rates and antitrust exemptions for newspapers, 39 CFR § 132.2 (1975); 15 U.S.C. §§ 1801-1804.

^128. Appellants maintain that denial of funding is a more severe restriction than denial of access to the ballot, because write-in candidates can win elections, but candidates without funds cannot. New parties will be unfinanced, however, only if they are unable to get private financial support, which presumably reflects a general lack of public support for the party. Public financing of some candidates does not make private fundraising for others any more difficult; indeed, the elimination of private contributions to major-party Presidential candidates might make more private money available to minority candidates.

^129. Appellants dispute the relevance of this answer to their argument on the ground that they will not be able to raise money to equal major-party spending. As a practical matter, however, Subtitle H does not enhance the major parties' ability to campaign; it substitutes public funding for what the parties would raise privately and additionally imposes an expenditure limit. If a party cannot raise funds privately, there are legitimate reasons not to provide public funding, which would effectively facilitate hopeless candidacies.

^130. Our only prior decision dealing with a system of public financing, American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), also recognized that such provisions are less restrictive than regulation of ballot access. Texas required major parties there called "political parties" to nominate candidates by primaries, and the State reimbursed the parties for some of the expenses incurred in holding the primaries. But Texas did not subsidize other parties for the expenses involved in qualifying for the ballot, and this denial was claimed to be a denial of equal protection of the laws. We said that we were "unconvinced . . . that this financing law is an 'exclusionary mechanism' which 'tends to deny some voters the opportunity to vote for a candidate of their choosing' or that it has 'a real and appreciable impact on the exercise of the franchise.' " Id., 415 U.S., at 794, 94 S.Ct., at 1312, quoting from Bullock v. Carter, 405 U.S., at 144, 92 S.Ct., at 856. That the aid in American Party was provided to parties and not to candidates, as is most of the Subtitle H funding, is immaterial.

^131. The allegations of invidious discrimination are based on the claim that Subtitle H is facially invalid; since the public financing provisions have never been in operation, appellants are unable to offer factual proof that the scheme is discriminatory in its effect. In rejecting appellants' arguments, we of course do not rule out the possibility of concluding in some future case, upon an appropriate factual demonstration, that the public financing system invidiously discriminates against nonmajor parties.

^132. In 1912 Theodore Roosevelt ran as the candidate of the Progressive Party, which had split off from the Republican Party, and he received more votes than William H. Taft, the Republican candidate. But this third-party "threat" was short-lived; in 1916 the Progressives came back into the Republican Party when the party nominated Charles Evans Hughes as its candidate for the Presidency. With the exception of 1912, the major-party candidates have outpolled all others in every Presidential election since 1856.

^133. Appellants suggest that a less discriminatory formula would be to grant full funding to the candidate of the party getting the most votes in the last election and then give money to candidates of other parties based on their showing in the last election relative to the "leading" party. That formula, however, might unfairly favor incumbents, since their major-party challengers would receive less financial assistance. See S.Rep.No.93-689, p. 10 (1974).

^134. Appellants argue that this effort to "catch up" is hindered by the contribution limits in 18 U.S.C. § 608(b) (1970 ed., Supp. IV) and that therefore the public financing provisions are unconstitutional. Whatever merit the point may have, which is questionable on the basis of the record before the Court, it is answered in our treatment of the contribution limits. See Part I-B, supra.

^135. There will, however, be no minor-party candidates in the 1976 Presidential election, since no 1972 candidate other than those of the major parties received 5% Of the popular vote.

^136. Another suggested alternative is Senator Metcalf's voucher scheme, but we have previously mentioned problems presented by that device. See n. 125, supra. The United States suggests that a matching formula could be used for general election funding, as it is for funding primary campaigns, in order to relate current funding to current support more closely. Congress could readily have concluded, however, that the matching formula was inappropriate for the general election. The problems in determining the relative strength of candidates at the primaries stage of the campaign are far greater than after a candidate has obtained the nomination of a major party. See S.Rep.No.93-689, p. 6 (1974). It might be eminently reasonable, therefore, to employ a matching formula for primary elections related to popular support evidenced by numerous smaller contributions, yet inappropriate for general election financing as inconsistent with the congressional effort to remove the influence of private contributions and to relieve candidates of the burden of fundraising. Ibid.

^137. Williams v. Rhodes, 393 U.S. 23, 31-32, 89 S.Ct. 5, 10-11, 21 L.Ed.2d 24 (1968); Sweezy v. New Hampshire, 354 U.S. 234, 250-251, 77 S.Ct. 1203, 1211-1212, 1 L.Ed.2d 1311 (1957) (plurality opinion). Cf. Talley v. California, 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559 (1960).

^138. Apart from the adjustment for inflation, and assuming a major-party entitlement of $20,000,000, a candidate getting 5% Of the popular vote, when the balance is divided between two major parties, would be entitled to a post-election payment of more than $2,100,000 if that sum remains after priority allocations from the fund.

^139. It is also argued that Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), is a better analogy than Jenness. In Storer a candidate could qualify for the ballot by obtaining the signatures of 5% Of the voters, but the signatures could not include any voters who voted for another candidate at the primary election. 415 U.S., at 739, 94 S.Ct., at 1283. The analogy, however, is no better than Jenness. The Chapter 95 formula is not more restrictive than that sustained in the two cases, since for the reasons stated earlier, supra, at 94-95, it burdens minority interests less than ballot-access regulations.

^140. On similar grounds we sustain the 10-state requirement in § 9002(2). Success in Presidential elections depends on winning electoral votes in States, not solely popular votes, and the requirement is plainly not unreasonable in light of that fact.

2. Nominating Convention Financing

^141. As with primary campaigns, Congress could reasonably determine that there was no need for reforms as to minor-party conventions. See, infra, at 105-106. This contribution limit applies to "contributions to any candidate," 18 U.S.C. § 608(b)(1) (1970 ed., Supp. IV), and thus would not govern gifts to a party for general purposes, such as convention funding. Although "contributions to a named candidate made to any political committee" are within § 608(b)(1) if the committee is authorized in writing by a candidate to accept contributions, § 608(b)(4)(A), contributions to a party not for the benefit of any specific candidate would apparently not be subject to the $1,000 ceiling. Moreover, § 608(b)(4)(A) governs only party organizations authorized by a candidate in writing to accept contributions.

3. Primary Election Campaign Financing

^142. With respect to the denial of funds to candidates who may not be affiliated with a "political party" for the purposes of public financing, see n. 118, supra.

^143. Appellants argue that this reasoning from Katzenbach v. Morgan, supra, is inapplicable to this case involving First Amendment guarantees. But the argument as to the denial of funds to certain candidates primarily claims invidious discrimination and hence presents Fifth Amendment questions, though with First Amendment overtones, as in Katzenbach v. Morgan.

^144. Appellants contend that the 20-state requirement directly conflicts with Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969), but that case is distinguishable. Only 7% Of the Illinois voters could have blocked a candidate from qualifying for the ballot, even though the statewide elections were decided by straight majority vote. The clear purpose was to keep any person from being nominated without support in downstate counties making up only 7% Of the vote, but those same voters could not come close to defeating a candidate in the general election. There is no similar restriction here on the opportunity to vote for any candidate, and the 20-state requirement is not an unreasonable method of measuring a candidate's breadth of support. See supra, at 103-105.

^145. The fear that barriers would be reduced too much was one reason for rejecting a matching formula for the general election financing system. See n. 136, supra.

^146. By offering a single hypothetical situation, appellants try to prove that the matching formula gives wealthy contributors an advantage. Taxpayers are entitled to a deduction from ordinary income for political contributions up to $100, or $200 on a joint return. § 218. Appellants note that a married couple in the 70% Tax bracket could give $500 to a candidate and claim the full deduction allowed by § 218, thus reducing their tax liability by $140. The matching funds increase the effective contribution to $1,000, and the total cost to the contributors is $360. But the appellants have disregarded a myriad of other possibilities. For example, taxpayers also have the option of claiming a tax credit up to $25, or $50 on a joint return, for one-half of their political contributions. § 41. Any married couple could give $100 to a candidate, claim the full $50 credit, and matching thus allows a contribution of $200 at a cost of only $50 to the contributors. Because this example and others involve greater subsidization 75% Against 64% Of smaller contributions than is involved in appellants' hypothesis, one cannot say that the matching formula unfairly favors wealthy interests or large contributors. Moreover, the effect noted by appellants diminishes as the size of individual contributions approaches $1,000.

Finally, these examples clearly reveal that §§ 41 and 218 afford public subsidies for candidates, but appellants have raised no constitutional challenge to the provisions, either on First or Fifth Amendment grounds.

^147. Our responses to the certified constitutional questions pertaining to public financing of Presidential election campaigns are:

5. Does any statutory provision for the public financing of political conventions or campaigns for nomination or election to the Presidency or Vice Presidency violate the rights of one or more of the plaintiffs under the First or Ninth Amendment, the Due Process Clause of the Fifth Amendment, or Article I, Section 8, Clause 1, of the Constitution of the United States?

Answer: NO.

6. Do the particular provisions of Subtitle H and § 6096 of the Internal Revenue Code of 1954 deprive one or more of the plaintiffs of such rights under the First or Ninth Amendment or Article 1, Section 8, Clause 1, in that they provide federal tax money to support certain political candidates, parties, movements, and organizations or in the manner that they so provide such federal tax money?

Answer: NO.

^148. Unless otherwise indicated, all statutory citations in Part IV are to Title 2 of the United States Code, 1970 edition, Supplement IV, the relevant provisions of which are set forth in the Appendix to this opinion, infra, at 144-180.

^149. In administering Chapters 95 and 96 of Title 26, which provide for funding of Presidential election and primary campaigns, respectively, the Commission is empowered, inter alia, "to prescribe such rules and regulations . . . as it deems necessary to carry out the functions and duties imposed on it" by each chapter. 26 U.S.C. § 9009(b). See also 26 U.S.C. § 9039(b) (1970 ed., Supp. IV).

^150. The sections from Title 18, incorporated by reference into several of the provisions relating to the Commission's powers, were either enacted or amended by the 1971 Act or the 1974 amendments. They are codified at 18 U.S.C. §§ 608, 610, 611, 613, 614, 615, 616, and 617 (1970 ed., Supp. IV) (hereinafter referred to as Title 18 sections).

^151. Section 437c(b) also provides, somewhat redundantly, that the Commission "shall administer, seek to obtain compliance with, and formulate policy with respect to this Act" and the Title 18 sections.

^152. The Commission is charged with the duty under each Act to receive and pass upon requests by eligible candidates for campaign money and certify them to the Secretary of the Treasury for the latter's disbursement from the Fund. See 26 U.S.C. §§ 9003-9007, 9033-9038 (1970 ed., Supp. IV).

^153. This conclusion seems to follow from the manner in which the subsections of § 437g interrelate. Any person may file, and the

Clerk of the House or the Secretary of the Senate shall refer, believed or apparent civil or criminal violations to the Commission. Upon receipt of a complaint or referral, as the case may be, the Commission is directed to notify the person involved and to report the violation to the Attorney General or to make an investigation. § 437g(a)(2). The Commission shall conduct a hearing at that person's request. § 437g(a)(4). If after its investigation the Commission "determines . . . that there is reason to believe" that a "violation of this Act," i. e., a civil violation, has occurred or is about to occur, it "may endeavor to correct such violation by informal methods," failing which, the Commission "may institute a civil action for relief." § 437g(a)(5). Finally, paragraph (6) provides as follows:

"The Commission shall refer apparent violations to the appropriate law enforcement authorities to the extent that violations of provisions of chapter 29 of Title 18 are involved, or if the Commission is unable to correct apparent violations of this Act under the authority given it by paragraph (5), or if the Commission determines that any such referral is appropriate." § 437g(a)(6) (emphasis added).

While it is clear that the Commission has a duty to refer apparent criminal violations either upon their initial receipt or after an investigation, it would appear at the very least that the Commission, which has "primary jurisdiction" with respect to civil enforcement, § 437c(b), has the sole discretionary power "to determine" whether or not a civil violation has occurred or is about to occur, and consequently whether or not informal or judicial remedies will be pursued.

^154. Such a finding is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

^155. § 437c(a)(1), set forth in the Appendix to this opinion, infra, at 161-162.

^156. § 437c(a)(1)(A).

^157. The Court of Appeals, following the sequence of the certified questions, adopted a piecemeal approach to the six questions, reproduced below, concerning the method of appointment and powers of the Commission. Its basic holding, in answer to question 8(a), was that "Congress has the constitutional authority to establish and appoint (the Commission) to carry out appropriate legislative functions." 171 U.S.App.D.C., at 241, 519 F.2d, at 890. Appellants' claim, embodied in questions 8(b) through 8(f), that the Commission's powers go well beyond "legislative functions" and are facially invalid was in an overarching sense not ripe, since "(w)hether particular powers are predominantly executive or judicial, or insufficiently related to the exercise of appropriate legislative power is an abstract question . . . better decided in the context of a particular factual controversy." Id., at 243, 519 F.2d, at 892. While some of the statutory grants such as civil enforcement and candidate disqualification powers (questions 8(c) and 8(e)) raised, in the court's view, "very serious constitutional questions," only the power of the Commission to issue advisory opinions under § 437f(a) was ripe in the context of an attack on Congress' method of appointment. Even then, beyond the Commission's power to inform the public of its interpretations, the question whether Congress under § 437f(b) could validly give substantive effect to the Commission's opinions in later civil and criminal enforcement proceedings should, the Court of Appeals held, await a case in which a defense based on § 437f(b) was asserted. Finally, the question of the Commission's power under 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) to authorize nominating convention expenditures in excess of the statutory limits (question 8(f)) was found ripe because appellants had not challenged it in relation to the method of appointment but had asserted only that 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) sted excessive discretion in the Commission. The Court of Appeals found th at Congress had provided sufficient guidelines to withstand that attack.

The Court of Appeals accordingly answered the six certified questions as follows:

"8. Do the provisions in the challenged statutes concerning the powers and method of appointment of the Federal Election Com-

mission violate the rights of one or more of the plaintiffs under the constitutional separation of powers, the First, Fourth, Fifth, Sixth, or Ninth Amendment, Article I, Section 2, Clause 6, Article I, Section 5, Clause 1, or Article III?

"(a) Does 2 U.S.C. § 437c(a) violate such rights by the method of appointment of the Federal Election Commission? . . .

"Answer: NO

"(b) Do 2 U.S.C. §§ 437d and 437g violate such rights, in that they entrust administration and enforcement of the FECA to the Federal Election Commission? . . .

"Answer: NO as to the power to issue advisory opinions; UNRIPE as to all else.

"(c) Does 2 U.S.C. § 437g(a) violate such rights, in that it empowers the Federal Election Commission and the Attorney General to bring civil actions (including proceedings for injunctions) against any person who has engaged or who may engage in acts or practices which violate the Federal Election Campaign Act, as amended, or §§ 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18? . . .

"Answer: UNRIPE FOR RESOLUTION

"(d) Does 2 U.S.C. § 438(c) violate such rights, in that it empowers the Federal Election Commission to make rules under FECA in the manner specified therein? . . .

"Answer: UNRIPE FOR RESOLUTION

"(e) Does 2 U.S.C. § 456 violate such rights, in that it imposes a temporary disqualification on any candidate for election to federal office who is found by the Federal Election Commission to have failed to file a report required by Title III of the Federal Election Campaign Act, as amended ? . . .

"Answer: UNRIPE FOR RESOLUTION

"(f) Does § 9008 of the Internal Revenue Code of 1954 violate such rights, in that it empowers the Federal Election Commission to authorize expenditures of the national committee of a party with respect to presidential nominating conventions in excess of the limits enumerated therein? . . .

"Answer: NO"

^158. With respect to the Commission's power under 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) to authorize excessive convention expenditures (question 8(f)), the fact that appellants in the Court of Appeals may have focused their attack primarily or even exclusively upon the asserted lack of standards attendant to that power, see n. 157, supra, does not foreclose them from challenging that power in relation to Congress' method of appointment of the Commission's members. Question 8(f) asks whether vesting the Commission with this power under 26 U.S.C. § 9008 (1970 ed., Supp. IV) violates "such rights," which by reference to question 8 includes "the rights of (appellants) under the constitutional separation of powers." Since the certified questions themselves provide our jurisdictional framework, § 437h(b), the separation-of-powers aspect of appellants' attack on 26 U.S.C. § 9008(d)(3) (1970 ed., Supp. IV) is properly before this Court.

^159. The Federalist No. 47, p. 299 (G. P. Putnam's Sons ed. 1908).

^160. Id., at 302-303 (emphasis in original).

^161. The Federalist No. 51, pp. 323-324 (G.P. Putnam's Sons ed. 1908).

^162. "Officers of the United States" does not include all employees of the United States, but there is no claim made that the Commissioners are employees of the United States rather than officers. Employees are lesser functionaries subordinate to officers of the United States, see Auffmordt v. Hedden, 137 U.S. 310, 327, 11 S.Ct. 103, 108, 34 L.Ed. 674 (1890); United States v. Germaine, 99 U.S. 508, 25 L.Ed. 482 (18979), whereas the Commissioners, appointed for a statutory term, are not subject to the control or direction of any other executive, judicial, or legislative authority.

^163. Rule II of the Rules of the House of Representatives, the earliest form of which was adopted in 1789, provides for the election by the House, at the commencement of each Congress, of a Clerk, Sergeant at Arms, Doorkeeper, Postmaster, and Chaplain, each of whom in turn is given appointment power over the employees of his department. Jefferson's Manual and Rules of the House of Representatives §§ 635-636. While there is apparently no equivalent rule on the Senate side, one of the first orders of business at the first session of the Senate, April 1789, was to elect a Secretary and a Doorkeeper. Senate Journal 10 (1st & 2d Congress 1789-1793).

^164. 2 U.S.C. § 60-1(b).

^165. Appellee Commission has relied for analogous support on the existence of the Comptroller General, who as a "legislative officer" had significant duties under the 1971 Act. § 308, 86 Stat. 16. But irrespective of Congress' designation, cf. 31 U.S.C. § 65(d), the Comptroller General is appointed by the President in conformity with the Appointments Clause. 31 U.S.C. § 42.

^166. 2 M. Farrand, The Records of the Federal Convention of 1787, pp. 74, 76 (1911); The Federalist No. 48, pp. 308-310 (G. P. Putnam's Sons ed. 1908) (J. Madison); The Federalist No. 71, pp. 447-448 (G. P. Putnam's Sons ed. 1908) (A. Hamilton). See generally Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1029-1048 (1975).

^167. J. Madison, Notes of Debates in the Federal Convention of 1787, p. 385 (Ohio Univ. Press ed. 1966).

^168. Id., at 472 (emphasis added).

^169. "Col. Mason in opposition to Mr. Read's motion desired it might be considered to whom the money would belong; if to the people, the legislature representing the people ought to appoint the keepers of it." Ibid.

^170. Id., at 521.

^171. Id., at 527.

^172. Id., at 571-573.

^173. Id., at 575.

^174. "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."

^175. Since in future legislation that may be enacted in response to today's decision Congress might choose not to confer one or more of the powers under discussion to a properly appointed agency, our assumption is arguendo only. Considerations of ripeness prevent us from deciding, for example, whether such an agency could under § 456 disqualify a candidate for federal election consistently with Art. I, § 5, cl. 1. With respect to this and other powers discussed infra, this page and 138-141, we need pass only upon their nature in relation to the Appointments Clause, and not upon their validity vel non.

^176. Before a rule or regulation promulgated by the Commission under § 438(a) (10) may go into effect, it must be transmitted either to the Senate or House of Representatives together with "a detailed explanation and justification of such rule or regulation." § 438(c)(1). If the House of Congress to which the rule is required to be transmitted disapproves the proposed regulation within the specified period of time, it may not be promulgated by the Commission. Appellants make a separate attack on this qualification of the Commission's rulemaking authority, which is but the most recent episode in a long tug of war between the Executive and Legislative Branches of the Federal Government respecting the permissible extent of legislative involvement in rulemaking under statutes which have already been enacted. The history of these episodes is described in Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv.L.Rev. 569 (1953); in Newman & Keaton, Congress and the Faithful Execution of Laws Should Legislators Supervise Administrators?, 41 Cal.L.Rev. 565 (1953); and in Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Cal.L.Rev. 983 (1975). Because of our holding that the manner of appointment of the members of the Commission precludes them from exercising the rulemaking powers in question, we have no occasion to address this separate challenge of appellants.

^177. The subsidiary questions certified by the District Court relating to the composition of the Federal Election Commission, together with our answers thereto, are as follows:

Question 8(a). Does 2 U.S.C. § 437c(a) (1970 ed., Supp. IV) violate (the rights of one or more of the plaintiffs under the constitutional separation of powers, the First, Fourth, Fifth, Sixth, or Ninth Amendment, Art. I, § 2, cl. 6, Art. I, § 5, cl. 1, or Art. III) by the method of appointment of the Federal Election Commission?

With respect to the powers referred to in Questions 8(b)-8(f), the method of appointment violates Art. II, § 2, cl. 2, of the Constitution.

Question 8(b). Do 2 U.S.C. §§ 437d and 437g (1970 ed., Supp. IV) violate such rights, in that they entrust administration and enforcement of the FECA to the Federal Election Commission?

Question 8(c). Does 2 U.S.C. § 437g(a) (1970 ed., Supp. IV) violate such rights, in that it empowers the Federal Election Commission and the Attorney General to bring civil action (including proceedings for injunctions) against any person who has engaged or who may engage in acts or practices which violate the Federal Election Campaign Act, as amended, or §§ 608, 610, 611, 613, 614, 615, 616, or 617 of Title 18 (1970 ed., Supp. IV)?

Question 8(d). Does 2 U.S.C. § 438(c) (1970 ed., Supp. IV) violate such rights in that it empowers the Federal Election Commission to make rules under the FECA in the manner specified therein?

Question 8(e). Does 2 U.S.C. § 456 (1970 ed., Supp. IV) violate such rights, in that it imposes a temporary disqualification on any candidate for election to federal office who is found by the Federal Election Commission to have failed to file a report required by Title III of the Federal Election Campaign Act, as amended ?

Question 8(f). Does § 9008 of the Internal Revenue Code of 1954 violate such rights, in that it empowers the Federal Election Commission to authorize expenditures of the national committee of a party with respect to Presidential nominating conventions in excess of the limits enumerated therein?

The Federal Election Commission as presently constituted may not under Art. II, § 2, cl. 2, of the Constitution exercise the powers referred to in Questions 8(b)-8(f).

^178. We have not set forth specific answers to some of the certified questions. Question 9, dealing with alleged vagueness in several provisions, 171 U.S.App.D.C., at 252, 519 F.2d, at 901 (Appendix A), is resolved in the opinion to the extent urged by the parties. We need not respond to questions 3(g), 3(i), 4(b), and 7(f), id., at 250-251, 519 F.2d, at 899-900 (Appendix A), to resolve the issues presented.

^* Based upon Federal Election Campaign Laws, compiled by the Senate Library for the Subcommittee on Privileges and Elections of the Senate Committee on Rules and Administration (1975).

^1. So in original.

^1. The particular verbalization has varied from case to case. First Amendment analysis defies capture in a single, easy phrase. The basic point of our inquiry, however expressed, is to determine whether the Government has sought to achieve admittedly important goals by means which demonstrably curtail our liberties to an unnecessary extent.

^2. The 1910 legislation required disclosure of the names of recipients of expenditures in excess of $10.

^3. Ironically, the Court seems to recognize this principle when dealing with the limitations on contributions. Ante, at 25.

^4. The record does not show systematic harassment of the sort involved in NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958). But uncontradicted evidence was adduced with respect to actual experiences of minor parties indicating a sensitivity on the part of potential contributors to the prospect of disclosure. See, e. g., District Court findings of fact, affidavits of Wertheimer (P 6) and Reed (P 8), 2B App. 736, 742. This evidence suffices when the governmental interest in putting the spotlight on the sources of support for minor parties or splinter groups is so tenuous.

^5. The Court notes that 94.9% Of the funds raised by congressional candidates in 1974 came in contributions of less than $1,000, ante, at 26 n. 27, and suggests that the effect of the contribution limitations will be minimal. This logic ignores the disproportionate influence large contributions may have when they are made early in a campaign; "seed money" can be essential, and the inability to obtain it may effectively end some candidacies before they begin. Appellants have excerpted from the record data on nine campaigns to which large, initial contributions were critical. Brief for Appellants 132-138. Campaigns such as these will be much harder, and perhaps impossible, to mount under the Act.

^6. Whatever the effect of the limitation, it is clearly arbitrary Congress has imposed the same ceiling on contributions to a New York or California senatorial campaign that it has put on House races in Alaska or Wyoming. Both the strength of support conveyed by the gift of $1,000 and the gift's potential for corruptly influencing the recipient will vary enormously from place to place. Seven Senators each spent from $1,000,000 to $1,300,000 in their successful 1974 election campaigns. A great many congressional candidates spent less than $25,000. 33 Cong. Quarterly 789-790 (1975). The same contribution ceiling would seem to apply to each of these campaigns. Congress accounted for these tremendous variations when it geared the expenditure limits to voting population; but it imposed a flat ceiling on contributions without focusing on the actual evil attacked or the actual harm the restrictions will work.

^7. Suppose, for example, that a candidate's committee authorizes a celebrity or elder statesman to make a radio or television address on the candidate's behalf, for which the speaker himself plans to pay. As the Court recognizes, ante, at 24 n. 25, the Act defines this activity as a contribution and subjects it to the $1,000 limit on individual contributions and the $5,000 limit on contributions by political committees effectively preventing the speech over any substantial radio or television station. Whether the speech is considered an impermissible "contribution" or an allowable "expenditure" turns, not on whether speech by "someone other than the contributor" is involved, but on whether the speech is "authorized" or not. The contribution limitations directly restrict speech by the contributor himself. Of course, this restraint can be "avoided" if the speaker makes his address without consulting the candidate or his agents. Elsewhere I suggest that the distinction between "independent" and "authorized" political activity is unrealistic and simply cannot be maintained. For present purposes I wish only to emphasize that the Act directly restricts, as a "contribution," what is clearly speech by the "contributor" himself.

^8. The Court treats the Act's provisions limiting a candidate's spending from his personal resources as expenditure limits, as indeed the Act characterizes them, and holds them unconstitutional. As Mr. Justice MARSHALL points out, infra, at 287, by the Court's logic these provisions could as easily be treated as limits on contributions, since they limit what the candidate can give to his own campaign.

^9. Candidates who must raise large initial contributions in order to appeal for more funds to a broader audience will be handicapped. See n. 5, supra. It is not enough to say that the contribution ceilings "merely . . . require candidates . . . to raise funds from a greater number of persons," ante, at 22, where the limitations will effectively prevent candidates without substantial personal resources from doing just that.

^10. Under the Court's holding, candidates with personal fortunes will be free to contribute to their own campaigns as much as they like, since the Court chooses to view the Act's provisions in this regard as unconstitutional "expenditure" limitations rather than "contribution" limitations. See n. 8, supra.

^11. 113 Cong.Rec. 12165 (1967).

^12. Brief for Appellee Attorney General and for United States as Amicus Curiae 93.

^13. Id., at 94.

^14. Id., at 93.

^15. Such considerations have never before influenced the Court's evaluation of the risks of restraints on expression.

^16. The Court's opinion demonstrates one such intrusion. While the Court finds that the Act's expenditure limitations unconstitutionally inhibit a candidate's or a party's First Amendment rights, it imposes, by invoking the severability cause of Subtitle H, such limitations on qualifying for public funds.

^17. See, e. g., 26 U.S.C. §§ 9003, 9007, 9033, 9038 (1970 ed., Supp. IV).

^18. Cf. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944).

^19. See generally remarks of Senator Gore, 112 Cong.Rec. 28783 (1966).

^20. The problem is considered only in the limited context of Subtitle H.

^21. Section 454 provides that if a "provision" is invalid, the entire Act will not be deemed invalid. More than a provision, more than a few provisions, have been held invalid today. Section 454 probably does not even reach such extensive invalidation.

^1. That is, if the FEC were properly constituted, I would answer questions 8(b), 8(c), 8(d) (see infra, at 282-286), and 8(f) in the negative. With respect to questions 8(e), I reserve judgment on the validity of 2 U.S.C. § 456 (1970 ed., Supp. IV) which empowers the FEC to disqualify a candidate for failure to file certain reports. Of course, to the extent that the Court invalidates the expenditure limitations of the FECA, Part I-C, ante, at 39-59, the FEC, however, appointed, would be powerless to enforce those provisions.

Unless otherwise indicated, all statutory citations in this part of the opinion are to the Federal Election Campaign Act of 1971, §§ 301-311, 86 Stat. 11, as amended by the Federal Election Campaign Act Amendments of 1974, §§ 201-407, 88 Stat. 1272, 2 U.S.C. § 431 et seq. (1970 ed., Supp. IV).

^2. References to the "Commissioners," the "FEC," or its "members" do not include these two ex officio members.

^3. U.S. Const., Art. II, § 2, cl. 2.

^4. Id., Art. I, §§ 2, 3, and the Seventeenth Amendment.

^5. "The House of Representatives shall chuse their Speaker and other Officers . . . ." U.S. Const., Art. I, § 2, cl. 5.

"The Vice President of the United States shall be President of the Senate, but . . . (t)he Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States." § 3, cls. 4, 5.

^6. The distinction appears ante, at 126 n. 162.

^7. Indeed the FEC attacks as "erroneous" appellants' statement that the Court of Appeals ruled that "the FEC commissioners are not officers of the United States. Rather, it held that the grant of power to the President to appoint civil officers of the United States is not to be read as preclusive of Congressional authority to appoint such officers to aid in the discharge of Congressional responsibilities." Brief for Appellee Federal Election Commission 16 n. 19 (hereafter FEC Brief).

^8. How Congress may both appoint officers itself and condition appointment of the President's nominees on confirmation by a majority of both Houses of Congress is not explained.

^9. Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1042-1043 (1975).

^10. U.S. Const., Art. I, § 6, cl. 2, provides in part:

"(N)o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office."

See 1 M. Farrand, The Records of the Federal Convention of 1787, pp. 379-382 (1911) (hereafter Farrand); 2 Farrand 483.

^11. 1 Farrand 20.

^12. Id., at 210-211, 217, 219, 221, 222, 370, 375-377, 379-382, 383, 384, 419, 429, 435; 2 Farrand 180.

^13. Id., at 487. As ratified, the Ineligibility Clause provides:

"No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time . . . ." U.S. Const., Art. I, § 6, cl. 2.

^14. 1 Farrand 116, 120, 224, 233; 2 Farrand 37-38, 41-44, 71-72, 116, 138.

^15. 1 Farrand 63, 67.

^16. Id., at 21-22.

^17. Id., at 224, 233.

^18. 2 Farrand 183, 383, 394.

^19. Id., at 533.

^20. Id., at 627.

^21. C. Warren, The Making of the Constitution 641-642 (1947).

^22. § 437d(a)(9).

^23. § 437c(b).

^24. Section 437g(a)(7) provides:

"Whenever in the judgment of the Commission, after affording due notice and an opportunity for a hearing, any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any (relevant) provision . . . upon request by the Commission the Attorney General on behalf of the United States shall institute a civil action for relief . . . ." (Emphasis supplied.)

The FEC argues that " 'there is no showing in this case of a convincing legislative history that would enable us to conclude that "shall" was intended to be the "language of command." ' " FEC Brief 62 n. 52, quoting 171 U.S.App.D.C. 172, 244 n. 191, 519 F.2d 821, 893 n. 191 (1975). The contention is that the FEC's enforcement power is not exclusive, because the Attorney General retains the traditional discretion to decline to institute legal proceedings. However this may be, the FEC's civil enforcement responsibilities are substantial. Moreover it is authorized under 26 U.S.C. §§ 9010, 9040 (1970 ed., Supp. IV), to appear in and to defend actions brought in the Court of Appeals for the District of Columbia Circuit under §§ 9011, 9041, to review the FEC's actions under Chapters 95 and 96 of Title 26, and to appear in district court to seek recovery of amounts repayable to the Treasury under §§ 9007, 9008, 9038.

^25. Although the FEC resists appellants' attack on its position that it has "no general substantive rulemaking authority with regard to Title 18 spending and contribution limitations" (FEC Brief 49), it agrees "that there is inevitably some interplay between Title 2 and Title 18." (Id., at 55). It seeks to minimize the importance of the interplay by noting that its definitions of what is to be disclosed and reported would not be binding in judicial proceedings to determine whether substantive provisions of the Act had been violated, but would simply be extended a measure of deference as administrative interpretations. Appellants' reply is the practical one that, whether the FEC's power is substantive or not, persons violating its regulations do so at their peril. To illustrate the extent to which the FEC's regulations implicate the provisions of Title 18, appellants point to the FEC's interim guidelines for the New Hampshire and Tennessee special elections, 40 Fed.Reg. 40668, 43660 (1975), and its regulations, rejected by the Senate, providing that funds contributed to and expended from the "office accounts" of Members of Congress were contributions or expenditures "subject to the limitations of 18 U.S.C. §§ 608, 610, 611, 613, 614 and 615." See notice of proposed rulemaking, id., at 32951. Unless the FEC's regulations are to be given no weight in criminal proceedings, it seems plain that through those regulations the FEC will have a significant role in the implementation and enforcement of criminal statutes.

^26. The FEC itself cannot fashion coercive relief by, for example, issuing cease-and-desist orders. To obtain such relief it must apply to the courts itself or through the Attorney General.

^27. The same preconditions are imposed with respect to regulations issued under the public financing provisions of the election laws. 26 U.S.C. §§ 9009 and 9039 (1970 ed., Supp. IV). No such requirement appears to exist with respect to the FEC's power to make "policy" with respect to the enforcement of the criminal provisions in Title 18 or with respect to any power it may have to issue rules and regulations dealing with the civil enforcement of those provisions. See also § 439a.

^28. Section 438(c)(4) defines "legislative day." See also 26 U.S.C. §§ 9009(c)(3), 9039(c)(3) (1970 ed., Supp. IV).

^29. U.S. Const., Art. I, § 7, cl. 3.

^30. Surely the challengers to the provision for congressional disapproval do not mean to suggest that the FEC's regulations must become effective despite the disapproval of one House or the other. Disapproval nullifies the suggested regulation and prevents the occurrence of any change in the law. The regulation is void. Nothing remains on which the veto power could operate. It is as though a bill passed in one House and failed in another.

^31. The Federalist No. 73, pp. 468-469 (Wright ed. 1961).

^1. "In the Nation's seven largest States in 1970, 11 of the 15 major senatorial candidates were millionaires. The four who were not millionaires lost their bid for election." 117 Cong.Rec. 42065 (1971) (remarks of Rep. Macdonald).

^2. Of course, § 608(b)'s enhancement of the wealthy candidate's natural advantage does not require its invalidation. As the Court demonstrates, § 608(b) is fully justified by the governmental interest in limiting the reality and appearance of corruption. Ante, at 26-29.

In addition to § 608(a), § 608(c), which limits overall candidate expenditures in a campaign, also provides a check on the advantage of the wealthy candidate. But we today invalidate that section, which unlike § 608(a) imposes a flat prohibition on candidate expenditures above a certain level, and which is less tailored to the interest in equalizing access than § 608(a). The effect of invalidating both § 608(c) and § 608(a) is to enable the wealthy candidate to spend his personal resources without limit, while his less wealthy opponent is forced to make do with whatever amount he can accumulate through relatively small contributions.

204 F.3d 1125 (2000)

[1126] [1127] [1128] John C. Deal argued the cause and filed the briefs for petitioner.

Kathryn R. Norcross, Counsel, Federal Deposit Insurance Corporation, argued the cause for respondent. With her on the brief were Ann S. DuRoss, Assistant General Counsel, and Colleen J. Boles, Senior Counsel. Thomas A. Schulz, Assistant General Counsel, and Ashley Doherty and Thomas L. Holzman, Counsel, entered appearances.

Before: EDWARDS, Chief Judge, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Separate opinion concurring in part and concurring in the judgment filed by Circuit Judge RANDOLPH.

STEPHEN F. WILLIAMS, Circuit Judge:

Congress has given the Federal Deposit Insurance Corporation ("FDIC") a variety of weapons to use against individuals whose actions threaten the integrity of federally insured banks or savings associations. Among these is the power to remove a bank officer from his position and to bar him from further participation in the operations of a federally insured depository institution. See 12 U.S.C. § 1818(e)(1). On April 30, 1996 the FDIC notified Michael D. Landry that it intended to seek such an order against him because of his conduct as Senior Vice President, Chief Financial Officer, and Cashier of First Guaranty Bank, Hammond, Louisiana.

As required by statute, the FDIC assigned the matter to an administrative law judge for a formal, on-the-record, administrative hearing. See 12 U.S.C. § 1818(e)(4); 5 U.S.C. §§ 554, 556. The ALJ held a two-week hearing and then issued a decision recommending that the FDIC issue the proposed prohibition order.^[1] Landry filed exceptions to the ALJ's recommendation, and the case was forwarded to the FDIC's Board of Directors for a final decision. The Board agreed with the recommendation and issued an order of removal and prohibition. See In re Michael D. Landry, FDIC 95-65e, May 25, 1999 ("Order"), Joint Appendix ("J.A.") 218, 264-66. Landry filed a timely petition for review. The principal issue for review is Landry's argument that the FDIC's method of appointing ALJs violates the Appointments Clause of the Constitution, Art. II, § 2, cl. 2. Landry also argues that the evidence against him did not meet the statutory minimum for the remedies against him and that the FDIC violated various procedural requirements. We affirm.

* * * * * *

From the late 1980s to early 1993, First Guaranty was in serious financial trouble. In 1990, the FDIC issued a capital directive requiring it to obtain a $4.7 million infusion of capital by January 1, 1991. [1129] The Bank tried unsuccessfully to raise capital through a stock solicitation, and when the FDIC completed its 1991 examination the Bank's position looked bleaker than ever. Soon afterward, the FDIC told the Bank's board of directors that it would seek to terminate the Bank's deposit insurance. It agreed, however, to delay termination proceedings while further recapitalization plans proceeded. In early 1992 the FDIC conducted another examination and found that the Bank's financial position had improved slightly, but that it was still a candidate for near term failure. After Landry and others pursued a series of attempts to add capital to the Bank—some of which can only be described as bizarre and desperate—the Bank's board on September 17, 1992 accepted an offer of purchase, and in December 1992 the Bank received the necessary capital infusion.

Landry's alleged malfeasance occurred in connection with a capital enhancement plan initially proposed by Rick A. Jenson, the Bank's former president, and Scott Crabtree, a consultant, involving a corporation called Pangaea. The FDIC and Landry agree that he had a role in this plan but disagree as to the scope of his role, his motivation, and the significance of his conduct. The FDIC Board, adopting the ALJ's factual findings, found that Landry and his two associates were the incorporators of Pangaea Corporation, and that they planned to use Pangaea to acquire an 80% interest in the Bank. They hoped to raise $16 million by selling 30% of Pangaea's stock, retaining 70% for themselves. Of the $16 million Pangaea would use $7.5 million to beef up the Bank's capital through purchases of its stock, $6.5 million to form a limited partnership to buy real estate from the Bank's portfolio, and $2 million to pay Pangaea expenses and to finance other ventures. They presented this plan as a means of finding capital for the Bank, and obtained approval at an executive meeting of the Bank's board of directors on August 8, 1991, but as Landry would later admit, the board was misled because the plan was "not presented as a management takeover/buyout of the Bank." Instead, the Bank's board was led to believe that Pangaea was an arm of the Bank so that a capital infusion would entail no genuine change in control of the Bank. After board approval, the Bank forwarded a draft copy of a descriptive booklet to the FDIC examiners. They rejected the plan because they believed it offered no short term capital infusion and Pangaea had no serious prospect of actually raising the $16 million. (The FDIC had determined that investors could have acquired complete ownership of the entire bank for $5 million, so that investors would not be willing to pay $16 million for a 30% interest in an entity (Pangaea) that would own only 80% of the Bank.)

Undeterred, Jenson, Crabtree and Landry pursued a variety of imaginative sources of capital, many of which involved Pangaea. These sources included: individuals seeking United States citizenship under a provision of the immigration laws admitting individuals who invest $1 million in a new business venture that creates ten or more new jobs; pension funds solicited for the immigration scheme with the help of an image-enhancement firm with pension fund contacts; a preferred stock offering for Pangaea prepared by Funding Placement Services; and an Ecuadorian currency scheme through which one could purportedly obtain a 500% return in six weeks.

Although this "Pangaea plan" never much developed, and although Pangaea was unlikely ever to have received approval to acquire the Bank from its board of directors or federal regulators, the FDIC Board found that Landry's fellow Pangaea incorporators—with Landry's full knowledge and cooperation—executed enough of the plan to cause the Bank to lose substantial sums of money in the form of promotional expenses, see Order at 14, 17-18, 29-30, J.A. at 231, 234-35, 246-47, questionable loans, see id. at 14-15, 17, J.A. 231-32, 234, and other unwise or illegal banking activities, see id. at 13, 16, 20, J.A. at 230, 233, 237, without informing the [1130] directors that their plan was designed to enrich the incorporators while providing little or no benefit to the Bank itself. The Board also found Landry had failed to satisfy FDIC rules requiring disclosure of material changes in the Bank's operations. See Order at 20, J.A. at 237.

The Board's most compelling evidence came in the form of a 16-page letter dated June 3, 1993 that Landry himself wrote to bank examiner G. Martin Cooper ("Landry letter"), and to which he attached more than 500 pages of supporting material. The Landry letter described the activities at issue here and linked them to Pangaea. Landry's personal culpability, laid bare in this letter, was reinforced by Landry's resignation letter (not accepted by the Bank's board of directors), in which he described his conduct as "self dealing" and "for the good of Pangaea Corporation at the expense of First Guaranty Bank," as well as his May 12, 1995 deposition, in which he admitted that Pangaea had become a vehicle to "make money off the bank." After examining all of the evidence, the FDIC Board concluded that although other wrongdoers may have been more culpable, Landry's conduct met the statutory criteria and thus warranted a removal and prohibition order. See Order at 21-22, J.A. at 238-39.

Appointments Clause

Landry argues that the FDIC's method for appointing ALJs violates the Appointments Clause of the Constitution:

[The President] ... shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

U.S. Const., Art. II, § 2, cl. 2.

Landry would classify ALJs who conduct administrative proceedings for the various federal banking agencies as "inferior officers" of the United States. If so, Congress's instruction to the banking agencies to "establish their own pool of administrative law judges" to conduct such hearings, see Federal Institutions Reform, Recovery, and Enforcement Act ("FIRREA"), § 916, 103 Stat. at 486, codified at 12 U.S.C. § 1818 note, would be unconstitutional because it vests appointment authority in a set of agencies that are not (according to Landry) "departments" under the Appointments Clause. The FDIC counters that the ALJs in question need not be appointed by heads of departments because they are employees rather than inferior officers.

The FDIC also makes a preliminary objection—that Landry has shown no prejudice from any Appointments Clause violation that may have occurred. The FDIC itself determined Landry's responsibility after reviewing the ALJ's recommended decision de novo. See 12 U.S.C. § 1818(h)(1) (requiring the FDIC to make its own findings of fact when issuing its final decision); 12 CFR §§ 308.38, 308.40 (requiring the FDIC Board to issue the agency's final decision). The Supreme Court has not decided whether an Appointments Clause violation requires reversal where it appears to have done a party no direct harm. Ryder v. United States, 515 U.S. 177, 182-83, 186, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995). But in Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), in reaching the Appointments Clause issue despite its not having been raised below, the Court classified the clause as "structural," because of its purpose to prevent encroachment of one branch on another and to preserve the Constitution's structural integrity. Id. at 878-79, 111 S.Ct. 2631. Here, of course, the issue was raised all right; the problem is that Landry's injury may be questionable. But the Court uses the term "structural" for a set of errors for which no direct injury is necessary—such as a criminal defendant's indictment by a grand jury chosen in a [1131] racially or sexually discriminatory manner. See Vasquez v. Hillery, 474 U.S. 254, 261 & n. 4, 263, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (race); Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 91 L.Ed. 181 (1946) (sex). In such cases, of course, the later conviction by a petit jury supplies virtual certainty that a properly constituted grand jury would have indicted, as the Court has observed in regard to lesser ranking grand jury errors. See United States v. Mechanik, 475 U.S. 66, 70-71 & n. 1, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986). As grand juries do not draft opinions for the petit jury, the latter's insulating effect is positively surgical compared to the FDIC's action here, however independent its review of the ALJ's decision.

The Court recently noted its use of the label "structural," observing that only in a limited class of cases has it "found an error to be 'structural,' and thus subject to automatic reversal." Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999). Issues of separation of powers (including Appointments Clause matters, Freytag, 501 U.S. at 878, 111 S.Ct. 2631), seem most fit to the doctrine; it will often be difficult or impossible for someone subject to a wrongly designed scheme to show that the design—the structure—played a causal role in his loss. And in Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995), the Court gave a further explanation: "[S]eparation of powers is a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified.... [I]t is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict." Id. at 239, 115 S.Ct. 1447. For Appointments Clause violations, demand for a clear causal link to a party's harm will likely make the Clause no wall at all.

There is certainly no rule that a party claiming constitutional error in the vesting of authority must show a direct causal link between the error and the authority's adverse decision. In fact, the opposite is often true. For example, in a challenge to the authority of a non-Article III court on the grounds that the challenger is entitled to a court enjoying Article III's exceptional tenure provisions, the assumption that inadequate tenure may prejudice the challenger is so automatic that it usually goes unmentioned. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973); Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932). Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), extended this principle to general separation-of-powers claims. Although the union plaintiffs there had clearly been injured by a suspension and proposed cancellation of their cost-of-living adjustments, see id. at 721, 106 S.Ct. 3181, there was no showing that the Comptroller General's exposure to removal by Congress in any way increased the probability of the cuts. Instead, the Court seemed to presume that subtle variations in the quality of tenure would affect conduct. See also Ryder, 515 U.S. at 182-83, 186-88, 115 S.Ct. 2031.

Of course in the above cases there was no de novo review following the decision of the (arguably) unlawfully designated official. (But see Vasquez v. Hillery, 474 U.S. at 261 & n. 4, 263, 106 S.Ct. 617, and Ballard v. United States, 329 U.S. at 195, 67 S.Ct. 261, reversing convictions based on indictment by discriminatorily selected grand jury, despite later petit jury verdict, discussed above at 6-7.) Here there is. But Freytag itself indicates that judicial review of an Appointments Clause claim will proceed even where any possible injury is radically attenuated. There, the Court made plain that, had it not found the "inferior officer" appointed in a constitutional way, it was ready to throw out the Tax Court's decision simply on the ground that special trial judges ("STJs") held what it viewed as clearly the powers of an "inferior [1132] officer" (to make final decisions), even though the STJ had not exercised any power to make final decisions in Freytag's case. See 501 U.S. at 871-72 & n. 2, 882, 111 S.Ct. 2631. Indeed, the Court made no attempt to explain how the STJ's possession of powers not used in Freytag's case could possibly have prejudiced him. Id.

Moreover, Appointments Clause analysis of purely decision recommending employees presents a special problem. Suppose that a purely recommendatory power, i.e., one followed as here by de novo review, can make an employee an "inferior officer" within the meaning of the Appointments Clause—a hypothesis we must assume at this stage. If the process of final de novo review could cleanse the violation of its harmful impact, then all such arrangements would escape judicial review, unless the officer's powers happened fortuitously, as in Freytag, to be combined with still greater powers. Recognition of this problem may well explain the Court's statement in United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952), that a defect in the appointment of an "examiner" (precursor of today's ALJ) was, if properly raised, "an irregularity which would invalidate a resulting order." Id. at 38, 73 S.Ct. 67. Thus, to refuse to entertain Landry's claim is to rule, in effect, that officers holding purely recommendatory powers subject to de novo review are not "inferior officers," i.e., it is to resolve the merits without purporting to do so.

For this reason our decision here is not inconsistent with Doolin v. OTS, 139 F.3d 203 (D.C.Cir.1998). There we relied on Mechanik, 475 U.S. at 70-71, 106 S.Ct. 938, to conclude that although enforcement proceedings culminating in a "cease and desist order" were initiated by an improperly appointed Director of the OTS and therefore defective, the ultimate issuance of the final merits order by a properly appointed Director ratified the initiation and cured the error. Doolin, 139 F.3d at 212-14. But Doolin did not present the catch-22 of the present case, where the government's argument requires one to believe that, even if we assume that a pure power to recommend is enough to lift an employee into the august "inferior officer" realm, it is not enough to taint the ultimate judgment and thus give the loser a chance to raise the issue.

Finally, we note that in United States v. Colon-Munoz, 192 F.3d 210 (1st Cir.1999), the First Circuit said that "structural" has two meanings, referring not only to errors related to the constitutional structure but also to ones simply deemed so "fundamental" as to deprive a criminal trial of basic fairness. Id. at 217-18 n. 9. The court used the distinction to justify not applying Freytag's rejection of the waiver argument, a problem not before us. But Colon-Munoz never passed on the issue that is before us—whether an issue that is structural in the sense that it derives from the constitutional structure can be reviewed even where the link between the error and the party's harm is conjectural.

We now turn to whether a violation of the Appointments Clause occurred. The line between "mere" employees and inferior officers is anything but bright. See Nick Bravin, Note, Is Morrison v. Olson Still Good Law? The Court's New Appointments Clause Jurisprudence, 98 Colum. L.Rev. 1103, 1114-15 (1998) ("Early Supreme Court attempts to define the term 'officer' provide inexact, if any, judicially manageable standards"); Edward Susolik, Note, Separation of Powers and Liberty: The Appointments Clause, Morrison v. Olson, and Rule of Law, 63 S. Cal. L.Rev. 1515, 1545 (1990) ("[A] definitive understanding of the term 'officer' is not forthcoming for two simple reasons: (1) there are too few cases for any consistent precedential principle to be articulated, and (2) the few cases that do exist posit conclusions rather than arguments and provide little insight to justify their results."). In fact, the earliest Appointments Clause cases often employed circular logic, granting officer status to an official based in part upon his appointment by the head [1133] of a department. See, e.g., United States v. Mouat, 124 U.S. 303, 307, 8 S.Ct. 505, 31 L.Ed. 463 (1888) ("Unless a person in the service of the Government ... holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States"); United States v. Germaine, 99 U.S. 508, 510, 25 L.Ed. 482 (1878); United States v. Hartwell, 73 U.S. (6 Wall) 385, 393, 18 L.Ed. 830 (1867). In an attempt to clarify the inquiry, the Court has often said that "any appointee exercising significant authority pursuant to the laws of the United States is an 'Officer of the United States,'" Buckley v. Valeo, 424 U.S. 1, 126 n.162, 46 L.Ed.2d 659, 96 S.Ct. 612 (1976); see also Edmond v. United States, 520 U.S. 651, 662, 137 L.Ed.2d 917, 117 S.Ct. 1573 (1997); Ryder v. United States, 515 U.S. 177, 132 L.Ed.2d 136, 115 S.Ct. 2031 (1995); Freytag, 501 U.S. at 881-82, 111 S.Ct. 2631,^[2] but ascertaining the test's real meaning requires a look at the roles of the employees whose status was at issue in other cases.

In the most analogous case, Freytag, the Court decided that STJs were inferior officers. 501 U.S. at 881-82, 111 S.Ct. 2631. In so finding, the Court relied on authority of the STJs not matched by the ALJs here. In particular, the Court noted that STJs have the authority to render the final decision of the Tax Court in declaratory judgment proceedings and in certain small-amount tax cases. See id. at 882, 111 S.Ct. 2631. But the ALJs here can never render the decision of the FDIC. See 12 CFR § 308.38 (noting that ALJs must file a "recommended decision, recommended findings of fact, recommended conclusions of law, and [a] proposed order" (emphasis added)). Final decisions are issued only by the FDIC Board of Directors. See 12 CFR § 308.40(a), (c). Moreover, even for the non-final decisions of the type made by the STJ in Freytag, the Tax Court was required to defer to the STJ's factual and credibility findings unless they were clearly erroneous, see Tax Court Rule 183(c), 26 U.S.C.App. (1994); Stone v. Commissioner, 865 F.2d 342, 344-47 (D.C.Cir.1989), whereas here the FDIC Board makes its own factual findings, see 12 U.S.C. § 1818(h)(1); 12 CFR § 308.40(c); see also In re Landry, FDIC-95-65e, 1999 WL 639568, at *1 (FDIC July 8, 1999) (noting that the FDIC had given Landry's case "an exhaustive de novo review"). Landry argues that the FDIC Board did not undertake a de novo review of his case, but his characterization of the FDIC's work goes only to its carefulness, not its authority.

It is, to be sure, uncertain just what role the STJs' power to make final decisions played in Freytag. Many of the features of the STJ job that the Court found to contribute to its being covered by the Appointments Clause have analogues here. The office of STJ was "established by Law" (the threshold trigger for the Appointments Clause) and the "duties, salary, and means of appointment" for the office were specified by statute, a factor that has proved relevant in the Court's Appointments Clause jurisprudence. Freytag, 501 U.S. at 881, 111 S.Ct. 2631. The ALJ position here is also "established by Law," as are its specific duties, salary, and means of appointment. See 5 U.S.C. § 5372 (pay scales for ALJs); 5 U.S.C. § 3105 (hiring practices); 5 U.S.C. §§ 556-557 (functions); 12 CFR pt. 308 (same). Similarly, [1134] both the ALJs here and the STJs in Freytag "take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders." Freytag, 501 U.S. at 881-82, 111 S.Ct. 2631. And, the Court observed, "In the course of carrying out these important functions, the special trial judges exercise significant discretion," id. at 882, 111 S.Ct. 2631, rather a magic phrase under the Buckley test. Further, the Court introduced mention of the STJs' power to render final decisions with something of a shrug: "Even if the duties" of STJs involving conduct of nonfinal proceedings "were not as significant as we and the two courts [Tax Court and Fifth Circuit] have found them to be, our conclusion would be unchanged." Id. Only then did it go on to discuss the STJs' power to make final decisions.

Nonetheless, in another way the Court laid exceptional stress on the STJs' final decisionmaking power. After noting those powers, the Court went on to explain why Freytag could raise the claim even though in his case the STJ had not been exercising them:

Special trial judges are not inferior officers for purposes of some of their duties under [the enabling statute], but mere employees with respect to other responsibilities. The fact that an inferior officer on occasion performs duties that may be performed by an employee not subject to the Appointments Clause does not transform his status under the Constitution.

Id. All this explanation would have been quite unnecessary if the purely recommendatory powers were fatal in themselves. Accordingly, we believe that the STJs' power of final decision in certain classes of cases was critical to the Court's decision. As the ALJs hired pursuant to § 916 of FIRREA have no such powers, we conclude that they are not inferior officers.

Privilege and Brady/Jencks claims

During pre-trial discovery the FDIC asserted claims of deliberative process, law enforcement, and attorney-client privilege in various permutations to justify withholding 97 documents. As required by the FDIC's rules, see 12 CFR § 308.25(e), FDIC enforcement counsel produced a privilege log which briefly described each document and indicated its date, author, and recipient and the privileges claimed. In addition, enforcement counsel produced the affidavit of Cottrell L. Webster, the Memphis regional director of the FDIC's division of supervision, claiming to have personally reviewed each of the withheld documents, formally invoking the law enforcement and deliberative process privileges, and explaining how each privilege applied.

The ALJ rejected an initial effort to compel production of the documents, and the FDIC denied interlocutory review. It specifically rejected Landry's claim that there were documents that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), required the FDIC to disclose. In doing so it observed that enforcement counsel's assurance that no such withheld documents existed was enough to defeat Landry's claims in the absence of some source of doubt rising above Landry's unadorned "suspicions." The ALJ also denied several requests to compel production made during the hearing itself. But when the hearing was over, the FDIC Executive Secretary ordered that the record be reopened and that FDIC enforcement counsel submit a more detailed privilege log. After reviewing the revised privilege log, the Board upheld the assertion of privilege for 44 of the documents but reopened the record a second time and ordered enforcement counsel to produce the remaining 46 documents (seven had been produced to Landry for other reasons) for in camera inspection.

After reviewing the newly submitted documents, the Board found most of them not to be privileged but did not order disclosure because it found the error harmless in light of the cumulative nature of the information withheld. See Order at 5-6, 51-52, J.A. at 223-24, 268-69. The [1135] FDIC Board did not address any of Landry's claims under Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957). Because the FDIC had not ruled on Landry's Brady and Jencks claims for the documents that it did not review in camera, we ordered the FDIC to produce these documents so that we could decide whether material had been withheld improperly.

Privilege. We begin with Landry's challenges to the FDIC's claims of privilege. His most substantial argument is that the deliberative process and law enforcement privileges were not properly invoked. Assertion of either of these qualified, common law executive privileges requires: (1) a formal claim of privilege by the "head of the department" having control over the requested information; (2) assertion of the privilege based on actual personal consideration by that official; and (3) a detailed specification of the information for which the privilege is claimed, with an explanation why it properly falls within the scope of the privilege. See In re Sealed Case, 856 F.2d 268, 271 (D.C.Cir. 1988) (noting the requirements for invoking the law enforcement privilege); Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C.Cir.1984) (same for deliberative process privilege). Landry's argument is that assertion merely by the Memphis regional director of the FDIC's division of supervision, Cottrell L. Webster, rather than by the head of the FDIC, is inadequate.

The argument mistakenly assumes that only assertion by the head of the overall department or agency is enough. Our cases hold to the contrary. In Tuite v. Henry, 98 F.3d 1411 (D.C.Cir.1996), we allowed Counsel to the Justice Department's Office of Professional Responsibility, rather than the Attorney General herself, to assert the law enforcement privilege for information obtained during investigations of potentially illegal Justice Department recordings of conversations between a defendant and his lawyer. See id. at 1417. Similarly, in Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336 (D.C.Cir.1984), in rejecting enforcement counsel's assertion of the law enforcement privilege, we implied that officials other than the head of the department could assert the privilege, stating: "the files had not been examined for this purpose by responsible members or officers of CFTC." Id. at 1342 (emphasis added); see also Kerr v. United States Dist. Ct. for North. Dist. of Cal., 511 F.2d 192, 198 (9th Cir.1975) (finding common law executive privilege inapplicable because "[n]either the Chairman of the [California Adult] Authority nor the Director of Corrections nor any official of these agencies asserted, in person or writing, any privilege in the district court" (emphasis added)), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976). District courts in this Circuit have also allowed lesser officials to assert these privileges. See, e.g., Koehler v. United States, 1991 WL 277542, at *5 (D.D.C. Dec. 9, 1991) (allowing the head of the U.S. Army Criminal Investigation Command to assert privilege); Alexander v. FBI, 186 F.R.D. 154, 166 (D.D.C.1999) (implying that affidavits of FBI general counsel or inspector general would have been sufficient if they had provided enough information to assess whether the law enforcement privilege applied).

For these privileges, it would be counterproductive to read "head of the department" in the narrowest possible way. The procedural requirements are designed to "ensure that the privilege[s are] presented in a deliberate, considered, and reasonably specific manner." In re Sealed Case, 856 F.2d at 271. As we have seen, built into the requirements is the need for "actual personal consideration" by the asserting official. Id. Insistence on an affidavit from the very pinnacle of agency authority would surely start to erode the substance of "actual personal" involvement. See generally Note, The Military and State Secrets Privilege: Protection for the National Security or Immunity for the Executive?, 91 Yale L.J. 570, 572 n.18 (1982) [1136] (noting widespread belief that official claims of privilege by department heads are often made after perfunctory review of subordinates' decisions). Further, both privileges advance important goals; the gains from imposing demands in the interest of careful assertion must be balanced against the losses that would result of imposing super-stringent procedures. See United States Dep't of Energy v. Brett, 659 F.2d 154, 155-56 (Temp. Emer. Ct.App. 1981).

Under our cases, the head of the appropriate regional division of the FDIC's supervisory personnel is of sufficient rank to achieve the necessary deliberateness in assertion of the deliberative process and law enforcement privileges.

We note that decisions involving the more sensitive and absolute privilege for state and military secrets have been more insistent on assertion at the highest level. See, e.g., United States v. Reynolds, 345 U.S. 1, 7-8 n. 20, 97 L.Ed. 727, 73 S.Ct. 528 (1953) (quoting Duncan v. Cammell, Laird & Co., [1942] A.C. 624, for the proposition that the decision to invoke the state secrets privilege should be taken by "the minister who is the political head of the department"); Clift v. United States, 597 F.2d 826, 829 (2d Cir.1979) (declining to require disclosure where the Secretary of Defense did not invoke the privilege because of a statute criminalizing such disclosure but noting "the Government would be wiser not to put courts to this test in the future"); Kinoy v. Mitchell, 67 F.R.D. 1, 9-10 (S.D.N.Y.1975) (requiring Attorney General himself to lodge a formally sufficient claim of privilege); 26 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5670 (1992). We express no opinion on who may assert that privilege.

Landry's claim that the FDIC fell fatally short by not including the disputed documents in the record is meritless. See Vaughn v. Rosen, 484 F.2d 820, 825-26 (D.C.Cir.1973) (noting the immense and unjustifiable cost to the appellate courts of mandatory review of documents for privileged material). But see Kerr v. United States Dist. Ct. for North. Dist. of Cal., 426 U.S. 394, 405-06, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) (noting that in camera review may be used to resolve a privilege dispute).

Landry also argues that the FDIC waived its privileges by initiating this action. He is mistaken. Here he relies on an erroneous reading of In re Subpoena Duces Tecum Served on the OCC, 145 F.3d 1422 (D.C.Cir.), reh'g granted, 156 F.3d 1279 (D.C.Cir.1998). In our first pass at the case, we said that the deliberative process privilege was unavailable where "the Constitution or a statute makes the nature of governmental officials' deliberations the issue," offering Title VII cases as an archetypal instance. See 145 F.3d at 1424. But when the government in petition for rehearing expressed anxiety that any claim of arbitrary and capricious decisionmaking would necessarily call the government's deliberations into question, we responded by explaining that "our holding ... is limited to those circumstances in which the cause of action is directed at the agency's subjective motivation." 156 F.3d at 1280. Because an ordinary enforcement action in no way implicates the FDIC's subjective motivations, and Landry makes no credible claims that improper factors motivated this enforcement action, there is no waiver.

Brady/Jencks. In its order the FDIC Board assumed without deciding that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), applies to enforcement proceedings, and though the Board's order did not address Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), FDIC counsel assures us that the FDIC has the same view of it. Thus we also assume without deciding that both cases apply. Cf. Communist Party of the United States v. Subversive Activities Control Bd., 254 F.2d 314, 327-28 (D.C.Cir.1958) (holding that in agency adjudications in which the government has not claimed privilege, written reports made at the time of an event must be [1137] produced when the credibility of the witness on matters discussed in the report is in question). After reviewing the documents alleged to contain Jencks and Brady material, we find no reason to disturb the FDIC's order.

We begin with Brady. After Landry requested that the FDIC produce all Brady materials, the government informed the ALJ and the FDIC Board that it had reviewed the contested documents and had disclosed all exculpatory factual material. Normally we accept the government's representations as to whether documents in its possession constitute Brady material. See Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (noting that a prosecutor's decision as to whether exculpatory Brady information exists or is material is usually final); United States v. Lloyd, 992 F.2d 348, 352 (D.C.Cir.1993) (same). As the FDIC observed in denying interlocutory review, it takes more than the adverse party's conclusory suspicions to impel the adjudicator to delve behind the government's representation that it has conducted a Brady review and found nothing.

Landry's Jencks claims have more merit. He argues that the withheld reports by Jerry Cox and G. Martin Cooper, the bank examiners who testified at his hearing, touch upon the events and activities discussed in their testimony and therefore must be produced. See Jencks, 353 U.S. at 668, 77 S.Ct. 1007. Because the FDIC concedes Jencks's applicability in this case, Landry has established a prima facie violation if the documents in question cover the same territory as the examiners' testimony. After examining the documents and the examiners' testimony we find that several of them do so. Even so, a privilege might beat the Jencks claim. See Norinsberg Corp. v. USDA, 47 F.3d 1224, 1229 n. 5 (D.C.Cir.1995) (presuming that, in a license revocation hearing in which the agency had adopted the Jencks Act, a witness's opinions in a report that formed part of the deliberative process would be protected from Jencks Act disclosure); see also Communist Party, 254 F.2d at 327. But see Jencks, 353 U.S. at 671-72, 77 S.Ct. 1007 (noting that criminal actions must be dismissed when the government chooses not to comply with a court order to produce relevant statements or reports on the ground of privilege). But the FDIC here makes no claim that privilege defeats its Jencks obligations—though the ALJ did.

The FDIC does, however, claim harmless error, and the claim is sound. Because these documents merely duplicate other evidence in the record, we find the error harmless even under the strict application of harmless error used to assess Jencks violations. See Norinsberg Corp., 47 F.3d at 1230; United States v. Lam Kwong-Wah, 924 F.2d 298, 310 (D.C.Cir. 1991).

Evidence Satisfying the Statutory Standard

The statute authorizes a prohibition or removal order:

Whenever the [FDIC] determines that—

(A) any institution-affiliated party has, directly or indirectly—

...

(ii) engaged or participated in any unsafe or unsound practice in connection with any insured depository institution or business institution; or

(iii) committed or engaged in any act, omission, or practice which constitutes a breach of such party's fiduciary duty;

(B) by reason of the violation, practice, or breach described in ... subparagraph (A)—

(i) such ... institution ... has suffered or will probably suffer financial loss or other damage;

.....

(iii) such party has received financial gain or other benefit by reason of such violation ...; and

(C) such violation, practice, or breach—

[1138] (i) involves personal dishonesty on the part of such party; or

(ii) demonstrates willful or continuing disregard by such party for the safety or soundness of such ... institution ...

12 U.S.C. § 1818(e)(1) (1994). That is, the statute requires: misconduct, with certain adverse effects, committed with a culpable state of mind. Landry argues that each of these three factors is absent.

Misconduct. The Board ruled that Landry's actions constituted both unsafe and unsound banking practices under § 1818(e)(1)(A)(ii) and breaches of his fiduciary duty under § 1818(e)(1)(A)(iii). Because there is significant overlap between the two categories, see Kaplan v. OTS, 104 F.3d 417, 421 & n.2 (D.C.Cir.1997) (recognizing that both involve undue risk and that a fiduciary breach can qualify as an unsafe or unsound practice), it is unsurprising that the Board found that most of Landry's misconduct fit into both categories. Landry argues that fiduciary breach is a matter of state rather than federal law, an issue we left open in Kaplan v. OTS, 104 F.3d 417, 421 n.2 (D.C.Cir.1997); see also Atherton v. FDIC, 519 U.S. 213, 217-26, 117 S.Ct. 666, 136 L.Ed.2d 656 (1997), as we do again today: the evidence is enough to show his participation in unsafe or unsound practices.

In Kaplan we suggested that an "unsafe or unsound practice" was one that posed a "reasonably foreseeable" "undue risk to the institution." 104 F.3d at 421. Other courts seem to have agreed, using slightly different language. The Third Circuit in In re Seidman, 37 F.3d 911 (3d Cir.1994), for example, said that an "imprudent act ... pos[ing] an abnormal risk to the financial stability of the banking institution" would qualify. Id. at 928. We trust that "undue" risks are abnormal in the banking industry, so we see no difference there. Plunging ahead with such a risk where its character is "reasonably foreseeable" surely constitutes the imprudence of which the Third Circuit speaks.

The acts attributable to Landry meet both parts of the test. The ALJ's and the Board's findings leave no doubt as to their imprudence. After a thorough review of the transactions we summarized above, the Board correctly concluded: "The list of misguided and aborted projects and relationships that management entered into with minimal information and virtually no expertise is shocking." That these activities exposed the Bank to abnormal risk is also unassailable. Conduct attributable to Landry included substantial involvement in at least one large loan to an uncreditworthy out-of-territory borrower, long-term contracts with consultants whose fees were "proportionately greater than the services rendered," and the use of Bank funds for travel and related expenses in pursuit of breathtakingly irresponsible schemes. In the Bank's weakened condition, these expenditures created an undue and abnormal risk of insolvency. As the FDIC Board found:

[R]ather than preserve the Bank's few remaining assets, Landry chose to dissipate them in furtherance of his personal takeover of the Bank.

... [Landry] failed to disclose that Bank funds were being spent in furtherance of Pangaea and IAIS [a partnership intended to be used for the immigration law scheme]. He failed to disclose the contracts and certain uncreditworthy loans to which he or Jenson had committed the Bank, or the fee-splitting arrangements, which benefited him and Pangaea to the Bank's detriment.

Order at 26, J.A. at 243.

Landry argues that the continuing profitability of the Bank during the relevant period forecloses a finding of undue risk, but in so arguing he misconstrues the concept of risk, which is independent of the outcome in a particular case. Just as a loss, without more, does not prove that an act posed an abnormal risk, see Johnson v. OTS, 81 F.3d 195, 204 (D.C.Cir.1996), a profit does not establish its absence.

[1139] Effects. The Board found that Landry's misdeeds had the forbidden effects, see Order at 29-30, J.A. at 246-47, because they caused both financial loss to the Bank, see 18 U.S.C. § 1818(e)(1)(B)(i), and personal financial gain for Landry, see id. § 1818(e)(1)(B)(iii). The losses consisted of $278,000 in expenses paid by the Bank in promoting Pangaea, and $174,900 in loan write-offs. Order at 29, J.A. at 246. (Although relatively small in relation to large-scale banking transactions, these expenses constitute over 12% of the amount ultimately used to recapitalize the bank.) Landry argues that none of the loans that yielded losses are properly attributed to him, but his method is simply to show that most of the misconduct at issue consisted of actions more directly attributable to his co-incorporators. Section 1818(e) authorizes punishment for actions taken "directly or indirectly." So long as the misconduct at issue meets the stringent preconditions for a removal order it doesn't matter that Landry engaged in many of the proscribed acts only indirectly, though knowingly, and certainly not that others may have been more guilty.

Landry also argues that his expenses cannot be considered losses because they were approved by the appropriate Bank officers and the Bank's shareholders. But these approvals were tainted, even assuming they could otherwise salvage the expenses. Landry's own letters show that he understood that his expenses and those of his co-incorporators were incurred on behalf of Pangaea to the detriment of the Bank, without the shareholders' having understood the fact.

Culpability. The Board found that Landry's misconduct doubly satisfied the culpability prong because it involved both personal dishonesty, see 12 U.S.C. § 1818(e)(1)(C)(i), and willful or continuing disregard for the safety or soundness of the Bank, see id. § 1818(e)(1)(C)(ii). The courts of appeals that have examined the question are in agreement that both standards of culpability require some showing of scienter. See Kim v. OTS, 40 F.3d 1050, 1054-55 (9th Cir.1994) (collecting cases). We have no trouble upholding the finding of personal dishonesty. In his letters and deposition testimony Landry repeatedly admitted that he solicited money for Pangaea in the guise of seeking capital for the Bank. See Order at 31-32, J.A. at 248-49. Knowing participation in a scheme that used the Bank's funds for personal gain while representing the scheme as the Bank's own, above-board plan to recapitalize itself qualifies as personal dishonesty. See Greenberg v. Board of Governors of the Fed. Reserve Sys., 968 F.2d 164, 171 (2d Cir.1992) (finding that failure to disclose insider transactions provided ample support for a finding of personal dishonesty); Van Dyke v. Board of Governors of the Fed. Reserve Sys., 876 F.2d 1377, 1379 (8th Cir.1989) (accepting the Board's definition of personal dishonesty which included "deliberate deception by pretense and stealth" and "want of fairness and [straightforwardness'" (alteration in original)).

Landry offers two arguments against this finding. First, he claims that a requirement that a bank control transaction must secure approval by the bank's directors and by regulators "provide[s] the ultimate assurance of fairness that precludes a sanction against Landry," citing Kaplan, 104 F.3d at 424. In Kaplan, however, we said only that when a director cast a vote in favor of an arguably risky transaction, his anticipation of the need for board and regulatory approval afforded "reasonable assurance that an unfair transaction would not take place." Id. There the vote was completely independent of a later scheme by others to circumvent the OTS's and the S&L; board's approval processes. Id. at 422. Here, Landry and his co-incorporators' conduct, when viewed ex ante, was far from blameless. Instead, it accomplished the step missing in Kaplan by disguising wrongdoing from the regulators and the Bank's board of directors and directly misleading both.

[1140] Second, Landry argues, once again, that the Bank's approval of his expenses, and the failure of its board of directors and the FDIC to seek to remove him after fully initially examining the transactions at issue here, proves that he did not act dishonestly. But neither the independent audits commissioned by the Bank after the recapitalization, nor Landry's cooperation with the 1993 examination, eliminate his prior involvement as a co-incorporator and participant in the scheme. His later honesty, forthrightness, and integrity are to be commended, and his continued employment at the Bank shows that its management found that his role in the Pangaea scheme was outweighed by the benefits he offered the Bank. But we do not have the power to substitute our judgment—or the Bank's management's—for that of the FDIC. Once we conclude that Landry's conduct satisfies the statutory preconditions, we must uphold its decision.

Landry also argues that the FDIC reached its decision without taking account of exculpatory evidence. It is well established that the substantial evidence rule requires consideration of the evidence on both sides; evidence that is substantial viewed in isolation may become insubstantial when contradictory evidence is taken into account. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Johnson v. OTS, 81 F.3d 195, 204 (D.C.Cir.1996). But here the evidence to which Landry points is not exculpatory; it shows no more than that Landry had a lesser role than others in the individual actions taken in furtherance of the illegal scheme and that many of his actions were approved by the Bank. The FDIC Board did consider these factors, however, and its findings on all relevant facts are adequately supported by record evidence, including Landry's own statements.

Last, Landry says that the Board failed to provide adequate record citations for its factual findings. Indeed, Landry is correct that several critical findings lack record citation. Such omissions might render an agency's reasoning incomprehensible, possibly requiring a remand. See generally SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) ("If the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable."). But here the FDIC Board explicitly adopted the ALJ's findings of fact which, in turn, contained ample record citations for the factual findings that Landry disputes.

* * * * * *

For the foregoing reasons, Landry's petition for review is

Denied.

RANDOLPH, Circuit Judge, concurring in part and concurring in the judgment:

I join the court's opinion except for its disposition of Landry's claim under the Appointments Clause of the Constitution. In my view, Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), cannot be distinguished. The Administrative Law Judge who presided over Landry's case was as much an "inferior Officer" under Article II, § 2, cl. 2 of the Constitution as the special trial judge in Freytag. I nevertheless would sustain the FDIC's decision and order because Landry suffered no prejudicial error.

Rather than paraphrase the critical portion of Freytag, I will quote it in full:

Petitioners argue that a special trial judge is an "inferior Office[r]" of the United States....

The Commissioner, in contrast to petitioners, argues that a special trial judge ... acts only as an aide to the Tax Court judge responsible for deciding the case. The special trial judge, as the Commissioner characterizes his work, does no more than assist the Tax Court judge in taking the evidence and preparing the proposed findings and opinion. Thus, the Commissioner concludes, special trial judges ... are employees rather than "Officers of the United States."

[1141] "[A]ny appointee exercising significant authority pursuant to the laws of the United States is an `Officer of the United States,' and must, therefore, be appointed in the manner prescribed by § 2, cl. 2, of [Article II]." Buckley [v. Valeo, 424 U.S. 1, 126, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)]. The two courts that have addressed the issue have held that special trial judges are "inferior Officers." The Tax Court so concluded in First Western Govt. Securities, Inc. v. Commissioner, 94 T.C. 549, 557-559, 1990 WL 39357 (1990), and the Court of Appeals for the Second Circuit in Samuels, Kramer & Co. v. Commissioner, 930 F.2d 975, 985 (1991), agreed. Both courts considered the degree of authority exercised by the special trial judges to be so "significant" that it was inconsistent with the classifications of "lesser functionaries" or employees. Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-353, 51 S.Ct. 153, 75 L.Ed. 374 (1931) (United States commissioners are inferior officers). We agree with the Tax Court and the Second Circuit that a special trial judge is an "inferior Office[r]" whose appointment must conform to the Appointments Clause.

The Commissioner reasons that special trial judges may be deemed employees in subsection (b)(4) cases because they lack authority to enter a final decision. But this argument ignores the significance of the duties and discretion that special trial judges possess. The office of special trial judge is "established by Law," Art. II, § 2, cl. 2, and the duties, salary, and means of appointment for that office are specified by statute. See Burnap v. United States, 252 U.S. 512, 516-517, 40 S.Ct. 374, 64 L.Ed. 692 (1920); United States v. Germaine, 99 U.S. 508, 511-512, 25 L.Ed. 482 (1879). These characteristics distinguish special trial judges from special masters, who are hired by Article III courts on a temporary, episodic basis, whose positions are not established by law, and whose duties and functions are not delineated in a statute. Furthermore, special trial judges perform more than ministerial tasks. They take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders. In the course of carrying out these important functions, the special trial judges exercise significant discretion.

Even if the duties of special trial judges [just described] were not as significant as we and the two courts have found them to be, our conclusion would be unchanged [because they may be assigned to conduct other types of proceedings and render independent judgments].... Special trial judges are not inferior officers for purposes of some of their duties ... but mere employees with respect to other responsibilities.

501 U.S. at 880-82, 111 S.Ct. 2631.

There are no relevant differences between the ALJ in this case and the special trial judge in Freytag. Both held offices "established by Law," Art. II, § 2, cl. 2; 501 U.S. at 881, 111 S.Ct. 2631. In both instances, "the duties, salary, and means of appointment for that office are specified by statute." Id.; see maj. op. at 1134. Both "take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders." 501 U.S. at 881-82, 111 S.Ct. 2631; Samuels, 930 F.2d at 986; see 12 C.F.R. § 308.5 (defining the ALJ's duties). "In the course of carrying out these important functions," both the special trial judge in Freytag and the ALJ in this case "exercise significant discretion." 501 U.S. at 882, 111 S.Ct. 2631.

The majority attempts to distinguish Freytag on two grounds. Neither survives close attention. First, the majority says that the Tax Court, in reviewing the special trial judge's "non-final decision" in Freytag, gave deference to factual and credibility findings pursuant to Tax Court Rule 183(c), whereas the FDIC reviewed the ALJ's decision de novo. Maj. op. at 1133. It would be odd for the constitutional [1142] status of a special trial judge to depend on an internal rule of procedure, particularly since the Tax Court had discretion to pick whatever standard of review it saw fit. See 26 U.S.C. § 7443A(c). Odd or not, the Supreme Court in Freytag decided that Tax Court Rule 183 and its deferential standard were "not relevant to our grant of certiorari"—and the Court granted the writ, so it explained, in order "to resolve the important questions the litigation raises about the Constitution's structural separation of powers." 501 U.S. at 874 n. 3, 873, 111 S.Ct. 2631.^[3] The majority's first distinction of Freytag is thus no distinction at all. The fact that an ALJ cannot render a final decision and is subject to the ultimate supervision of the FDIC shows only that the ALJ shares the common characteristic of an "inferior Officer." "[W]e think it evident that `inferior officers' are officers whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate." Edmond v. United States, 520 U.S. 651, 663, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997).

According to the majority opinion, the second difference between this case and Freytag is that here the ALJ can never render final decisions of the FDIC, whereas special trial judges could, in cases other than the sort involved in Freytag, render a final decision of the Tax Court. See maj. op. at 1133, 1134. It is true that the Supreme Court relied on this consideration; the last paragraph of the opinion quoted above indicates as much. What the majority neglects to mention is that the Court clearly designated this as an alternative holding. The Court introduced its alternative holding thus: "Even if the duties of special trial judges [just described] were not as significant as we and the two courts have found them to be, our conclusion would be unchanged." 501 U.S. at 882, 111 S.Ct. 2631 (italics added). What "conclusion" did the Court have in mind? The conclusion it had reached in the preceding paragraphs—namely, that although special trial judges may not render final decisions, they are nevertheless inferior officers of the United States within the meaning of Article II, § 2, cl. 2. The same conclusion, the same holding, had also been rendered in Samuels, Kramer & Co. v. Commissioner, 930 F.2d 975, 986 (2d Cir.1991), a decision the Supreme Court cited and expressly approved. See 501 U.S. at 881, 111 S.Ct. 2631. There the Second Circuit held that a special trial judge performing the same advisory function as the judge in Freytag was an inferior officer; the court of appeals did not mention the fact that in other types of cases, the judge could issue final judgments.^[4]

[1143] That the ALJ in this case is an inferior officer thus follows from Freytag. It follows also from the Supreme Court's recognition that the role of the modern administrative law judge "is `functionally comparable' to that of a judge.... He may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. See [5 U.S.C.] § 556(c)." Butz v. Economou, 438 U.S. 478, 513, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) (emphasis added). Furthermore, the ALJ, in proposing findings of fact and a recommended decision, which the FDIC reviewed de novo,^[5] performed functions essentially like those of a federal magistrate assigned to conduct a hearing and to submit proposed findings and recommendations to a district judge. See 28 U.S.C. § 636(b)(1)(B). When there is an objection to a magistrate's findings and recommendations, the district judge—like the FDIC—must conduct de novo review. See 28 U.S.C. § 636(b)(1)(C). Nonetheless, it has long been settled that federal magistrates are "inferior Officers" under Article II, which is why they are appointed by "Courts of Law" under 28 U.S.C. § 631. See Rice v. Ames, 180 U.S. 371, 378, 21 S.Ct. 406, 45 L.Ed. 577 (1901); Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-54, 51 S.Ct. 153, 75 L.Ed. 374 (1931); Pacemaker Diagnostic Clinic v. Instromedix, 725 F.2d 537, 545 (9th Cir.1984) (en banc).

Because the ALJ in this case was an "inferior Officer," the next question would ordinarily be whether he was duly appointed by the President, a Court of Law, or the Head of a Department, as Article II requires. The FDIC assumed that the ALJ was an inferior officer and ruled that he was properly appointed, having been hired by the Office of Thrift Supervision and assigned to this case by the Office of Financial Institution Adjudication. See In re Landry, FDIC-95-65e, 1999 WL 440608, at *28 & n. 37 (FDIC May 25, 1999). In this court, the FDIC has given up on this claim. For reasons it did not explain, it expressly abandoned the argument that the ALJ was appointed by the head of a department. See Brief for Respondent at 48 n.32. I accept that as a waiver of the defense. It is true that "one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief might be appropriate if a violation indeed occurred." Ryder v. United States, 515 U.S. 177, 182-83, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995). But I do not take this salutary rule to mean that a court may not accept a concession from the party defending the appointment.

The remaining question then is what relief is appropriate. Given the FDIC's de novo review and the majority's thorough rejection of Landry's various claims of error,^[6] I am persuaded that he suffered no prejudice. The Administrative Procedure Act contains a harmless error rule. See 5 U.S.C. § 706; Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203, 212 (D.C.Cir.1998). The majority suggests that harmless error cannot apply because the constitutional violation is "structural" in nature. But as the majority acknowledges, in none of the "structural" cases it cites was there de novo review. See maj. op. at 1131-32. Still, the [1144] majority reasons that "[i]f the process of final de novo review could cleanse the violation of its harmful impact, then all such arrangements could escape judicial review." Id. at 1132. The majority is not correct about this. The rule in Ryder, quoted in the preceding paragraph, requires us to decide the Appointments Clause claim first, before we reach the question of relief. If we had done so correctly here, our decision would have been, in effect, a declaratory judgment that an ALJ sitting on a case such as this had to be appointed by the head of a department. Such a judgment would have been the "practical equivalent" of mandamus, as we said in Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n. 8 (D.C.Cir. 1985). If any litigant in the future wished to challenge the ALJ's status before trial, mandamus would lie. Or a litigant could refuse to present evidence before an unconstitutional officer, or refuse to comply with an ALJ's discovery orders, and bring the case here for review after the FDIC acted. See Morrison v. Olson, 487 U.S. 654, 668, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). Then there would be real prejudice. Here there is none and I therefore join in the denial of Landry's petition for judicial review.

[1] In the same proceedings, FDIC enforcement counsel also sought, and ultimately received, a prohibition order against Alton B. Lewis, a member of the Bank's Board of Directors who also did some legal work for the bank. Lewis's petition for review is pending before the United States Court of Appeals for the Fifth Circuit. See Lewis v. FDIC, No. 99-60412 (5th Cir. filed June 18, 1999).

[2] In its Order, the Board seemed to agree with Landry that the ALJs were inferior officers but found this status irrelevant because the federal banking agencies are "departments" capable of accepting Congress's delegation of appointment power. The FDIC has abandoned its apparent concession and now argues that the ALJs are not inferior officers. Because we agree that the ALJs in question are not inferior officers we need not decide whether any of the federal banking agencies are in fact "departments" for purposes of the Appointments Clause. Moreover, because the issue before us does not depend on the FDIC's interpretation of the statute or exercise of its discretion, there is no problem under SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947).

[3] There was doubt, despite this court's decision in Stone v. Commissioner, 865 F.2d 342, 344-47 (D.C.Cir.1989), whether the Tax Court had authority to provide by rule that it would give deference to special trial judge decisions rendered after an assignment pursuant to 26 U.S.C. § 7443A(b)(4). The Tax Court derived its rulemaking authority from § 7443A(c), but on its face that provision applied only to assignments under (b)(1) through (b)(3). Hence, the petitioners in Freytag argued that "Congress did not intend for Tax Court supervision of special trial judge findings and opinions in (b)(4) cases to be appellate in nature." Brief for Petitioners, 1991 WL 521270, at *22, Freytag v. Commissioner, 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (No. 90-762). The Supreme Court avoided deciding the issue by deeming Rule 183 irrelevant to its disposition.

[4] The Second Circuit reached this conclusion for the same reasons given in the third full paragraph of Freytag quoted in the text:

The special trial judges are more than mere aids to the judges of the Tax Court. They take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders. Contrary to the contentions of the Commissioner, the degree of authority exercised by special trial judges is "significant." See Buckley [v. Valeo, 424 U.S. 1, 126, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)]. They exercise a great deal of discretion and perform important functions, characteristics that we find to be inconsistent with the classifications of "lesser functionary" or mere employee. Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344, 352, 51 S.Ct. 153, 75 L.Ed. 374 (1931) (United States commissioners are inferior officers).

930 F.2d at 986.

[5] De novo review does not mean that the ALJ's recommended decisions are without influence. In this case the FDIC "affirm[ed] the recommendation of the ALJ and adopt[ed] his Recommended Decision, Findings of Fact and Conclusions of Law, as discussed herein." In re Landry, FDIC-95-65e, 1999 WL 440608, at *4 (FDIC May 25, 1999).

[6] On some points, the FDIC supplied different rationales to reach the same conclusions as the ALJ and on other matters the FDIC reached different conclusions. See, e.g., In re Landry, 1999 WL 440608, at *33 (ordering release of certain documents withheld by the ALJ under the due process privilege). In the end, the conclusive evidence came from Landry himself. See, e.g., id. at *13-14 (reproducing portions of Landry's resignation letter to the bank).

Supreme Court of the United States
Alexia MORRISON, Independent Counsel, Appel-lant,
v.
Theodore B. OLSON, Edward C. Schmults and Carol E. Dinkins.

No. 87-1279.
Argued April 26, 1988.
Decided June 29, 1988.

**2599 Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the conven-ience of the reader. See United States v. De-troit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

*654 This case presents the question of the con-stitutionality of the independent counsel provisions of the Ethics in Government Act of 1978 (Act). It arose when the House Judiciary Committee began an inves-tigation into the Justice Department's role in a con-troversy between the House and the Environmental Protection Agency (EPA) with regard to the Agency's limited production of certain documents that had been subpoenaed during an earlier House investiga-tion. The Judiciary Committee's Report suggested that an official of the Attorney General's Office (ap-pellee Olson) had given false testimony during the earlier EPA investigation, and that two other officials of that Office (appellees Schmults and Dinkins) had obstructed the EPA investigation by wrongfully withholding certain documents. A copy of the report was forwarded to the Attorney General with a re-quest, pursuant to the Act, that he seek appointment of an independent counsel to investigate the allega-tions against appellees. Ultimately, pursuant to the Act's provisions, the Special Division (a special court created by the Act) appointed appellant as independ-ent counsel with respect to Olson only, and gave her jurisdiction to investigate whether Olson's testimony, or any other matter related thereto, violated federal law, and to prosecute any violations. When a dispute arose between independent counsel and the Attorney General, who refused to furnish as “related matters” the Judiciary Committee's allegations against Schmults and Dinkins, the Special Division ruled that its grant of jurisdiction to counsel was broad enough to permit inquiry into whether Olson had conspired with others, including Schmults and Dinkins, to ob-struct the EPA investigation. Appellant then caused a grand jury to issue subpoenas on appellees, who moved in Federal District Court to quash the subpoe-nas, claiming that the Act's independent counsel pro-visions were unconstitutional and that appellant ac-cordingly had no authority to proceed. The court up-held the Act's constitutionality, denied the motions, and later ordered that appellees be held in contempt for continuing to refuse to comply with the subpoe-nas. The Court of Appeals reversed, holding that the Act violated the Appointments Clause of the Consti-tution, Art. II, § 2, cl. 2; the limitations *655 OF **2600 articLE III; and the principle of separation of powers by interfering with the President's authority under Article II.

Held:

1. There is no merit to appellant's contention-based on Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979, which limited the issues that may be raised by a person who has been held in con-tempt for failure to comply with a grand jury sub-poena-that the constitutional issues addressed by the Court of Appeals cannot be raised on this appeal from the District Court's contempt judgment. The Court of Appeals ruled that, because appellant had failed to object to the District Court's consideration of the merits of appellees' constitutional claims, she had waived her opportunity to contend on appeal that Blair barred review of those claims. Appellant's con-tention is not “jurisdictional” in the sense that it can-not be waived by failure to raise it at the proper time and place. Nor is it the sort of claim which would defeat jurisdiction in the District Court by showing that an Article III “Case or Controversy” is lacking. Pp. 2607-2608.

2. It does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division. Pp. 2608-2611.

(a) Appellant is an “inferior” officer for purposes of the Clause, which-after providing for the appoint-ment of certain federal officials (“principal” officers) by the President with the Senate's advice and con-sent-states that “the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Although appellant may not be “subordinate” to the Attorney General (and the President) insofar as, under the Act, she pos-sesses a degree of independent discretion to exercise the powers delegated to her, the fact that the Act authorizes her removal by the Attorney General indi-cates that she is to some degree “inferior” in rank and authority. Moreover, appellant is empowered by the Act to perform only certain, limited duties, restricted primarily to investigation and, if appropriate, prose-cution for certain federal crimes. In addition, appel-lant's office is limited in jurisdiction to that which has been granted by the Special Division pursuant to a request by the Attorney General. Also, appellant's office is “temporary” in the sense that an independent counsel is appointed essentially to accomplish a sin-gle task, and when that task is over the office is ter-minated, either by counsel herself or by action of the Special Division. Pp. 2608-2609.

(b) There is no merit to appellees' argument that, even if appellant is an “inferior” officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch-that *656 is, to make “interbranch appointments.” The Clause's language as to “inferior” officers admits of no limitation on interbranch appointments, but instead seems clearly to give Congress significant discretion to determine whether it is “proper” to vest the appointment of, for example, executive officials in the “courts of Law.” The Clause's history provides no support for appellees' position. Moreover, Con-gress was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers, and the most logical place to put the ap-pointing authority was in the Judicial Branch. In light of the Act's provision making the judges of the Spe-cial Division ineligible to participate in any matters relating to an independent counsel they have ap-pointed, appointment of independent counsels by that court does not run afoul of the constitutional limita-tion on “incongruous” interbranch appointments. Pp. 2609-2611.

3. The powers vested in the Special Division do not violate Article III, under which executive or ad-ministrative duties of a nonjudicial nature may not be imposed on **2601 judges holding office under Article III. Pp. 2611-2616.

(a) There can be no Article III objection to the Special Division's exercise of the power, under the Act, to appoint independent counsel, since the power itself derives from the Appointments Clause, a source of authority for judicial action that is independent of Article III. Moreover, the Division's Appointments Clause powers encompass the power to define the independent counsel's jurisdiction. When, as here, Congress creates a temporary “office,” the nature and duties of which will by necessity vary with the fac-tual circumstances giving rise to the need for an ap-pointment in the first place, it may vest the power to define the office's scope in the court as an incident to the appointment of the officer pursuant to the Ap-pointments Clause. However, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attor-ney General's request for the appointment of inde-pendent counsel in the particular case. Pp. 2612-2613.

(b) Article III does not absolutely prevent Con-gress from vesting certain miscellaneous powers in the Special Division under the Act. One purpose of the broad prohibition upon the courts' exercise of executive or administrative duties of a nonjudicial nature is to maintain the separation between the Judi-ciary and the other branches of the Federal Govern-ment by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches. Here, the Division's miscellaneous powers-such as the passive powers to “receive” (but not to act on or specifically approve) various reports from independent counsel or the Attorney General-do not encroach upon the Executive Branch's authority. The Act *657 simply does not give the Division power to “supervise” the independent counsel in the exercise of counsel's investigative or prosecutorial authority. And, the functions that the Division is empowered to perform are not inherently “Executive,” but are di-rectly analogous to functions that federal judges per-form in other contexts. P. 2613.

(c) The Special Division's power to terminate an independent counsel's office when counsel's task is completed-although “administrative” to the extent that it requires the Division to monitor the progress of counsel's proceedings and to decide whether coun-sel's job is “completed”-is not such a significant judi-cial encroachment upon executive power or upon independent counsel's prosecutorial discretion as to require that the Act be invalidated as inconsistent with Article III. The Act's termination provisions do not give the Division anything approaching the power to remove the counsel while an investigation or court proceeding is still underway-this power is vested solely in the Attorney General. Pp. 2614-2615.

(d) Nor does the Special Division's exercise of the various powers specifically granted to it pose any threat to the impartial and independent federal adju-dication of claims within the judicial power of the United States. The Act gives the Division itself no power to review any of the independent counsel's actions or any of the Attorney General's actions with regard to the counsel. Accordingly, there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court. Moreover, the Act prevents the Division's members from participat-ing in “any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless of whether such independ-ent counsel is still serving in that office.” Pp. 2615-2616.

4. The Act does not violate separation of powers principles by impermissibly interfering with the func-tions of the Executive Branch. Pp. 2616-2622.

(a) The Act's provision restricting the Attorney General's power to remove the independent counsel to only those instances **2602 in which he can show “good cause,” taken by itself, does not impermissibly interfere with the President's exercise of his constitu-tionally appointed functions. Here, Congress has not attempted to gain a role in the removal of executive officials other than its established powers of im-peachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch. Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583, and Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, distinguished. The determination of whether the Constitution allows Congress to impose a “good cause”-type restriction on the President's power to remove an official does not turn on whether or not that official is classified as “purely executive.” The *658 analysis contained in this Court's removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President's exercise of the “executive power” and his constitu-tionally appointed duty to “take care that the laws be faithfully executed” under Article II. Cf. Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611; Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377. Here, the Act's imposition of a “good cause” standard for re-moval by itself does not unduly trammel on executive authority. The congressional determination to limit the Attorney General's removal power was essential, in Congress' view, to establish the necessary inde-pendence of the office of independent counsel. Pp. 2616-2620.

(b) The Act, taken as a whole, does not violate the principle of separation of powers by unduly inter-fering with the Executive Branch's role. This case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. Other than that, Congress' role under the Act is limited to receiving reports or other informa-tion and to oversight of the independent counsel's activities, functions that have been recognized gener-ally as being incidental to the legislative function of Congress. Similarly, the Act does not work any judi-cial usurpation of properly executive functions. Nor does the Act impermissibly undermine the powers of the Executive Branch, or disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitu-tionally assigned functions. Even though counsel is to some degree “independent” and free from Executive Branch supervision to a greater extent than other fed-eral prosecutors, the Act gives the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his consti-tutionally assigned duties. Pp. 2620-2622.

267 U.S.App.D.C. 178, 838 F.2d 476 (1988), reversed.

REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. ---. KENNEDY, J., took no part in the considera-tion or decision of the case.
Alexia Morrison, appellant, argued the cause pro se. With her on the briefs were Earl C. Dudley, Jr., and Louis *659 F. Claiborne. Michael Davidson argued the cause for the United States Senate as amicus cu-riae in support of appellant. With him on the brief were Ken U. Benjamin, Jr., and Morgan J. Frankel.

Thomas S. Martin argued the cause for appellees. With him on the brief for appellee Olson were An-thony C. Epstein, David E. Zerhusen, David W. De-Bruin, and Carl S. Nadler. Brendan V. Sullivan, Jr., Barry S. Simon, Jacob A. Stein, and Robert F. Muse filed a brief for appellees Schmults et al. Solicitor General Fried argued the cause for the United States as amicus curiae in support of appellees. With him on the brief were Assistant Attorney General Bolton, Deputy Solicitors General Cohen and Bryson, Deputy Assistant Attorneys General Spears and Cynkar, Ed-win S. Kneedler, Richard G. Taranto, Robert E. Kopp, and Douglas Letter.*

* Briefs of amici curiae urging reversal were filed for the American Bar Association by Robert MacCrate and Irvin B. Nathan; for Common Cause by Archibald Cox, Donald J. Simon, Paul A. Freund, and Philip B. Heymann; for the Center for Constitu-tional Rights by Morton Stavis, Michael Ratner, Frank Askin, and Daniel Pollitt; for Public Citizen by Eric R. Glitzenstein and Alan B. Morrison; for Bur-ton D. Linne et al. by Edwin Vieira, Jr.; and for Law-rence E. Walsh by Laurence H. Tribe, Paul L. Friedman, and Guy Miller Struve.

Briefs of amici curiae urging affirmance were filed for Michael K. Deaver by Herbert J. Miller, Jr., and Randall J. Turk; and for Edward H. Levi et al. by David A. Strauss.

Briefs of amici curiae were filed for the Speaker and Leadership Group of the House of Representatives by Steven R. Ross, Charles Tiefer, and Michael L. Murray; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Michael H. Gottesman, and Laurence Gold; and for Whitney North Seymour, Jr., by Mr. Seymour, pro se, George F. Hritz, Benjamin R. Civiletti, and Ramsey Clark.

**2603 Chief Justice REHNQUIST delivered the opinion of the Court.
This case presents us with a challenge to the in-dependent counsel provisions of the Ethics in Gov-ernment Act of 1978, 28 U.S.C. §§ 49, 591 et seq. (1982 ed., Supp. V). We hold *660 today that these provisions of the Act do not violate the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, or the limitations of Article III, nor do they impermissibly interfere with the President's authority under Article II in violation of the constitutional principle of sepa-ration of powers.

I
Briefly stated, Title VI of the Ethics in Govern-ment Act (Title VI or the Act), 28 U.S.C. §§ 591-599 (1982 ed., Supp. V),FN1 allows for the appointment of an “independent counsel” to investigate and, if ap-propriate, prosecute certain high-ranking Government officials for violations of federal criminal laws.FN2 The Act requires the Attorney General, upon receipt of information that he determines is “sufficient to constitute grounds to investigate whether any person [covered by the Act] may have violated any Federal criminal law,” to conduct a preliminary investigation of the matter. When the Attorney*661 General has completed this investigation, or 90 days has elapsed, he is required to report to a special court (the Special Division) created by the Act “for the purpose of ap-pointing independent counsels.” 28 U.S.C. § 49 (1982 ed., Supp. V).FN3 If the Attorney General de-termines that “there are no reasonable grounds to believe that further investigation is warranted,” then he must notify the Special Division of this result. In such a case, “the division of the court shall have no power to appoint an independent counsel.” § 592(b)(1). If, however, the Attorney General has de-termined that there are “reasonable grounds to be-lieve that further investigation or prosecution is war-ranted,” then he “shall apply to the division of the court for the appointment of an independent coun-sel.” FN4 The Attorney General's application to the court “shall contain sufficient**2604 information to assist the [court] in selecting an independent counsel and in defining that independent counsel's prosecuto-rial jurisdiction.” § 592(d). Upon receiving this appli-cation, the Special Division “shall appoint an appro-priate independent counsel and shall define that inde-pendent counsel's prosecutorial jurisdiction.” § 593(b).FN5

FN1. The Act was first enacted by Congress in 1978, Pub.L. 95-521, 92 Stat. 1867, and has been twice reenacted, with amendments. See Pub.L. 97-409, 96 Stat. 2039; Pub.L. 100-191, 101 Stat. 1293. The current version of the statute states that, with certain excep-tions, it shall “cease to be effective five years after the date of the enactment of the Independent Counsel Reauthorization Act of 1987.” 28 U.S.C. § 599 (1982 ed., Supp. V).

FN2. Under 28 U.S.C. § 591(a) (1982 ed., Supp. V), the statute applies to violations of “any Federal criminal law other than a viola-tion classified as a Class B or C misde-meanor or an infraction.” See also § 591(c) (“any Federal criminal law other than a vio-lation classified as a Class B or C misde-meanor or an infraction”). Section 591(b) sets forth the individuals who may be the target of an investigation by the Attorney General, including the President and Vice President, Cabinet level officials, certain high-ranking officials in the Executive Of-fice of the President and the Justice Depart-ment, the Director and Deputy Director of Central Intelligence, the Commissioner of Internal Revenue, and certain officials in-volved in the President's national political campaign. Pursuant to § 591(c), the Attor-ney General may also conduct a preliminary investigation of persons not named in § 591(b) if an investigation by the Attorney General or other Department of Justice offi-cial “may result in a personal, financial, or political conflict of interest.”

FN3. The Special Division is a division of the United States Court of Appeals for the District of Columbia Circuit. 28 U.S.C. § 49 (1982 ed., Supp. V). The court consists of three circuit court judges or justices ap-pointed by the Chief Justice of the United States. One of the judges must be a judge of the United States Court of Appeals for the District of Columbia Circuit, and no two of the judges may be named to the Special Di-vision from a particular court. The judges are appointed for 2-year terms, with any va-cancy being filled only for the remainder of the 2-year period. Ibid.

FN4. The Act also requires the Attorney General to apply for the appointment of an independent counsel if 90 days elapse from the receipt of the information triggering the preliminary investigation without a determi-nation by the Attorney General that there are no reasonable grounds to believe that further investigation or prosecution is warranted. § 592(c)(1). Pursuant to § 592(f), the Attorney General's decision to apply to the Special Division for the appointment of an inde-pendent counsel is not reviewable “in any court.”

FN5. Upon request of the Attorney General, in lieu of appointing an independent counsel the Special Division may “expand the prose-cutorial jurisdiction of an independent coun-sel.” § 593(c). Section 593 also authorizes the Special Division to fill vacancies arising because of the death, resignation, or removal of an independent counsel. § 593(e). The court, in addition, is empowered to grant limited extensions of time for the Attorney General's preliminary investigation, § 592(a)(3), and to award attorney's fees to unindicted individuals who were the subject of an investigation by an independent coun-sel, § 593(f) (as amended by Pub.L. 101-191, 101 Stat. 1293).

*662 With respect to all matters within the in-dependent counsel's jurisdiction, the Act grants the counsel “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attor-ney General, and any other officer or employee of the Department of Justice.” § 594(a).FN6 The functions of the independent counsel include conducting grand jury proceedings and other investigations, participat-ing in civil and criminal court proceedings and litiga-tion, and appealing any decision in any case in which the counsel participates in an official capacity. §§ 594(a)(1)-(3). Under § 594(a)(9), the counsel's pow-ers include “initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States.” The counsel may appoint employees, § 594(c), may request and obtain assistance from the Department of Justice, § 594(d), and may accept re-ferral of matters from the Attorney General if the matter falls within the counsel's jurisdiction as de-fined by the Special Division, § 594(e). The Act also states that an independent counsel “shall, except where not possible, comply with the written or other established policies of the Department of Justice re-specting enforcement of the criminal laws.” § 594(f). In addition, whenever a matter has been referred to an independent counsel under the Act, the Attorney General*663 and the Justice Department are required to suspend all investigations and proceedings regard-ing the matter. § 597(a). An independent counsel has “full authority to dismiss matters within [his or her] prosecutorial jurisdiction without conducting an in-vestigation or at any subsequent time before prosecu-tion, if to do so would be consistent” with Depart-ment of Justice policy. § 594(g).FN7

FN6. The Attorney General, however, re-tains “direction or control as to those matters that specifically require the Attorney Gen-eral's personal action under section 2516 of title 18.” § 594(a).

FN7. The 1987 amendments to the Act spec-ify that the Department of Justice “shall pay all costs relating to the establishment and operation of any office of independent coun-sel.” The Attorney General must report to Congress regarding the amount expended on investigations and prosecutions by inde-pendent counsel. § 594(d)(2). In addition, the independent counsel must also file a re-port of major expenses with the Special Di-vision every six months. § 594(h)(1)(A).

Two statutory provisions govern the length of an independent counsel's tenure in office. The first de-fines the procedure for removing an independent counsel. Section 596(a)(1) provides:

“An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the per-formance of such independent counsel's duties.”

If an independent counsel is removed pursuant to this section, the Attorney General is required to sub-mit a report to both the Special Division and the Ju-diciary Committees of the Senate and the House “specifying**2605 the facts found and the ultimate grounds for such removal.” § 596(a)(2). Under the current version of the Act, an independent counsel can obtain judicial review of the Attorney General's action by filing a civil action in the United States District Court for the District of Columbia. Members of the Special Division “may not hear or determine any such civil action or any appeal of a decision*664 in any such civil action.” The reviewing court is authorized to grant reinstatement or “other appropri-ate relief.” § 596(a)(3).FN8

FN8. Under the Act as originally enacted, an independent counsel who was removed could obtain judicial review of the Attorney General's decision in a civil action com-menced before the Special Division. If the removal was “based on error of law or fact,” the court could order “reinstatement or other appropriate relief.” 28 U.S.C. § 596(a)(3).

The other provision governing the tenure of the independent counsel defines the procedures for “ter-minating” the counsel's office. Under § 596(b)(1), the office of an independent counsel terminates when he or she notifies the Attorney General that he or she has completed or substantially completed any investiga-tions or prosecutions undertaken pursuant to the Act. In addition, the Special Division, acting either on its own or on the suggestion of the Attorney General, may terminate the office of an independent counsel at any time if it finds that “the investigation of all mat-ters within the prosecutorial jurisdiction of such in-dependent counsel ... have been completed or so sub-stantially completed that it would be appropriate for the Department of Justice to complete such investiga-tions and prosecutions.” § 596(b)(2). FN9

FN9. Sections 596(b)(1)(B) and 596(b)(2) also require that the independent counsel have filed a final report with the Special Di-vision in compliance with § 594(h)(1)(B).

Finally, the Act provides for congressional over-sight of the activities of independent counsel. An independent counsel may from time to time send Congress statements or reports on his or her activi-ties. § 595(a)(2). The “appropriate committees of the Congress” are given oversight jurisdiction in regard to the official conduct of an independent counsel, and the counsel is required by the Act to cooperate with Congress in the exercise of this jurisdiction. § 595(a)(1). The counsel is required to inform the House of Representatives of *665 “substantial and credible information which [the counsel] receives ... that may constitute grounds for an impeachment.” § 595(c). In addition, the Act gives certain congres-sional committee members the power to “request in writing that the Attorney General apply for the ap-pointment of an independent counsel.” § 592(g)(1). The Attorney General is required to respond to this request within a specified time but is not required to accede to the request. § 592(g)(2).

The proceedings in this case provide an example of how the Act works in practice. In 1982, two Sub-committees of the House of Representatives issued subpoenas directing the Environmental Protection Agency (EPA) to produce certain documents relating to the efforts of the EPA and the Land and Natural Resources Division of the Justice Department to en-force the “Superfund Law.” FN10 At that time, appel-lee Olson was the Assistant Attorney General for the Office of Legal Counsel (OLC), appellee Schmults was Deputy Attorney General, and appellee Dinkins was the Assistant Attorney General for the Land and Natural Resources Division. Acting on the advice of the Justice Department, the President ordered the Administrator of EPA to invoke executive privilege to withhold certain of the documents on the ground that they contained “enforcement sensitive informa-tion.” The Administrator obeyed this order and with-held the documents. In response, the House voted to hold the Administrator in contempt, after which the Administrator and the United States together filed a lawsuit against the House. The **2606 conflict abated in March 1983, when the administration agreed to give the House Subcommittees limited ac-cess to the documents.

FN10. Comprehensive Environmental Re-sponse, Compensation, and Liability Act of 1980, Pub.L. 96-510, 94 Stat. 2767, 42 U.S.C. § 9601 et seq.

The following year, the House Judiciary Com-mittee began an investigation into the Justice De-partment's role in the controversy over the EPA documents. During this investigation, appellee Olson testified before a House Subcommittee *666 on March 10, 1983. Both before and after that testimony, the Department complied with several Committee requests to produce certain documents. Other docu-ments were at first withheld, although these docu-ments were eventually disclosed by the Department after the Committee learned of their existence. In 1985, the majority members of the Judiciary Com-mittee published a lengthy report on the Committee's investigation. Report on Investigation of the Role of the Department of Justice in the Withholding of En-vironmental Protection Agency Documents from Congress in 1982-83, H.R.Rep. No. 99-435 (1985). The report not only criticized various officials in the Department of Justice for their role in the EPA ex-ecutive privilege dispute, but it also suggested that appellee Olson had given false and misleading testi-mony to the Subcommittee on March 10, 1983, and that appellees Schmults and Dinkins had wrongfully withheld certain documents from the Committee, thus obstructing the Committee's investigation. The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney General with a request, pursuant to 28 U.S.C. § 592(c), that he seek the appointment of an independent counsel to inves-tigate the allegations against Olson, Schmults, and Dinkins.

The Attorney General directed the Public Integ-rity Section of the Criminal Division to conduct a preliminary investigation. The Section's report con-cluded that the appointment of an independent coun-sel was warranted to investigate the Committee's al-legations with respect to all three appellees. After consulting with other Department officials, however, the Attorney General chose to apply to the Special Division for the appointment of an independent coun-sel solely with respect to appellee Olson.FN11 The Attorney General accordingly *667 requested ap-pointment of an independent counsel to investigate whether Olson's March 10, 1983, testimony “regard-ing the completeness of [OLC's] response to the Judi-ciary Committee's request for OLC documents, and regarding his knowledge of EPA's willingness to turn over certain disputed documents to Congress, vio-lated 18 U.S.C. § 1505, § 1001, or any other provi-sion of federal criminal law.” Attorney General Re-port, at 2-3. The Attorney General also requested that the independent counsel have authority to investigate “any other matter related to that allegation.” Id., at 11.

FN11. The Attorney General concluded that appellees Schmults and Dinkins lacked the requisite “criminal intent” to obstruct the Committee's investigation. See Report of Attorney General Pursuant to 28 U.S.C. § 592(c)(1) Regarding Allegations Against Department of Justice Officials in United States House Judiciary Committee Report 22, 45 (Apr. 10, 1986), filed in No. 86-1 (CADC) (Attorney General Report).

On April 23, 1986, the Special Division ap-pointed James C. McKay as independent counsel to investigate “whether the testimony of ... Olson and his revision of such testimony on March 10, 1983, violated either 18 U.S.C. § 1505 or § 1001, or any other provision of federal law.” The court also or-dered that the independent counsel

“shall have jurisdiction to investigate any other al-legation of evidence of violation of any Federal criminal law by Theodore Olson developed during investigations, by the Independent Counsel, re-ferred to above, and connected with or arising out of that investigation, and Independent Counsel shall have jurisdiction to prosecute for any such violation.” Order, Div. No. 86-1 (CADC Special Division, April 23, 1986).

McKay later resigned as independent counsel, and on May 29, 1986, the Division appointed**2607 appellant Morrison as his replacement, with the same jurisdiction.

In January 1987, appellant asked the Attorney General pursuant to § 594(e) to refer to her as “re-lated matters” the Committee's allegations against appellees Schmults and Dinkins. The Attorney Gen-eral refused to refer the matters, concluding that his decision not to request the appointment of *668 an independent counsel in regard to those matters was final under § 592(b)(1). Appellant then asked the Special Division to order that the matters be referred to her under § 594(e). On April 2, 1987, the Division ruled that the Attorney General's decision not to seek appointment of an independent counsel with respect to Schmults and Dinkins was final and unreviewable under § 592(b)(1), and that therefore the court had no authority to make the requested referral. In re Olson, 260 U.S.App.D.C. 168, 818 F.2d 34. The court ruled, however, that its original grant of jurisdiction to ap-pellant was broad enough to permit inquiry into whether Olson may have conspired with others, in-cluding Schmults and Dinkins, to obstruct the Com-mittee's investigation. Id., at 181-182, 818 F.2d, at 47-48.

Following this ruling, in May and June 1987, ap-pellant caused a grand jury to issue and serve sub-poenas ad testificandum and duces tecum on appel-lees. All three appellees moved to quash the subpoe-nas, claiming, among other things, that the independ-ent counsel provisions of the Act were unconstitu-tional and that appellant accordingly had no authority to proceed. On July 20, 1987, the District Court up-held the constitutionality of the Act and denied the motions to quash. In re Sealed Case, 665 F.Supp. 56 (DC). The court subsequently ordered that appellees be held in contempt pursuant to 28 U.S.C. § 1826(a) for continuing to refuse to comply with the subpoe-nas. See App. to Juris. Statement 140a, 143a, 146a. The court stayed the effect of its contempt orders pending expedited appeal.

A divided Court of Appeals reversed. In re Sealed Case, 267 U.S.App.D.C. 178, 838 F.2d 476 (1988). The majority ruled first that an independent counsel is not an “inferior Officer” of the United States for purposes of the Appointments Clause. Ac-cordingly, the court found the Act invalid because it does not provide for the independent counsel to be nominated by the President and confirmed by the Senate, as the Clause requires for “principal” officers. The court then *669 went on to consider several al-ternative grounds for its conclusion that the statute was unconstitutional. In the majority's view, the Act also violates the Appointments Clause insofar as it empowers a court of law to appoint an “inferior” of-ficer who performs core executive functions; the Act's delegation of various powers to the Special Di-vision violates the limitations of Article III; the Act's restrictions on the Attorney General's power to re-move an independent counsel violate the separation of powers; and finally, the Act interferes with the Executive Branch's prerogative to “take care that the Laws be faithfully executed,” Art. II, § 3. The dis-senting judge was of the view that the Act was con-stitutional. 267 U.S.App.D.C., at 238, 838 F.2d, at 536. Appellant then sought review by this Court, and we noted probable jurisdiction. 484 U.S. 1058, 108 S.Ct. 1010, 98 L.Ed.2d 976 (1988). We now reverse.

II
[1] Before we get to the merits, we first must deal with appellant's contention that the constitutional issues addressed by the Court of Appeals cannot be reviewed on this appeal from the District Court's con-tempt judgment. Appellant relies on Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919), in which this Court limited rather sharply the issues that may be raised by an individual who has been subpoenaed as a grand jury witness and has been held in contempt for failure to comply with the subpoena. On the facts of this case, however, we find it unnecessary**2608 to consider whether Blair has since been narrowed by our more recent decisions, as appellees contend and the Court of Appeals found in another related case, In re Sealed Case, 264 U.S.App.D.C. 125, 827 F.2d 776 (1987). Appellant herself admits that she failed to object to the District Court's consideration of the merits of appellees' con-stitutional claims, and as a result, the Court of Ap-peals ruled that she had waived her opportunity to contend on appeal that review of those claims was barred by Blair. We see no reason why the Court of Appeals was not entitled to conclude *670 that the failure of appellant to object on this ground in the District Court was a sufficient reason for refusing to consider it, and we likewise decline to consider it. Appellant's contention is not “jurisdictional” in the sense that it cannot be waived by failure to raise it at the proper time and place. It is not the sort of claim which would defeat jurisdiction in the District Court by showing that an Article III “Case” or “Contro-versy” is lacking. Appellees are subject to the burden of complying with the grand jury subpoena as a result of the District Court's contempt order, there is a le-gitimate adversarial relationship between the parties, and the courts possess the power to redress or resolve the current controversy. See Bender v. Williamsport Area School District, 475 U.S. 534, 541-543, 106 S.Ct. 1326, 1331-1332, 89 L.Ed.2d 501 (1986). We therefore turn to consider the merits of appellees' constitutional claims.

III
The Appointments Clause of Article II reads as follows:

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const., Art. II, § 2, cl. 2.

The parties do not dispute that “[t]he Constitu-tion for purposes of appointment ... divides all its officers into two classes.” United States v. Germaine, 99 U.S. (9 Otto) 508, 509, 25 L.Ed. 482 (1879). As we stated in Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 688, 46 L.Ed.2d 659 (1976): “[P]rincipal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary.” The initial *671 question is, accordingly, whether appel-lant is an “inferior” or a “principal” officer.FN12 If she is the latter, as the Court of Appeals concluded, then the Act is in violation of the Appointments Clause.

FN12. It is clear that appellant is an “offi-cer” of the United States, not an “em-ployee.” See Buckley, 424 U.S., at 126, and n. 162, 96 S.Ct., at 685, and n. 162.

[2] The line between “inferior” and “principal” officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. See, e.g., 2 J. Story, Commentaries on the Constitution § 1536, pp. 397-398 (3d ed. 1858) (“In the practical course of the government there does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution, whose appointment does not necessarily require the concurrence of the sen-ate”). We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the “in-ferior officer” side of that line. Several factors lead to this conclusion.

First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be “subordinate” to the Attorney General (and the President) **2609 insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is to some degree “inferior” in rank and authority. Second, appellant is empowered by the Act to per-form only certain, limited duties. An independent counsel's role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to appellant “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice,” § 594(a), but this grant of authority does not include any authority to formu-late policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those necessary*672 to operate her office. The Act specifically provides that in policy matters appellant is to comply to the extent possible with the policies of the Department. § 594(f).

Third, appellant's office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. Finally, appellant's office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonethe-less, the office of independent counsel is “temporary” in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplish-ment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the “ideas of ten-ure, duration ... and duties” of the independent coun-sel, Germaine, supra, 9 Otto, at 511, are sufficient to establish that appellant is an “inferior” officer in the constitutional sense.

This conclusion is consistent with our few previ-ous decisions that considered the question whether a particular Government official is a “principal” or an “inferior” officer. In United States v. Eaton, 169 U.S. 331, 18 S.Ct. 374, 42 L.Ed. 767 (1898), for example, we approved Department of State regulations that allowed executive officials to appoint a “vice-consul” during the temporary absence of the consul, terming the “vice-consul” a “subordinate officer” notwith-standing the Appointment Clause's specific reference to “Consuls” as principal officers. As we stated: “Be-cause the subordinate officer is charged with the per-formance of the duty of the superior for a limited time and under special and temporary conditions he is not thereby transformed into the superior and per-manent official.” *673 Id., at 343, 18 S.Ct., at 379. In Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880), the Court found that federal “supervi-sor[s] of elections,” who were charged with various duties involving oversight of local congressional elections, see id., 10 Otto at 379-380, were inferior officers for purposes of the Clause. In Go-Bart Im-porting Co. v. United States, 282 U.S. 344, 352-353, 51 S.Ct. 153, 156-157, 75 L.Ed. 374 (1931), we held that “United States commissioners are inferior offi-cers.” Id., at 352, 51 S.Ct., at 156. These commis-sioners had various judicial and prosecutorial powers, including the power to arrest and imprison for trial, to issue warrants, and to institute prosecutions under “laws relating to the elective franchise and civil rights.” Id., at 353, n. 2, 51 S.Ct., at 156, n. 2. All of this is consistent with our reference in United States v. Nixon, 418 U.S. 683, 694, 696, 94 S.Ct. 3090, 3100, 3101, 41 L.Ed.2d 1039 (1974), to the office of Watergate Special Prosecutor-whose authority was similar to that of appellant, see id., at 694, n. 8, 94 S.Ct., at 3100, n. 8-as a “subordinate officer.”

**2610 [3] This does not, however, end our in-quiry under the Appointments Clause. Appellees ar-gue that even if appellant is an “inferior” officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Execu-tive Branch. They contend that the Clause does not contemplate congressional authorization of “inter-branch appointments,” in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause is worth repeating. It reads: “... but the Congress may by Law vest the Appointment of such inferior Offi-cers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments.” On its face, the language of this “excepting clause” admits of no limitation on interbranch appointments. Indeed, the inclusion of “as they think proper” seems clearly to give Congress significant discretion to de-termine whether it is “proper” to vest the appoint-ment of, for example, executive officials in the “courts of Law.” We recognized as much in one of our few decisions in this area, Ex parte Siebold, su-pra, where we stated:

*674 “It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and, if there were, it would be difficult in many cases to determine to which department an office properly belonged....

“But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Con-gress. And, looking at the subject in a practical light, it is perhaps better that it should rest there, than that the country should be harassed by the endless controversies to which a more specific di-rection on this subject might have given rise.” Id., 100 U.S. (10 Otto), at 397-398.

Our only decision to suggest otherwise, Ex parte Hennen, 13 Pet. 230, 10 L.Ed. 138 (1839), from which the first sentence in the above quotation from Siebold was derived, was discussed in Siebold and distinguished as “not intended to define the constitu-tional power of Congress in this regard, but rather to express the law or rule by which it should be gov-erned.” 100 U.S. (10 Otto), at 398. Outside of these two cases, there is very little, if any, express discus-sion of the propriety of interbranch appointments in our decisions, and we see no reason now to depart from the holding of Siebold that such appointments are not proscribed by the excepting clause.

We also note that the history of the Clause pro-vides no support for appellees' position. Throughout most of the process of drafting the Constitution, the Convention concentrated on the problem of who should have the authority to appoint judges. At the suggestion of James Madison, the Convention adopted a proposal that the Senate should have this authority, 1 Records of the Federal Convention of 1787, pp. 232-233 (M. Farrand ed. 1966), and several attempts to transfer the appointment power to the President were rejected.*675 See 2 id., at 42-44, 80-83. The August 6, 1787, draft of the Constitution reported by the Committee of Detail retained Senate appointment of Supreme Court Judges, provided also for Senate appointment of ambassadors, and vested in the President the authority to “appoint officers in all cases not otherwise provided for by this Constitu-tion.” Id., at 183, 185. This scheme was maintained until September 4, when the Committee of Eleven reported its suggestions to the Convention. This Committee suggested that the Constitution be amended to state that the President “shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and other public Minis-ters, Judges of the Supreme Court, and all other Offi-cers of the [United States], whose appointments are not otherwise herein provided for.” Id., at 498-499. After**2611 the addition of “Consuls” to the list, the Committee's proposal was adopted, id., at 539, and was subsequently reported to the Convention by the Committee of Style. See id., at 599. It was at this point, on September 15, that Gouverneur Morris moved to add the Excepting Clause to Art. II, § 2. Id., at 627. The one comment made on this motion was by Madison, who felt that the Clause did not go far enough in that it did not allow Congress to vest ap-pointment powers in “Superior Officers below Heads of Departments.” The first vote on Morris' motion ended in a tie. It was then put forward a second time, with the urging that “some such provision [was] too necessary, to be omitted.” This time the proposal was adopted. Id., at 627-628. As this discussion shows, there was little or no debate on the question whether the Clause empowers Congress to provide for inter-branch appointments, and there is nothing to suggest that the Framers intended to prevent Congress from having that power.

We do not mean to say that Congress' power to provide for interbranch appointments of “inferior officers” is unlimited. In addition to separation-of-powers concerns, which would arise if such provi-sions for appointment had the potential to *676 im-pair the constitutional functions assigned to one of the branches, Siebold itself suggested that Congress' decision to vest the appointment power in the courts would be improper if there was some “incongruity” between the functions normally performed by the courts and the performance of their duty to appoint. 100 U.S. (10 Otto), at 398 (“[T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void”). In this case, however, we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court. We thus disagree with the Court of Appeals' conclusion that there is an inherent incongruity about a court having the power to appoint prosecutorial officers.FN13 We have recognized that courts may appoint private attorneys to act as prose-cutor for judicial contempt judgments. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). In Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931), we approved court appointment of United States commissioners, who exercised certain limited prosecutorial powers. Id., at 353, n. 2, 51 S.Ct., at 156, n. 2. In Siebold, as well, we indicated that judicial appointment of federal marshals, who are “executive officer[s],” would not be inappropriate. Lower courts have also upheld in-terim judicial appointments of United States Attor-neys, see United States v. Solomon, 216 F.Supp. 835 (SDNY 1963), and Congress itself has vested the power to make these interim appointments in the dis-trict courts, see *67728 U.S.C. § 546(d) (1982 ed., Supp. V). FN14 Congress, of course, was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situa-tions when the Executive Branch is called upon to investigate its own high-ranking officers. If it were to remove the appointing authority from the Executive Branch, the most logical place to put it was in the Judicial Branch. In the light of **2612 the Act's pro-vision making the judges of the Special Division in-eligible to participate in any matters relating to an independent counsel they have appointed, 28 U.S.C. § 49(f) (1982 ed., Supp. V) we do not think that ap-pointment of the independent counsel by the court runs afoul of the constitutional limitation on “incon-gruous” interbranch appointments.

FN13. Indeed, in light of judicial experience with prosecutors in criminal cases, it could be said that courts are especially well quali-fied to appoint prosecutors. This is not a case in which judges are given power to ap-point an officer in an area in which they have no special knowledge or expertise, as in, for example, a statute authorizing the courts to appoint officials in the Department of Agriculture or the Federal Energy Regu-latory Commission.

FN14. We note also the longstanding judi-cial practice of appointing defense attorneys for individuals who are unable to afford rep-resentation, see 18 U.S.C. § 3006A(b) (1982 ed., Supp. V), notwithstanding the possibil-ity that the appointed attorney may appear in court before the judge who appointed him.

IV
Appellees next contend that the powers vested in the Special Division by the Act conflict with Article III of the Constitution. We have long recognized that by the express provision of Article III, the judicial power of the United States is limited to “Cases” and “Controversies.” See Muskrat v. United States, 219 U.S. 346, 356, 31 S.Ct. 250, 253, 55 L.Ed. 246 (1911). As a general rule, we have broadly stated that “executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution.” Buckley, 424 U.S., at 123, 96 S.Ct., at 684 (citing United States v. Fer-reira, 13 How. 40, 14 L.Ed. 40 (1852); Hayburn's Case, 2 Dall. 409 (1792)).FN15 The purpose*678 of this limitation is to help ensure the independence of the Judicial Branch and to prevent the Judiciary from encroaching into areas reserved for the other branches. See United States Parole Comm'n v. Ger-aghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). With this in mind, we address in turn the various duties given to the Special Division by the Act.

FN15. In several cases, the Court has indi-cated that Article III “judicial Power” does not extend to duties that are more properly performed by the Executive Branch. Hay-burn's Case, for example, involved a statute empowering federal and state courts to set pensions for disabled veterans of the Revo-lutionary War. See Act of Mar. 23, 1792, ch. 11, 1 Stat. 243. The Act “undertook to de-volve upon the Circuit Court of the United States the duty of examining proofs, of de-termining what amount of the monthly pay would be equivalent to the disability ascer-tained, and to certify the same to the Secre-tary of War.” Muskrat, 219 U.S., at 352, 31 S.Ct., at 252. The court's decision was to be reported to the Secretary of War, who had the discretion to either adopt or reject the court's findings. Ibid. This Court did not reach the constitutional issue in Hayburn's Case, but the opinions of several Circuit Courts were reported in the margins of the Court's decision in that case, and have since been taken to reflect a proper understanding of the role of the Judiciary under the Consti-tution. See, e.g., Ferreira, 13 How., at 50-51.

In Ferreira, Congress passed a statute authorizing a federal court in Florida to hear and adjudicate claims for losses for which the United States was to be held re-sponsible under the 1819 treaty with Spain that ceded Florida to the United States. Id., at 45. As in Hayburn's Case, the results of the court proceeding were to be reported to an executive official, the Secretary of the Treasury, who would make the final determination whether to pay the claims. 13 How., at 47. The Court recognized that the powers conferred on the judge by the statute were “judicial in their nature,” in that they involved “judg-ment and discretion.” Id., at 48. Nonethe-less, they were not “judicial ... in the sense in which judicial power is granted by the Constitution to the courts of the United States.” Ibid. Because the District Court's decision in Ferreira was not an exercise of Article III judicial power, the Court ruled that it had no jurisdiction to hear the appeal. Id., at 51-52.

[4] Most importantly, the Act vests in the Special Division the power to choose who will serve as inde-pendent counsel and the power to define his or her jurisdiction. § 593(b). Clearly, once it is accepted that the Appointments Clause gives Congress the power to vest the appointment of officials such as the inde-pendent counsel in the “courts of Law,” there can be no Article III objection to the Special Division's ex-ercise of that power, as the power itself derives from the Appointments Clause, a source of authority for judicial action *679 that is independent of Article III.FN16 Appellees**2613 contend, however, that the Division's Appointments Clause powers do not en-compass the power to define the independent coun-sel's jurisdiction. We disagree. In our view, Congress' power under the Clause to vest the “Appointment” of inferior officers in the courts may, in certain circum-stances, allow Congress to give the courts some dis-cretion in defining the nature and scope of the ap-pointed official's authority. Particularly when, as here, Congress creates a temporary “office” the na-ture and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest the power to define the scope of the office in the court as an incident to the appointment of the officer pursuant to the Appointments Clause. This said, we do not think that Congress may give the Division unlimited discretion to determine the independent counsel's jurisdiction. In order for the Division's definition of the counsel's jurisdiction to be truly “incidental” to its power to appoint, the jurisdiction that the court de-cides upon must be demonstrably related to the fac-tual circumstances that gave rise to the Attorney General's investigation and request for the appoint-ment of the independent counsel in the particular case.FN17

FN16. We do not think that judicial exercise of the power to appoint, per se, is in any way inconsistent as a functional matter with the courts' exercise of their Article III pow-ers. We note that courts have long partici-pated in the appointment of court officials such as United States commissioners or magistrates, see Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed.2d 374 (1931); 28 U.S.C. § 631(a), without disruption of normal judicial func-tions. And certainly the Court in Ex parte Hennen, 13 Pet. 230, 10 L.Ed. 138 (1839), deemed it entirely appropriate that a court should have the authority to appoint its own clerk.

FN17. Our conclusion that the power to de-fine the counsel's jurisdiction is incidental to the power to appoint also applies to the Di-vision's authority to expand the jurisdiction of the counsel upon request of the Attorney General under § 593(c)(2).

*680 The Act also vests in the Special Division various powers and duties in relation to the inde-pendent counsel that, because they do not involve appointing the counsel or defining his or her jurisdic-tion, cannot be said to derive from the Division's Ap-pointments Clause authority. These duties include granting extensions for the Attorney General's pre-liminary investigation, § 592(a)(3); receiving the re-port of the Attorney General at the conclusion of his preliminary investigation, §§ 592(b)(1), 593(c)(2)(B); referring matters to the counsel upon request, § 594(e) FN18; receiving reports from the counsel re-garding expenses incurred, § 594(h)(1)(A); receiving a report from the Attorney General following the removal of an independent counsel, § 596(a)(2); granting attorney's fees upon request to individuals who were investigated but not indicted by an inde-pendent counsel, § 593(f); receiving a final report from the counsel, § 594(h)(1)(B); deciding whether to release the counsel's final report to Congress or the public and determining whether any protective orders should be issued, § 594(h)(2); and terminating an independent counsel when his or her task is com-pleted, § 596(b)(2).

FN18. In our view, this provision does not empower the court to expand the original scope of the counsel's jurisdiction; that may be done only upon request of the Attorney General pursuant to § 593(c)(2). At most, § 594(e) authorizes the court simply to refer matters that are “relate [d] to the independ-ent counsel's prosecutorial jurisdiction” as already defined.

[5] Leaving aside for the moment the Division's power to terminate an independent counsel, we do not think that Article III absolutely prevents Congress from vesting these other miscellaneous powers in the Special Division pursuant to the Act. As we observed above, one purpose of the broad prohibition upon the courts' exercise of “executive or administrative duties of a nonjudicial nature,” Buckley, 424 U.S., at 123, 96 S.Ct., at 684, is to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished*681 by those branches. In this case, the miscellaneous pow-ers described above do not impermissibly trespass upon the authority of the Executive Branch. Some of these allegedly “supervisory” powers conferred on the court are passive: the Division merely “receives” reports from the counsel or the Attorney General, it is not entitled to act on them or to specifically approve or disapprove of their contents. **2614 Other provi-sions of the Act do require the court to exercise some judgment and discretion,FN19 but the powers granted by these provisions are themselves essentially minis-terial. The Act simply does not give the Division the power to “supervise” the independent counsel in the exercise of his or her investigative or prosecutorial authority. And, the functions that the Special Divi-sion is empowered to perform are not inherently “Ex-ecutive”; indeed, they are directly analogous to func-tions that federal judges perform in other contexts, such as deciding whether to allow disclosure of mat-ters occurring before a grand jury, see Fed. Rule Crim.Proc. 6(e), deciding to extend a grand jury in-vestigation, Rule 6(g), or awarding attorney's fees, see, e.g., 42 U.S.C. § 1988.FN20

FN19. The Special Division must determine whether the Attorney General has shown “good cause” for his or her request for an extension of the time limit on his or her pre-liminary investigation, § 592(a)(3); the court must decide whether and to what extent it should release to the public the counsel's fi-nal report or the Attorney General's removal report, §§ 596(a)(2), (b)(2); and the court may consider the propriety of a request for attorney's fees, § 593(f).

FN20. By way of comparison, we also note that federal courts and judges have long per-formed a variety of functions that, like the functions involved here, do not necessarily or directly involve adversarial proceedings within a trial or appellate court. For exam-ple, federal courts have traditionally super-vised grand juries and assisted in their “in-vestigative function” by, if necessary, com-pelling the testimony of witnesses. See Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 545-546, 3 L.Ed.2d 609 (1959). Federal courts also participate in the issu-ance of search warrants, see Fed. Rule Crim. Proc. 41, and review applications for wire-taps, see 18 U.S.C. §§ 2516, 2518 (1982 ed. and Supp. IV), both of which may require a court to consider the nature and scope of criminal investigations on the basis of evi-dence or affidavits submitted in an ex parte proceeding. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793-802, 107 S.Ct. 2124, 2130-2135, 95 L.Ed.2d 740 (1987), we recognized that federal courts possess inherent authority to initiate con-tempt proceedings for disobedience to their orders, and this authority necessarily in-cludes the ability to appoint a private attor-ney to prosecute the contempt.

*682 [6] We are more doubtful about the Special Division's power to terminate the office of the inde-pendent counsel pursuant to § 596(b)(2). As appel-lees suggest, the power to terminate, especially when exercised by the Division on its own motion, is “ad-ministrative” to the extent that it requires the Special Division to monitor the progress of proceedings of the independent counsel and come to a decision as to whether the counsel's job is “completed.” § 596(b)(2). It also is not a power that could be consid-ered typically “judicial,” as it has few analogues among the court's more traditional powers. Nonethe-less, we do not, as did the Court of Appeals, view this provision as a significant judicial encroachment upon executive power or upon the prosecutorial discretion of the independent counsel.

We think that the Court of Appeals overstated the matter when it described the power to terminate as a “broadsword and ... rapier” that enables the court to “control the pace and depth of the independent counsel's activities.” 267 U.S.App.D.C., at 217, 838 F.2d, at 515. The provision has not been tested in practice, and we do not mean to say that an adventur-ous special court could not reasonably construe the provision as did the Court of Appeals; but it is the duty of federal courts to construe a statute in order to save it from constitutional infirmities, see, e.g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 3251, 92 L.Ed.2d 675 (1986), and to that end we think a narrow construc-tion is appropriate here. The termination provisions of the Act do not give the Special Division anything approaching the power to remove the counsel while an investigation or court proceeding is still under-way-this power is vested solely in the Attorney Gen-eral. As we see it, “termination” may occur only when the duties of *683 the counsel are truly “com-pleted” or “so substantially completed” that there remains no need for any continuing **2615 action by the independent counsel.FN21 It is basically a device for removing from the public payroll an independent counsel who has served his or her purpose, but is unwilling to acknowledge the fact. So construed, the Special Division's power to terminate does not pose a sufficient threat of judicial intrusion into matters that are more properly within the Executive's authority to require that the Act be invalidated as inconsistent with Article III.

FN21. As the dissenting opinion noted be-low, the termination provision was “in-tended to serve only as a measure of last re-sort.” See In re Sealed Case, 267 U.S.App.D.C. 178, 224, n. 13, 838 F.2d 476, 522, n. 13 (1988). The Senate Report on the provision states:

“This paragraph provides for the unlikely situation where a special prosecutor may try to remain as special prosecutor after his responsibilities under this chapter are completed.... The drastic remedy of termi-nating the office of special prosecutor without the consent of the special prose-cutor should obviously be executed with caution.” S.Rep. No. 95-170, p. 75 (1977).

[7] Nor do we believe, as appellees contend, that the Special Division's exercise of the various powers specifically granted to it under the Act poses any threat to the “impartial and independent federal adju-dication of claims within the judicial power of the United States.” Commodity Futures Trading Comm'n v. Schor, supra, at 850, 106 S.Ct., at 3256. We reach this conclusion for two reasons. First, the Act as it currently stands gives the Special Division itself no power to review any of the actions of the independent counsel or any of the actions of the Attorney General with regard to the counsel. Accordingly, there is no risk of partisan or biased adjudication of claims re-garding the independent counsel by that court. Sec-ond, the Act prevents members of the Special Divi-sion from participating in “any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless*684 of whether such independent counsel is still serving in that office.” 28 U.S.C. § 49(f) (1982 ed., Supp. V) (emphasis added); see also § 596(a)(3) (preventing members of the Special Division from participating in review of the Attorney General's decision to re-move an independent counsel). We think both the special court and its judges are sufficiently isolated by these statutory provisions from the review of the activities of the independent counsel so as to avoid any taint of the independence of the Judiciary such as would render the Act invalid under Article III.

[8] We emphasize, nevertheless, that the Special Division has no authority to take any action or under-take any duties that are not specifically authorized by the Act. The gradual expansion of the authority of the Special Division might in another context be a bu-reaucratic success story, but it would be one that would have serious constitutional ramifications. The record in other cases involving independent counsel indicate that the Special Division has at times given advisory opinions or issued orders that are not di-rectly authorized by the Act. Two examples of this were cited by the Court of Appeals, which noted that the Special Division issued “orders” that ostensibly exempted the independent counsel from conflict-of-interest laws. See 267 U.S.App.D.C., at 216, and n. 60, 838 F.2d, at 514, and n. 60 (citing In re Deaver, No. 86-2 (CADC Special Division, July 2, 1986), and In re Olson, No. 86-1 (CADC Special Division, June 18, 1986)). In another case, the Division reportedly ordered that a counsel postpone an investigation into certain allegations until the completion of related state criminal proceedings. See H.R.Rep.Conf.Rep. No. 100-452, p. 26 (1987), U.S.Code Cong. & Admin.News 1987, pp. 2150, 2192. The propriety of the Special Division's actions in these instances is not before us as such, but we nonetheless think it appro-priate to point out not only that there is no authoriza-tion for such actions in the Act itself, but that the Division's exercise of unauthorized *685 powers risks the **2616 transgression of the constitutional limitations of Article III that we have just dis-cussed.FN22

FN22. We see no impropriety in the Special Division's actions with regard to its response to appellant's request for referral of addi-tional matters in this case. See In re Olson, 260 U.S.App.D.C. 168, 818 F.2d 34 (Special Division 1987). The Division has statutory authority to respond to appellant's request pursuant to § 594(e), and it was only proper that it first consider whether it could exer-cise its statutory authority without running afoul of the Constitution. As to the Divi-sion's alleged “reinterpretation” of its origi-nal grant of jurisdiction, the power to “rein-terpret” or clarify the original grant may be seen as incidental to the court's referral power. After all, in order to decide whether to refer a matter to the counsel, the court must be able to determine whether the mat-ter falls within the scope of the original grant. See n. 18, supra. We express no view on the merits of the Division's interpretation of the original grant or of its ruling in regard to its power to refer matters that the Attor-ney General has previously refused to refer.

V
We now turn to consider whether the Act is inva-lid under the constitutional principle of separation of powers. Two related issues must be addressed: The first is whether the provision of the Act restricting the Attorney General's power to remove the independent counsel to only those instances in which he can show “good cause,” taken by itself, impermissibly inter-feres with the President's exercise of his constitution-ally appointed functions. The second is whether, taken as a whole, the Act violates the separation of powers by reducing the President's ability to control the prosecutorial powers wielded by the independent counsel.

A
Two Terms ago we had occasion to consider whether it was consistent with the separation of pow-ers for Congress to pass a statute that authorized a Government official who is removable only by Con-gress to participate in what we found to be “executive powers.” Bowsher v. Synar, 478 U.S. 714, 730, 106 S.Ct. 3181, 3190, 92 L.Ed.2d 583 (1986). We held in Bowsher that “Congress cannot reserve *686 for it-self the power of removal of an officer charged with the execution of the laws except by impeachment.” Id., at 726, 106 S.Ct., at 3188. A primary antecedent for this ruling was our 1926 decision in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). Myers had considered the propriety of a fed-eral statute by which certain postmasters of the United States could be removed by the President only “by and with the advice and consent of the Senate.” There too, Congress' attempt to involve itself in the removal of an executive official was found to be suf-ficient grounds to render the statute invalid. As we observed in Bowsher, the essence of the decision in Myers was the judgment that the Constitution pre-vents Congress from “draw[ing] to itself ... the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of the [Appointments Clause] and to infringe the constitutional principle of the separation of governmental powers.” Myers, supra, at 161, 47 S.Ct., at 40.

Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and convic-tion. The Act instead puts the removal power squarely in the hands of the Executive Branch; an independent counsel may be removed from office, “only by the personal action of the Attorney General, and only for good cause.” § 596(a)(1).FN23 There is no requirement of congressional approval of the Attor-ney General's removal decision, though the decision is subject to judicial**2617 review. § 596(a)(3). In our view, the removal provisions of the Act make this case more analogous to Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), and Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958), than to Myers or Bowsher.

FN23. As noted, an independent counsel may also be removed through impeachment and conviction. In addition, the Attorney General may remove a counsel for “physical disability, mental incapacity, or any other condition that substantially impairs the per-formance” of his or her duties. § 596(a)(1).

*687 In Humphrey's Executor, the issue was whether a statute restricting the President's power to remove the Commissioners of the Federal Trade Commission (FTC) only for “inefficiency, neglect of duty, or malfeasance in office” was consistent with the Constitution. 295 U.S., at 619, 55 S.Ct., at 870. We stated that whether Congress can “condition the [President's power of removal] by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office.” Id., at 631, 55 S.Ct., at 875. Contrary to the implication of some dicta in Myers, FN24 the President's power to remove Government officials simply was not “all-inclusive in respect of civil officers with the exception of the ju-diciary provided for by the Constitution.” 295 U.S., at 629, 55 S.Ct., at 874. At least in regard to “quasi-legislative” and “quasi-judicial” agencies such as the FTC,FN25 “[t]he authority of Congress, in creating [such] agencies, to require them to act in discharge of their duties independently of executive control ... includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the mean-time.” Ibid. In Humphrey's Executor, we found it “plain” that the Constitution did not give the Presi-dent “illimitable power of removal” over the officers of independent agencies. Ibid. Were the President to have *688 the power to remove FTC Commissioners at will, the “coercive influence” of the removal power would “threate[n] the independence of [the] commis-sion.” Id., at 630, 55 S.Ct., at 875.

FN24. The Court expressly disapproved of any statements in Myers that “are out of harmony” with the views expressed in Humphrey's Executor. 295 U.S., at 626, 55 S.Ct., at 873. We recognized that the only issue actually decided in Myers was that “the President had power to remove a post-master of the first class, without the advice and consent of the Senate as required by act of Congress.” 295 U.S., at 626, 55 S.Ct., at 873.

FN25. See id., at 627-628, 55 S.Ct., at 873-874. We described the FTC as “an adminis-trative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid.” Such an agency was not “an arm or an eye of the executive,” and the commissioners were intended to perform their duties “without executive leave and ... free from executive control.” Id., at 628, 55 S.Ct., at 874. As we put it at the time, the powers of the FTC were not “purely” execu-tive, but were “quasi-legislative or quasi-judicial.” Ibid.

Similarly, in Wiener we considered whether the President had unfettered discretion to remove a member of the War Claims Commission, which had been established by Congress in the War Claims Act of 1948, 62 Stat. 1240. The Commission's function was to receive and adjudicate certain claims for com-pensation from those who had suffered personal in-jury or property damage at the hands of the enemy during World War II. Commissioners were appointed by the President, with the advice and consent of the Senate, but the statute made no provision for the re-moval of officers, perhaps because the Commission itself was to have a limited existence. As in Hum-phrey's Executor, however, the Commissioners were entrusted by Congress with adjudicatory powers that were to be exercised free from executive control. In this context, “Congress did not wish to have hang over the Commission the Damocles' sword of re-moval by the President for no reason other than that he preferred to have on that Commission men of his own choosing.” 357 U.S., at 356, 78 S.Ct., at 1279. Accordingly, we rejected the President's attempt to remove a Commissioner “merely because he wanted his own appointees on [the] Commission,” stating that “no such power is given to the President di-rectly**2618 by the Constitution, and none is im-pliedly conferred upon him by statute.” Ibid.

Appellees contend that Humphrey's Executor and Wiener are distinguishable from this case because they did not involve officials who performed a “core executive function.” They argue that our decision in Humphrey's Executor rests on a distinction between “purely executive” officials and officials who exer-cise “quasi-legislative” and “quasi-judicial” powers. In their view, when a “purely executive” official is involved, the governing precedent is Myers, not Humphrey's Executor. See Humphrey's Executor, supra, 295 U.S., at 628, 55 S.Ct., at 874. And, under Myers, the President must have absolute discretion to *689 discharge “purely” executive officials at will. See Myers, 272 U.S., at 132-134, 47 S.Ct., at 30-31.FN26

FN26. This same argument was raised by the Solicitor General in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), although as Justice WHITE noted in dissent in that case, the argument was clearly not accepted by the Court at that time. Id., at 738-739, and nn. 1-3, 106 S.Ct., at 3206-3207, and nn. 1-3.

We undoubtedly did rely on the terms “quasi-legislative” and “quasi-judicial” to distinguish the officials involved in Humphrey's Executor and Wie-ner from those in Myers, but our present considered view is that the determination of whether the Consti-tution allows Congress to impose a “good cause”-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as “purely executive.” FN27 The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the Presi-dent,FN28 but to ensure that Congress does *690 not interfere with the President's exercise of the “execu-tive power” and his constitutionally appointed duty to “take care that the laws be faithfully executed” under Article II. Myers was undoubtedly correct in its hold-ing, and in its broader suggestion that there are some “purely executive” officials who must be removable by the President at will if he is to be able to accom-plish **2619 his constitutional role.FN29 See 272 U.S., at 132-134, 47 S.Ct., at 30-31. But as the Court noted in Wiener:

FN27. Indeed, this Court has never held that the Constitution prevents Congress from imposing limitations on the President's power to remove all executive officials sim-ply because they wield “executive” power. Myers itself expressly distinguished cases in which Congress had chosen to vest the ap-pointment of “inferior” executive officials in the head of a department. See 272 U.S., at 161-163, 164, 47 S.Ct., at 40-41, 41. In such a situation, we saw no specific constitutional impediment to congressionally imposed re-strictions on the President's removal powers. See also United States v. Perkins, 116 U.S. 483, 485, 6 S.Ct. 449, 450, 29 L.Ed. 700 (1886) (“ ‘The constitutional authority in Congress to thus vest the appointment [of inferior officers in the heads of departments] implies authority to limit, restrict, and regu-late the removal by such laws as Congress may enact in relation to the officers so ap-pointed’ ”) (quoting the Court of Claims' de-cision in the case).

FN28. The difficulty of defining such cate-gories of “executive” or “quasi-legislative” officials is illustrated by a comparison of our decisions in cases such as Humphrey's Ex-ecutor, Buckley v. Valeo, 424 U.S. 1, 140-141, 96 S.Ct. 612, 692-693, 46 L.Ed.2d 659 (1976), and Bowsher, supra, 478 U.S., at 732-734, 106 S.Ct., at 3191-3192. In Buck-ley, we indicated that the functions of the Federal Election Commission are “adminis-trative,” and “more legislative and judicial in nature,” and are “of kinds usually per-formed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress.” 424 U.S., at 140-141, 96 S.Ct., at 692-693. In Bowsher, we found that the functions of the Comptroller General were “executive” in nature, in that he was re-quired to “exercise judgment concerning facts that affect the application of the Act,” and he must “interpret the provisions of the Act to determine precisely what budgetary calculations are required.” 478 U.S., at 733, 106 S.Ct., at 3191. Compare this with the description of the FTC's powers in Hum-phrey's Executor, which we stated “occu-pie[d] no place in the executive depart-ment”: “The [FTC] is an administrative body created by Congress to carry into ef-fect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid.” 295 U.S., at 628, 55 S.Ct., at 874. As Justice WHITE noted in his dissent in Bowsher, it is hard to dispute that the powers of the FTC at the time of Hum-phrey's Executor would at the present time be considered “executive,” at least to some degree. See 478 U.S., at 761, n. 3, 106 S.Ct., at 3206, n. 3.

FN29. The dissent says that the language of Article II vesting the executive power of the United States in the President requires that every officer of the United States exercising any part of that power must serve at the pleasure of the President and be removable by him at will. Post, at 2626. This rigid de-marcation-a demarcation incapable of being altered by law in the slightest degree, and applicable to tens of thousands of holders of offices neither known nor foreseen by the Framers-depends upon an extrapolation from general constitutional language which we think is more than the text will bear. It is also contrary to our holding in United States v. Perkins, supra, decided more than a cen-tury ago.

“The assumption was short-lived that the Myers case recognized the President's inherent constitu-tional power to remove officials no matter what the relation of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding the nature of their tenure.” 357 U.S., at 352, 78 S.Ct., at 1277.
At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey's Ex-ecutor and Wiener *691 as “quasi-legislative” or “quasi-judicial” in large part reflected our judg-ment that it was not essential to the President's proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will. FN30 We do not mean to suggest that an analysis of the functions served by the offi-cials at issue is irrelevant. But the real question is whether the removal restrictions are of such a na-ture that they impede the President's ability to per-form his constitutional duty, and the functions of the officials in question must be analyzed in that light.

FN30. The terms also may be used to de-scribe the circumstances in which Congress might be more inclined to find that a degree of independence from the Executive, such as that afforded by a “good cause” removal standard, is necessary to the proper function-ing of the agency or official. It is not diffi-cult to imagine situations in which Congress might desire that an official performing “quasi-judicial” functions, for example, would be free of executive or political con-trol.

[9] Considering for the moment the “good cause” removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a “good cause” standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are “execu-tive” in the sense that they are law enforcement func-tions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior offi-cer under the Appointments Clause, with limited ju-risdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her du-ties under the Act, we simply do not see how the President's need to control the exercise of that discre-tion is so central to the functioning of the Executive Branch as to require as a matter of constitutional*692 law that the counsel be terminable at will by the President.FN31

FN31. We note by way of comparison that various federal agencies whose officers are covered by “good cause” removal restric-tions exercise civil enforcement powers that are analogous to the prosecutorial powers wielded by an independent counsel. See, e.g., 15 U.S.C. § 45(m) (giving the FTC the authority to bring civil actions to recover civil penalties for the violations of rules re-specting unfair competition); 15 U.S.C. §§ 2061, 2071, 2076(b)(7)(A) (giving the Con-sumer Product Safety Commission the authority to obtain injunctions and apply for seizure of hazardous products).

Nor do we think that the “good cause” removal provision at issue here impermissibly burdens the President's power to control or supervise the inde-pendent counsel, as an executive official, in the exe-cution of his or her duties under the Act. This is not a case in which the power to remove an executive offi-cial has been completely stripped from the President, thus providing no means for the President to ensure the **2620 “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attor-ney General, retains ample authority to assure that the counsel is competently performing his or her statu-tory responsibilities in a manner that comports with the provisions of the Act.FN32 Although we need not decide in this case exactly what is encompassed within the term “good cause” under the Act, the leg-islative history of the removal provision also makes clear that the Attorney General may remove an inde-pendent counsel for “misconduct.” See H.R.Conf.Rep. No. 100-452, p. 37 (1987). Here, as with the provision of the Act conferring the appoint-ment authority of *693 the independent counsel on the special court, the congressional determination to limit the removal power of the Attorney General was essential, in the view of Congress, to establish the necessary independence of the office. We do not think that this limitation as it presently stands suffi-ciently deprives the President of control over the in-dependent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execu-tion of the laws. FN33

FN32. Indeed, during the hearings on the 1982 amendments to the Act, a Justice De-partment official testified that the “good cause” standard contained in the amend-ments “would make the special prosecutor no more independent than officers of the many so-called independent agencies in the executive branch.” Ethics in Government Act Amendments of 1982, Hearing before the Subcommittee on Oversight of Govern-ment Management of the Senate Committee on Governmental Affairs, 97th Cong., 2d Sess., 7 (1981) (Associate Attorney General Giuliani).

FN33. We see no constitutional problem in the fact that the Act provides for judicial re-view of the removal decision. § 596(a)(3). The purpose of such review is to ensure that an independent counsel is removed only in accordance with the will of Congress as ex-pressed in the Act. The possibility of judicial review does not inject the Judicial Branch into the removal decision, nor does it, by it-self, put any additional burden on the Presi-dent's exercise of executive authority. In-deed, we note that the legislative history of the most recent amendment to the Act indi-cates that the scope of review to be exer-cised by the courts under § 596(a)(3) is to be “the standards established by existing case law on the removal of [other] officials” who are subject to “good cause” removal. H.R.Conf.Rep. No. 100-452, p. 37 (1987).

B
[10] The final question to be addressed is whether the Act, taken as a whole, violates the prin-ciple of separation of powers by unduly interfering with the role of the Executive Branch. Time and again we have reaffirmed the importance in our con-stitutional scheme of the separation of governmental powers into the three coordinate branches. See, e.g., Bowsher v. Synar, 478 U.S., at 725, 106 S.Ct., at 3187 (citing Humphrey's Executor, 295 U.S., at 629-630, 55 S.Ct., at 874-875). As we stated in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the system of separated powers and checks and balances established in the Constitution was re-garded by the Framers as “a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.” Id., at 122, 96 S.Ct., at 684. We have not hesitated to invalidate provisions of law which violate this principle. See id., at 123, 96 S.Ct., at 684. On the other hand, we have never held that the Constitution requires that the three *694 branches of Government “operate with absolute independence.” United States v. Nixon, 418 U.S., at 707, 94 S.Ct., at 3107; see also Nixon v. Administra-tor of General Services, 433 U.S. 425, 442, 97 S.Ct. 2777, 2789, 53 L.Ed.2d 867 (1977) (citing James Madison in The Federalist No. 47, and Joseph Story in 1 Commentaries on the Constitution § 525 (M. Bigelow, 5th ed. 1905)). In the often-quoted words of Justice Jackson:

“While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separate-ness but interdependence, autonomy but reciproc-ity.” **2621Youngstown Sheet & Tube Co. v. Saw-yer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (concurring opinion).

We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. Cf. Commodity Futures Trading Comm'n v. Schor, 478 U.S., at 856, 106 S.Ct., at 3259-3260. Unlike some of our previous cases, most recently Bowsher v. Synar, this case sim-ply does not pose a “dange[r] of congressional usur-pation of Executive Branch functions.” 478 U.S., at 727, 106 S.Ct., at 3188; see also INS v. Chadha, 462 U.S. 919, 958, 103 S.Ct. 2764, 2777, 77 L.Ed.2d 317 (1983). Indeed, with the exception of the power of impeachment-which applies to all officers of the United States-Congress retained for itself no powers of control or supervision over an independent coun-sel. The Act does empower certain Members of Con-gress to request the Attorney General to apply for the appointment of an independent counsel, but the At-torney General has no duty to comply with the re-quest, although he must respond within a certain time limit. § 529(g). Other than that, Congress' role under the Act is limited to receiving reports or other infor-mation and oversight of the independent counsel's activities, § 595(a), functions that we have recog-nized generally as being incidental to the legislative function of Congress. See McGrain v. Daugherty, 273 U.S. 135, 174, 47 S.Ct. 319, 328, 71 L.Ed. 580 (1927).

*695 Similarly, we do not think that the Act works any judicial usurpation of properly executive functions. As should be apparent from our discussion of the Appointments Clause above, the power to ap-point inferior officers such as independent counsel is not in itself an “executive” function in the constitu-tional sense, at least when Congress has exercised its power to vest the appointment of an inferior office in the “courts of Law.” We note nonetheless that under the Act the Special Division has no power to appoint an independent counsel sua sponte; it may only do so upon the specific request of the Attorney General, and the courts are specifically prevented from re-viewing the Attorney General's decision not to seek appointment, § 592(f). In addition, once the court has appointed a counsel and defined his or her jurisdic-tion, it has no power to supervise or control the ac-tivities of the counsel. As we pointed out in our dis-cussion of the Special Division in relation to Article III, the various powers delegated by the statute to the Division are not supervisory or administrative, nor are they functions that the Constitution requires be performed by officials within the Executive Branch. The Act does give a federal court the power to review the Attorney General's decision to remove an inde-pendent counsel, but in our view this is a function that is well within the traditional power of the Judici-ary.

Finally, we do not think that the Act “impermis-sibly undermine[s]” the powers of the Executive Branch, Schor, supra, 478 U.S., at 856, 106 S.Ct., at 3260, or “disrupts the proper balance between the coordinate branches [by] prevent [ing] the Executive Branch from accomplishing its constitutionally as-signed functions,” Nixon v. Administrator of General Services, supra, 433 U.S., at 443, 97 S.Ct., at 2790. It is undeniable that the Act reduces the amount of con-trol or supervision that the Attorney General and, through him, the President exercises over the investi-gation and prosecution of a certain class of alleged criminal activity. The Attorney General is not al-lowed to appoint the individual of his choice; he does not determine the counsel's jurisdiction; and his *696 power to remove a counsel is limited.FN34 Nonethe-less, the Act does give the Attorney General several means of supervising or controlling the prosecutorial powers that may be wielded **2622 by an independ-ent counsel. Most importantly, the Attorney General retains the power to remove the counsel for “good cause,” a power that we have already concluded pro-vides the Executive with substantial ability to ensure that the laws are “faithfully executed” by an inde-pendent counsel. No independent counsel may be appointed without a specific request by the Attorney General, and the Attorney General's decision not to request appointment if he finds “no reasonable grounds to believe that further investigation is war-ranted” is committed to his unreviewable discretion. The Act thus gives the Executive a degree of control over the power to initiate an investigation by the in-dependent counsel. In addition, the jurisdiction of the independent counsel is defined with reference to the facts submitted by the Attorney General, and once a counsel is appointed, the Act requires that the counsel abide by Justice Department policy unless it is not “possible” to do so. Notwithstanding the fact that the counsel is to some degree “independent” and free from executive supervision to a greater extent than other federal prosecutors, in our view these features of the Act give the Executive Branch sufficient con-trol over the independent counsel to ensure that the President is able to perform his constitutionally as-signed duties.

FN34. With these provisions, the degree of control exercised by the Executive Branch over an independent counsel is clearly di-minished in relation to that exercised over other prosecutors, such as the United States Attorneys, who are appointed by the Presi-dent and subject to termination at will.

VI
In sum, we conclude today that it does not vio-late the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division; that the powers exercised by the Special Division under the Act do not violate *697 Article III; and that the Act does not violate the separation-of-powers principle by impermissibly interfering with the functions of the Executive Branch. The decision of the Court of Appeals is therefore

Reversed.

Justice KENNEDY took no part in the consideration or decision of this case.

Justice SCALIA, dissenting.
It is the proud boast of our democracy that we have “a government of laws and not of men.” Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Ar-ticle XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:

“In the government of this Commonwealth, the legislative department shall never exercise the ex-ecutive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The Framers of the Federal Constitution simi-larly viewed the principle of separation of powers as the absolutely central guarantee of a just Govern-ment. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrin-sic value, or is stamped with the authority of more enlightened patrons of liberty.” The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federal-ist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.

The principle of separation of powers is ex-pressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United *698 States, which shall consist of a Senate and House of Repre-sentatives.” Article III, § 1, provides that “[t]he judi-cial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and estab-lish.” And the provision at issue here, Art. II, § 1, cl. 1, provides that “[t]he executive Power shall be vested in a President of the United States of Amer-ica.”

**2623 But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recog-nized “[t]he insufficiency of a mere parchment de-lineation of the boundaries” to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). “[T]he great security,” wrote Madison, “against a gradual concentration of the several powers in the same department consists in giving to those who ad-minister each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack.” Federalist No. 51, pp. 321-322. Madison continued:

“But it is not possible to give to each department an equal power of self-defense. In republican gov-ernment, the legislative authority necessarily pre-dominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the so-ciety will admit.... As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.” Id., at 322-323.

The major “fortification” provided, of course, was the veto power. But in addition to providing for-tification, the Founders conspicuously and very con-sciously declined to sap the Executive's strength in the same way they had weakened *699 the Legisla-ture: by dividing the executive power. Proposals to have multiple executives, or a council of advisers with separate authority were rejected. See 1 M. Far-rand, Records of the Federal Convention of 1787, pp. 66, 71-74, 88, 91-92 (rev. ed. 1966); 2 id., at 335-337, 533, 537, 542. Thus, while “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” U.S. Const., Art. I, § 1 (emphasis added), “[t]he executive Power shall be vested in a President of the United States,” Art. II, § 1, cl. 1 (emphasis added).

That is what this suit is about. Power. The allo-cation of power among Congress, the President, and the courts in such fashion as to preserve the equilib-rium the Constitution sought to establish-so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the as-serted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analy-sis. But this wolf comes as a wolf.

I
The present case began when the Legislative and Executive Branches became “embroiled in a dispute concerning the scope of the congressional investiga-tory power,” United States v. House of Representa-tives of United States, 556 F.Supp. 150, 152 (DC 1983), which-as is often the case with such inter-branch conflicts-became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed nu-merous internal EPA documents. The President re-sponded by personally directing the EPA Administra-tor not to turn over certain of the documents,*700 see Memorandum of November 30, 1982, from President Reagan for the Administrator, Environmental Protec-tion Agency, reprinted in H.R.Rep. No. 99-435, pp. 1166-1167 (1985), and by having the Attorney Gen-eral notify the congressional Subcommittees of this assertion of executive privilege, see Letters of No-vember 30, 1982, from Attorney General William French Smith to Hon. John D. Dingell **2624 and Hon. Elliott H. Levitas, reprinted, id., at 1168-1177. In his decision to assert executive privilege, the President was counseled by appellee Olson, who was then Assistant Attorney General of the Department of Justice for the Office of Legal Counsel, a post that has traditionally had responsibility for providing le-gal advice to the President (subject to approval of the Attorney General). The House's response was to pass a resolution citing the EPA Administrator, who had possession of the documents, for contempt. Contempt of Congress is a criminal offense. See 2 U.S.C. § 192. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. Instead, the Execu-tive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the Dis-trict Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. See ibid. The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two branches to try “[c]ompromise and cooperation, rather than confrontation.” 556 F.Supp., at 153. After further haggling, the two branches eventually reached an agreement giving the House Subcommittees limited access to the contested documents.

Congress did not, however, leave things there. Certain Members of the House remained angered by the confrontation, particularly by the role played by the Department of Justice. Specifically, the Judiciary Committee remained disturbed by the possibility that the Department had persuaded the President to assert executive privilege despite reservations by the *701 EPA; that the Department had “deliberately and un-necessarily precipitated a constitutional confrontation with Congress”; that the Department had not properly reviewed and selected the documents as to which executive privilege was asserted; that the Department had directed the United States Attorney not to present the contempt certification involving the EPA Admin-istrator to a grand jury for prosecution; that the De-partment had made the decision to sue the House of Representatives; and that the Department had not adequately advised and represented the President, the EPA, and the EPA Administrator. H.R.Rep. No. 99-435, p. 3 (1985) (describing unresolved “questions” that were the basis of the Judiciary Committee's in-vestigation). Accordingly, staff counsel of the House Judiciary Committee were commissioned (apparently without the knowledge of many of the Committee's members, see id., at 731) to investigate the Justice Department's role in the controversy. That investiga-tion lasted 2 1/2 years, and produced a 3,000-page report issued by the Committee over the vigorous dissent of all but one of its minority-party members. That report, which among other charges questioned the truthfulness of certain statements made by Assis-tant Attorney General Olson during testimony in front of the Committee during the early stages of its investigation, was sent to the Attorney General along with a formal request that he appoint an independent counsel to investigate Mr. Olson and others.

As a general matter, the Act before us here re-quires the Attorney General to apply for the appoint-ment of an independent counsel within 90 days after receiving a request to do so, unless he determines within that period that “there are no reasonable grounds to believe that further investigation or prose-cution is warranted.” 28 U.S.C. § 592(b)(1). As a practical matter, it would be surprising if the Attor-ney General had any choice (assuming this statute is constitutional) but to seek appointment of an inde-pendent counsel to pursue the charges against the principal object of the congressional *702 request, Mr. Olson. Merely the political consequences (to him and the President) of seeming to break the law by refusing to do so would have been substantial. How could it not be, the public would ask, that a 3,000-page indictment drawn by our representatives over 2 1/2 years does not even establish “reasonable **2625 grounds to believe” that further investigation or prosecution is warranted with respect to at least the principal alleged culprit? But the Act establishes more than just practical compulsion. Although the Court's opinion asserts that the Attorney General had “no duty to comply with the [congressional] request,” ante, at 2620, that is not entirely accurate. He had a duty to comply unless he could conclude that there were “no reasonable grounds to believe,” not that prosecution was warranted, but merely that “further investigation ” was warranted, 28 U.S.C. § 592(b)(1) (1982 ed., Supp. V) (emphasis added), after a 90-day investigation in which he was prohibited from using such routine investigative techniques as grand juries, plea bargaining, grants of immunity, or even subpoe-nas, see § 592(a)(2). The Court also makes much of the fact that “the courts are specifically prevented from reviewing the Attorney General's decision not to seek appointment, § 592(f).” Ante, at 2621. Yes,FN1 but Congress is not prevented from reviewing it. The context of this statute is acrid with the smell of threatened impeachment. Where, as here, a request for appointment of an independent*703 counsel has come from the Judiciary Committee of either House of Congress, the Attorney General must, if he decides not to seek appointment, explain to that Committee why. See also 28 U.S.C. § 595(c) (1982 ed., Supp. V) (independent counsel must report to the House of Representatives information “that may constitute grounds for an impeachment”).

FN1. I agree with the Court on this point, but not because of the section of the statute that it cites, § 592(f). What that provides is that “[t]he Attorney General's determination ... to apply to the division of the court for the appointment of an independent counsel shall not be reviewable in any court.” Quite obvi-ously, the determination to apply is not the same as the determination not to apply. In other contexts, we have sternly avoided “construing” a statute to mean what it plainly does not say, merely in order to avoid constitutional problems. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 3251, 92 L.Ed.2d 675 (1986). In my view, however, the Attorney General's decision not to refer would in any event be nonre-viewable as the exercise of prosecutorial discretion. See Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).

Thus, by the application of this statute in the pre-sent case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his author-ized subordinates believe it is in the interest of the United States, in the sense that it warrants the diver-sion of resources from other efforts, and is worth the cost in money and in possible damage to other gov-ernmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investiga-tion is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordi-nates.

II
If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. The Court devotes most of its attention to such relatively technical de-tails as the Appointments Clause and the removal power, addressing briefly and only at the end of its opinion the separation of powers. As my prologue suggests,*704 I think that has it backwards. Our opinions are full of the recognition that it is the prin-ciple of separation of powers, and the inseparable **2626 corollary that each department's “defense must ... be made commensurate to the danger of at-tack,” Federalist No. 51, p. 322 (J. Madison), which gives comprehensible content to the Appointments Clause, and determines the appropriate scope of the removal power. Thus, while I will subsequently dis-cuss why our appointments and removal jurispru-dence does not support today's holding, I begin with a consideration of the fountainhead of that jurispru-dence, the separation and equilibration of powers.

First, however, I think it well to call to mind an important and unusual premise that underlies our deliberations, a premise not expressly contradicted by the Court's opinion, but in my view not faithfully observed. It is rare in a case dealing, as this one does, with the constitutionality of a statute passed by the Congress of the United States, not to find anywhere in the Court's opinion the usual, almost formulary caution that we owe great deference to Congress' view that what it has done is constitutional, see, e.g., Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 2651, 69 L.Ed.2d 478 (1981); Fullilove v. Klutznick, 448 U.S. 448, 472, 100 S.Ct. 2758, 2771, 65 L.Ed.2d 902 (1980) (opinion of Burger, C.J.); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973); United States v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963), and that we will decline to apply the statute only if the presump-tion of constitutionality can be overcome, see Fullilove, supra, 448 U.S., at 473, 100 S.Ct., at 2772; Columbia Broadcasting, supra, 412 U.S., at 103, 93 S.Ct., at 2087. That caution is not recited by the Court in the present case because it does not apply. Where a private citizen challenges action of the Gov-ernment on grounds unrelated to separation of pow-ers, harmonious functioning of the system demands that we ordinarily give some deference, or a pre-sumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of powers,*705 and the political branches are (as here) in disagreement, neither can be presumed correct. The reason is stated concisely by Madison: “The several departments be-ing perfectly co-ordinate by the terms of their com-mon commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers....” Federalist No. 49, p. 314. The playing field for the present case, in other words, is a level one. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt.

To repeat, Article II, § 1, cl. 1, of the Constitu-tion provides:

“The executive Power shall be vested in a Presi-dent of the United States.”

As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental sepa-ration-of-powers principles if the following two ques-tions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable con-clusion that since the statute vests some purely ex-ecutive power in a person who is not the President of the United States it is void.

The Court concedes that “[t]here is no real dis-pute that the functions performed by the independent counsel are ‘executive’,” though it qualifies that con-cession by adding “in the sense that they are law en-forcement functions that typically have been under-taken by officials within the Executive**2627 Branch.” Ante, at 2619. The qualifier adds nothing but atmosphere.*706 In what other sense can one identify “the executive Power” that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by refer-ence to what has always and everywhere-if conducted by government at all-been conducted never by the legislature, never by the courts, and always by the executive. There is no possible doubt that the inde-pendent counsel's functions fit this description. She is vested with the “full power and independent authority to exercise all investigative and prosecutorial func-tions and powers of the Department of Justice [and] the Attorney General.” 28 U.S.C. § 594(a) (1982 ed., Supp. V) (emphasis added). Governmental investiga-tion and prosecution of crimes is a quintessentially executive function. See Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985); Buckley v. Valeo, 424 U.S. 1, 138, 96 S.Ct. 612, 691, 46 L.Ed.2d 659 (1976); United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974).

As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the stat-ute. Instead, the Court points out that the President, through his Attorney General, has at least some con-trol. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that “some” Presidential control. “Most importan[t]” among these controls, the Court asserts, is the Attorney General's “power to remove the counsel for ‘good cause.’ ” Ante, at 2621. This is somewhat like referring to shackles as an effective means of locomotion. As we recognized in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935)-indeed, what Humphrey's Executor was all about-limiting removal power to “good cause” is an im-pediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commis-sion, which we found to be “an agency of the legisla-tive and judicial *707 departments,” and “wholly disconnected from the executive department,” id., at 630, 55 S.Ct., at 875, because “it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will.” Id., at 629, 55 S.Ct., at 874. What we in Humphrey's Ex-ecutor found to be a means of eliminating Presiden-tial control, the Court today considers the “most im-portan[t]” means of assuring Presidential control. Congress, of course, operated under no such illusion when it enacted this statute, describing the “good cause” limitation as “protecting the independent counsel's ability to act independently of the Presi-dent's direct control” since it permits removal only for “misconduct.” H.R.Conf.Rep. 100-452, p. 37 (1987).

Moving on to the presumably “less important” controls that the President retains, the Court notes that no independent counsel may be appointed with-out a specific request from the Attorney General. As I have discussed above, the condition that renders such a request mandatory (inability to find “no reasonable grounds to believe” that further investigation is war-ranted) is so insubstantial that the Attorney General's discretion is severely confined. And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. See 28 U.S.C. § 593(b) (1982 ed., Supp. V). And in any event, the limited power over referral is irrelevant to the question whether, once appointed, the independ-ent counsel exercises executive power free from the President's control. Finally, the Court points out that the Act directs the independent counsel to abide by general Justice Department policy, except when not “possible.” See 28 U.S.C. § 594(f) (1982 ed., Supp. V). **2628 The exception alone shows this to be an empty promise. Even without that, however, one would be hard put to come up with many investiga-tive or prosecutorial “policies” (other than those im-posed by the Constitution or by Congress through law) that are absolute. Almost all investigative and prosecutorial decisions*708 including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted-involve the balancing of innumerable legal and practical con-siderations. Indeed, even political considerations (in the nonpartisan sense) must be considered, as exem-plified by the recent decision of an independent counsel to subpoena the former Ambassador of Can-ada, producing considerable tension in our relations with that country. See N.Y. Times, May 29, 1987, p. A12, col. 1. Another pre-eminently political decision is whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary. The Justice Department and our intelligence agencies are often in disagreement on this point, and the Justice Department does not al-ways win. The present Act even goes so far as spe-cifically to take the resolution of that dispute away from the President and give it to the independent counsel. 28 U.S.C. § 594(a)(6). In sum, the balancing of various legal, practical, and political considera-tions, none of which is absolute, is the very essence of prosecutorial discretion. To take this away is to remove the core of the prosecutorial function, and not merely “some” Presidential control.

As I have said, however, it is ultimately irrele-vant how much the statute reduces Presidential con-trol. The case is over when the Court acknowledges, as it must, that “[i]t is undeniable that the Act reduces the amount of control or supervision that the Attor-ney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.” Ante, at 2621. It effects a revolution in our constitutional jurispru-dence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and con-trol of the President, nonetheless to proceed further to sit in judgment of whether “the President's need to control the exercise of [the independent counsel's] *709 discretion is so central to the functioning of the Executive Branch” as to require complete control, ante, at 2619 (emphasis added), whether the conferral of his powers upon someone else “sufficiently de-prives the President of control over the independent counsel to interfere impermissibly with [his] constitu-tional obligation to ensure the faithful execution of the laws,” ante, at 2619-2620 (emphasis added), and whether “the Act give[s] the Executive Branch suffi-cient control over the independent counsel to ensure that the President is able to perform his constitution-ally assigned duties,” ante, at 2621 (emphasis added). It is not for us to determine, and we have never pre-sumed to determine, how much of the purely execu-tive powers of government must be within the full control of the President. The Constitution prescribes that they all are.

The utter incompatibility of the Court's approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two branches. Is it conceivable that if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legisla-tion, we would inquire whether the matter was “so central to the functioning of the Legislative Branch” as really to require complete control, or whether the statute gives Congress “sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties”? Of course we would have none of that. Once we deter-mined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress. Or to bring the point closer to home, consider a statute giving to **2629 non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts-perhaps “clear error” review, which would be a fair judicial equiva-lent of the Attorney General's “for cause” removal power here. Is there any doubt that we would not pause to inquire whether the matter was “so central to the *710 functioning of the Judicial Branch” as really to require complete control, or whether we retained “sufficient control over the matters to be decided that we are able to perform our constitution-ally assigned duties”? We would say that our “consti-tutionally assigned duties” include complete control over all exercises of the judicial power-or, as the plu-rality opinion said in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58-59, 102 S.Ct. 2858, 2865, 73 L.Ed.2d 598 (1982): “The inexorable command of [Article III] is clear and defi-nite: The judicial power of the United States must be exercised by courts having the attributes prescribed in Art. III.” We should say here that the President's con-stitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.

Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. (prohibiting “employers,” not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national ori-gin). No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those per-taining to the constitutionality of a statute reducing the salaries of the Justices. See United States v. Will, 449 U.S. 200, 211-217, 101 S.Ct. 471, 478-482, 66 L.Ed.2d 392 (1980). A system of separate and coor-dinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, “[i]t is a truism that consti-tutional protections have costs.” Coy v. Iowa, 487 U.S. 1012, 1020, 108 S.Ct. 2798, ----, 101 L.Ed.2d 857 (1988). While the separation of powers may pre-vent us from righting every wrong, it does so in order to ensure that we do not lose liberty.*711 The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to en-force the laws; the executive can decline to prosecute under unconstitutional statutes, cf. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946); and the courts can dismiss malicious prosecu-tions. Second, and ultimately, there is the political check that the people will replace those in the politi-cal branches (the branches more “dangerous to the political rights of the Constitution,” Federalist No. 78, p. 465) who are guilty of abuse. Political pres-sures produced special prosecutors-for Teapot Dome and for Watergate, for example-long before this stat-ute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6; 38 Fed.Reg. 30738 (1973).

The Court has, nonetheless, replaced the clear constitutional prescription that the executive power belongs to the President with a “balancing test.” What are the standards to determine how the balance is to be struck, that is, how much removal of Presi-dential power is too much? Many countries of the world get along with an executive that is much weaker than ours-in fact, entirely dependent upon the continued support of the legislature. Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court's opinion**2630 is that it does not even purport to give an answer. It simply announces, with no analysis, that the ability to control the decision whether to investigate and prosecute the President's closest advisers, and indeed the President himself, is not “so central to the functioning of the Executive Branch” as to be constitutionally required to be within the President's control. Apparently that is so because we say it is so. Having abandoned as the basis for our decision-making the text of Article II that “the executive Power” must be vested in the President, the Court does not even attempt to craft a substitute criterion-a “justiciable standard,” see, e.g., Baker v. Carr, *712 369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962); Coleman v. Miller, 307 U.S. 433, 454-455, 59 S.Ct. 972, 982, 83 L.Ed. 1385 (1939), however remote from the Constitution-that today governs, and in the future will govern, the deci-sion of such questions. Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.

In my view, moreover, even as an ad hoc, stan-dardless judgment the Court's conclusion must be wrong. Before this statute was passed, the President, in taking action disagreeable to the Congress, or an executive officer giving advice to the President or testifying before Congress concerning one of those many matters on which the two branches are from time to time at odds, could be assured that his acts and motives would be adjudged-insofar as the deci-sion whether to conduct a criminal investigation and to prosecute is concerned-in the Executive Branch, that is, in a forum attuned to the interests and the policies of the Presidency. That was one of the natu-ral advantages the Constitution gave to the Presi-dency, just as it gave Members of Congress (and their staffs) the advantage of not being prosecutable for anything said or done in their legislative capacities. See U.S. Const., Art. I, § 6, cl. 1; Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). It is the very object of this legislation to eliminate that assurance of a sympathetic forum. Un-less it can honestly be said that there are “no reason-able grounds to believe” that further investigation is warranted, further investigation must ensue; and the conduct of the investigation, and determination of whether to prosecute, will be given to a person nei-ther selected by nor subject to the control of the President-who will in turn assemble a staff by finding out, presumably, who is willing to put aside whatever else they are doing, for an indeterminate period of time, in order to investigate and prosecute the Presi-dent or a particular named individual in his admini-stration. The prospect is frightening (as I will dis-cuss*713 at some greater length at the conclusion of this opinion) even outside the context of a bitter, in-terbranch political dispute. Perhaps the boldness of the President himself will not be affected-though I am not even sure of that. (How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment pro-ceedings against the President on trivial grounds-or, for that matter, how easy it is for one of the Presi-dent's political foes outside of Congress-simply to trigger a debilitating criminal investigation of the Chief Executive under this law.) But as for the Presi-dent's high-level assistants, who typically have no political base of support, it is as utterly unrealistic to think that they will not be intimidated by this pros-pect, and that their advice to him and their advocacy of his interests before a hostile Congress will not be affected, as it would be to think that the Members of Congress and their staffs would be unaffected by replacing the Speech or Debate Clause with a similar provision. It deeply wounds the President, by sub-stantially reducing the President's ability to protect himself and his staff. That is the whole object of the law, of **2631 course, and I cannot imagine why the Court believes it does not succeed.

Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probabil-ity, “crooks.” And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecu-tion. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur, not merely when the Justice Department in the application of its usual standards believes they are called for, but whenever it *714 cannot be said that there are “no reasonable grounds to believe” they are called for. The statute's highly visible procedures assure, moreover, that unlike most investigations these will be widely known and prominently displayed. Thus, in the 10 years since the institution of the independent counsel was estab-lished by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations. That they could not remotely be described as merely the application of “normal” investigatory and prosecutory standards is demon-strated by, in addition to the language of the statute (“no reasonable grounds to believe”), the following facts: Congress appropriates approximately $50 mil-lion annually for general legal activities, salaries, and expenses of the Criminal Division of the Department of Justice. See 1989 Budget Request of the Depart-ment of Justice, Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., pt. 6, pp. 284-285 (1988) (DOJ Budget Request). This money is used to support “[f]ederal appellate activity,” “[o]rganized crime prosecution,” “[p]ublic integrity” and “[f]raud” mat-ters, “[n]arcotic & dangerous drug prosecution,” “[i]nternal security,” “[g]eneral litigation and legal advice,” “special investigations,” “[p]rosecution sup-port,” “[o]rganized crime drug enforcement,” and “[m]anagement & administration.” Id., at 284. By comparison, between May 1986 and August 1987, four independent counsel (not all of whom were op-erating for that entire period of time) spent almost $5 million (1/10th of the amount annually appropriated to the entire Criminal Division), spending almost $1 million in the month of August 1987 alone. See Washington Post, Oct. 21, 1987, p. A21, col. 5. For fiscal year 1989, the Department of Justice has re-quested $52 million for the entire Criminal Division, DOJ Budget Request 285, and $7 million to support the activities of independent counsel, id., at 25.

In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the *715 independent counsel, and it does substantially affect the balance of powers. That the Court could possibly conclude otherwise demon-strates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President; and the folly of the new system of standardless judicial allo-cation of powers we adopt today.

III
As I indicated earlier, the basic separation-of-powers principles I have discussed are what give life and content to our jurisprudence concerning the President's power to appoint and remove officers. The same result of unconstitutionality is therefore plainly indicated by our case law in these areas.

Article II, § 2, cl. 2, of the Constitution provides as follows:

“[The President] shall nominate, and by and with the Advice and Consent of the the Senate, shall ap-point Ambassadors, other public Ministers and Consuls, **2632 Judges of the supreme Court, and all other Officers of the United States, whose Ap-pointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Because appellant (who all parties and the Court agree is an officer of the United States, ante, at 2608, n. 12) was not appointed by the President with the advice and consent of the Senate, but rather by the Special Division of the United States Court of Ap-peals, her appointment is constitutional only if (1) she is an “inferior” officer within the meaning of the above Clause, and (2) Congress may vest her ap-pointment in a court of law.

As to the first of these inquiries, the Court does not attempt to “decide exactly” what establishes the line between *716 principal and “inferior” officers, but is confident that, whatever the line may be, appel-lant “clearly falls on the ‘inferior officer’ side” of it. Ante, at 2608. The Court gives three reasons: First, she “is subject to removal by a higher Executive Branch official,” namely, the Attorney General. Ibid. Second, she is “empowered by the Act to perform only certain, limited duties.” Ante, at 2608. Third, her office is “limited in jurisdiction” and “limited in ten-ure.” Ibid.

The first of these lends no support to the view that appellant is an inferior officer. Appellant is re-movable only for “good cause” or physical or mental incapacity. 28 U.S.C. § 596(a)(1) (1982 ed., Supp. V). By contrast, most (if not all) principal officers in the Executive Branch may be removed by the Presi-dent at will. I fail to see how the fact that appellant is more difficult to remove than most principal officers helps to establish that she is an inferior officer. And I do not see how it could possibly make any difference to her superior or inferior status that the President's limited power to remove her must be exercised through the Attorney General. If she were removable at will by the Attorney General, then she would be subordinate to him and thus properly designated as inferior; but the Court essentially admits that she is not subordinate. See ante, at 2608. If it were common usage to refer to someone as “inferior” who is subject to removal for cause by another, then one would say that the President is “inferior” to Congress.

The second reason offered by the Court-that ap-pellant performs only certain, limited duties-may be relevant to whether she is an inferior officer, but it mischaracterizes the extent of her powers. As the Court states: “Admittedly, the Act delegates to appel-lant [the] ‘full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.’ ” Ante, at 2608, quoting 28 U.S.C. § 594(a) (1982 ed., Supp. V) (emphasis *717 added).FN2 Moreover, in addition to this general grant of power she is given a broad range of specifically enumerated powers, including a power not even the Attorney General possesses: to “con-tes[t] in court ... any claim of privilege or attempt to withhold evidence on grounds of national security.” § 594(a)(6).FN3 Once all **2633 of this is “admitted,” it seems *718 to me impossible to maintain that appel-lant's authority is so “limited” as to render her an inferior officer. The Court seeks to brush this away by asserting that the independent counsel's power does not include any authority to “formulate policy for the Government or the Executive Branch.” Ante, at 2608. But the same could be said for all officers of the Government, with the single exception of the President. All of them only formulate policy within their respective spheres of responsibility-as does the independent counsel, who must comply with the policies of the Department of Justice only to the ex-tent possible. § 594(f).

FN2. The Court omits the further provision that the independent counsel exercises within her sphere the “full power” of “the Attorney General, [with one minor excep-tion relating to wiretap authorizations] and any other officer or employee of the De-partment of Justice[.]” § 594(a). This is, of course, quite difficult to square with the Court's assertion that appellant is “ ‘inferior’ in rank and authority” to the Attorney Gen-eral. Ante, at 2608.

FN3. The independent counsel's specifically enumerated powers include the following:

“(1) conducting proceedings before grand juries and other investigations;

“(2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that [the] independ-ent counsel deems necessary;

“(3) appealing any decision of a court in any case or proceeding in which [the] in-dependent counsel participates in an offi-cial capacity;

“(4) reviewing all documentary evidence available from any source;

“(5) determining whether to contest the assertion of any testimonial privilege;

“(6) receiving appropriate national secu-rity clearances and, if necessary contest-ing in court ... any claim of privilege or at-tempt to withhold evidence on grounds of national security;

“(7) making applications to any Federal court for a grant of immunity to any wit-ness ... or for warrants, subpoenas, or other court orders, and for purposes of sections 6003, 6004, and 6005 of title 18, exercising the authority vested in a United States attorney or the Attorney General;

“(8) inspecting, obtaining, or using the original or a copy of any tax return ...;

“(9) initiating and conducting prosecu-tions in any court of competent jurisdic-tion, framing and signing indictments, fil-ing informations, and handling all aspects of any case filed in the name of the United States; and

“(10) consulting with the United States Attorney for the district in which the vio-lation was alleged to have occurred.” §§ 594(a)(1)-(10).

In addition, the statute empowers the in-dependent counsel to hire a staff of a size as large as she “deems necessary,” § 594(c), and to enlist and receive “where necessary to perform [her] duties” the as-sistance, personnel and resources of the Department of Justice, § 594(d).

The final set of reasons given by the Court for why the independent counsel clearly is an inferior officer emphasizes the limited nature of her jurisdic-tion and tenure. Taking the latter first, I find nothing unusually limited about the independent counsel's tenure. To the contrary, unlike most high-ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed. See §§ 596(b)(1), (b)(2). This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). But within it she ex-ercises more than the full power of the Attorney Gen-eral. The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxem-bourg is small. And the federal judge who sits in a small district is not for that reason “inferior in rank and authority.” If the mere fragmentation of execu-tive responsibilities into small compartments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law en-forcement officer by dividing up the Attorney Gen-eral's responsibilities among a number of “lesser” functionaries.

*719 More fundamentally, however, it is not clear from the Court's opinion why the factors it dis-cusses-even if applied correctly to the facts of this case-are determinative of the question of inferior of-ficer status. The apparent source of these factors is a statement in United States v. Germaine, 99 U.S. (9 Otto) 508, 511 25 L.Ed. 482 (1879) (discussing United States v. Hartwell, 6 Wall. 385, 393, 18 L.Ed. 830 (1868)), that “the term [officer] embraces the ideas of tenure, duration, emolument, and duties.” See ante, at 2608. Besides the fact that this was dic-tum, it was dictum in a case where the distinguishing characteristics of inferior officers versus superior officers were in no way relevant, but rather only the distinguishing characteristics of an “officer of the United States” (to which the criminal statute at issue applied) as opposed to a mere employee. Rather than erect a theory of who is an inferior officer **2634 on the foundation of such an irrelevancy, I think it pref-erable to look to the text of the Constitution and the division of power that it establishes. These demon-strate, I think, that the independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President). Dictionaries in use at the time of the Constitutional Convention gave the word “inferiour” two meanings which it still bears today: (1) “[l]ower in place, ... station, ... rank of life, ... value or excel-lency,” and (2) “[s]ubordinate.” S. Johnson, Diction-ary of the English Language (6th ed. 1785). In a document dealing with the structure (the constitution) of a government, one would naturally expect the word to bear the latter meaning-indeed, in such a context it would be unpardonably careless to use the word unless a relationship of subordination was in-tended. If what was meant was merely “lower in sta-tion or rank,” one would use instead a term such as “lesser officers.” At the only other point in the Con-stitution at which the word “inferior” appears, it plainly connotes a relationship of subordination. Article III vests the judicial power of the United States in “one supreme Court, and in such inferior Courts as *720 the Congress may from time to time ordain and establish.” U.S. Const., Art. III, § 1 (em-phasis added). In Federalist No. 81, Hamilton pauses to describe the “inferior” courts authorized by Article III as inferior in the sense that they are “subordinate” to the Supreme Court. See id., 6 Wall. at 485, n., 490, n.

That “inferior” means “subordinate” is also con-sistent with what little we know about the evolution of the Appointments Clause. As originally reported to the Committee on Style, the Appointments Clause provided no “exception” from the standard manner of appointment (President with the advice and consent of the Senate) for inferior officers. 2 M. Farrand, Re-cords of the Federal Convention of 1787, pp. 498-499, 599 (rev. ed. 1966). On September 15, 1787, the last day of the Convention before the proposed Con-stitution was signed, in the midst of a host of minor changes that were being considered, Gouverneur Morris moved to add the exceptions clause. Id., at 627. No great debate ensued; the only disagreement was over whether it was necessary at all. Id., at 627-628. Nobody thought that it was a fundamental change, excluding from the President's appointment power and the Senate's confirmation power a cate-gory of officers who might function on their own, outside the supervision of those appointed in the more cumbersome fashion. And it is significant that in the very brief discussion Madison mentions (as in apparent contrast to the “inferior officers” covered by the provision) “Superior Officers.” Id., at 637. Of course one is not a “superior officer” without some supervisory responsibility, just as, I suggest, one is not an “inferior officer” within the meaning of the provision under discussion unless one is subject to supervision by a “superior officer.” It is perfectly obvious, therefore, both from the relative brevity of the discussion this addition received, and from the content of that discussion, that it was intended merely to make clear (what Madison thought already was clear, see id., at 627) that those officers appointed by the President with Senate *721 approval could on their own appoint their subordinates, who would, of course, by chain of command still be under the direct control of the President.

This interpretation is, moreover, consistent with our admittedly sketchy precedent in this area. For example, in United States v. Eaton, 169 U.S. 331, 18 S.Ct. 374, 42 L.Ed. 767 (1898), we held that the ap-pointment by an Executive Branch official other than the President of a “vice-consul,” charged with the duty of temporarily performing the function of the consul, did not violate the Appointments Clause. In doing so, we repeatedly referred to the “vice-consul” as a “subordinate” officer. Id., at 343, 18 S.Ct., at 879. See also United States v. Germaine, supra, 9 Otto at 511 (comparing “inferior” commissioners and **2635 bureau officers to heads of department, de-scribing the former as “mere ... subordinates”) (dicta); United States v. Hartwell, supra, 6 Wall. at 394 (describing clerk appointed by Assistant Treas-urer with approval of Secretary of the Treasury as a “subordinate office [r]”) (dicta). More recently, in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), we noted that the Attorney General's appointment of the Watergate Special Prosecutor was made pursuant to the Attorney Gen-eral's “power to appoint subordinate officers to assist him in the discharge of his duties.” Id., at 694, 94 S.Ct., at 3100 (emphasis added). The Court's citation of Nixon as support for its view that the independent counsel is an inferior officer is simply not supported by a reading of the case. We explicitly stated that the Special Prosecutor was a “subordinate office[r],” ibid., because, in the end, the President or the Attor-ney General could have removed him at any time, if by no other means than amending or revoking the regulation defining his authority. Id., at 696, 94 S.Ct., at 3101. Nor are any of the other cases cited by the Court in support of its view inconsistent with the natural reading that an inferior officer must at least be subordinate to another officer of the United States. In Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880), we upheld the appointment by a court of federal “Judges of Election,” who were charged with various duties involving the overseeing*722 of local congressional elections. Contrary to the Court's asser-tion, see ante, at 2609, we did not specifically find that these officials were inferior officers for purposes of the Appointments Clause, probably because no one had contended that they were principal officers. Nor can the case be said to represent even an assump-tion on our part that they were inferior without being subordinate. The power of assisting in the judging of elections that they were exercising was assuredly not a purely executive power, and if we entertained any assumption it was probably that they, like the mar-shals who assisted them, see Siebold, 100 U.S. (10 Otto), at 380, were subordinate to the courts, see id., 10 Otto at 397. Similarly, in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931), where we held that United States com-missioners were inferior officers, we made plain that they were subordinate to the district courts which appointed them: “The commissioner acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time.” Id., at 354, 51 S.Ct., at 157.

To be sure, it is not a sufficient condition for “in-ferior” officer status that one be subordinate to a principal officer. Even an officer who is subordinate to a department head can be a principal officer. That is clear from the brief exchange following Gou-verneur Morris' suggestion of the addition of the ex-ceptions clause for inferior officers. Madison re-sponded:

“It does not go far enough if it be necessary at all-Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices.” 2 M. Farrand, Records of the Fed-eral Convention, of 1787, p. 627 (rev. ed. 1966) (emphasis added).

But it is surely a necessary condition for inferior officer status that the officer be subordinate to an-other officer.

The independent counsel is not even subordinate to the President. The Court essentially admits as much, noting that “appellant may not be ‘subordi-nate’ to the Attorney General*723 (and the President) insofar as she possesses a degree of independent dis-cretion to exercise the powers delegated to her under the Act.” Ante, at 2608-2609. In fact, there is no doubt about it. As noted earlier, the Act specifically grants her the “full power and independent authority to exercise all investigative and prosecutorial func-tions of the Department of Justice,” 28 U.S.C. § 594(a) (1982 ed., Supp. V), and makes her removable only for “good cause,” a limitation specifi-cally**2636 intended to ensure that she be independ-ent of, not subordinate to, the President and the At-torney General. See H.R.Conf.Rep. No. 100-452, p. 37 (1987).

Because appellant is not subordinate to another officer, she is not an “inferior” officer and her ap-pointment other than by the President with the advice and consent of the Senate is unconstitutional.

IV
I will not discuss at any length why the restric-tions upon the removal of the independent counsel also violate our established precedent dealing with that specific subject. For most of it, I simply refer the reader to the scholarly opinion of Judge Silberman for the Court of Appeals below. See In re Sealed Case, 267 U.S.App.D.C. 178, 838 F.2d 476 (1988). I cannot avoid commenting, however, about the es-sence of what the Court has done to our removal ju-risprudence today.

There is, of course, no provision in the Constitu-tion stating who may remove executive officers, ex-cept the provisions for removal by impeachment. Before the present decision it was established, how-ever, (1) that the President's power to remove princi-pal officers who exercise purely executive powers could not be restricted, see Myers v. United States, 272 U.S. 52, 127, 47 S.Ct. 21, 28-29, 71 L.Ed. 160 (1926), and (2) that his power to remove inferior of-ficers who exercise purely executive powers, and whose appointment Congress had removed from the usual procedure of Presidential appointment with Senate consent, could be restricted, at least where the appointment had been made by *724 an officer of the Executive Branch, see ibid.; United States v. Perkins, 116 U.S. 483, 485, 6 S.Ct. 449, 450, 29 L.Ed. 700 (1886).FN4

FN4. The Court misunderstands my opinion to say that “every officer of the United States exercising any part of [the executive] power must serve at the pleasure of the President and be removable by him at will.” Ante, at 2618-2619, n. 29. Of course, as my discussion here demonstrates, that has never been the law and I do not assert otherwise. What I do assert-and what the Constitution seems plainly to prescribe-is that the Presi-dent must have control over all exercises of the executive power. See supra, at 2606. That requires that he have plenary power to remove principal officers such as the inde-pendent counsel, but it does not require that he have plenary power to remove inferior officers. Since the latter are, as I have de-scribed, subordinate to, i.e., subject to the supervision of, principal officers who (being removable at will) have the President's com-plete confidence, it is enough-at least if they have been appointed by the President or by a principal officer-that they be removable for cause, which would include, of course, the failure to accept supervision. Thus, Perkins is in no way inconsistent with my views.

The Court could have resolved the removal power issue in this case by simply relying upon its erroneous conclusion that the independent counsel was an inferior officer, and then extending our hold-ing that the removal of inferior officers appointed by the Executive can be restricted, to a new holding that even the removal of inferior officers appointed by the courts can be restricted. That would in my view be a considerable and unjustified extension, giving the Executive full discretion in neither the selection nor the removal of a purely executive officer. The course the Court has chosen, however, is even worse.

Since our 1935 decision in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611-which was considered by many at the time the product of an activist, anti-New Deal Court bent on reducing the power of President Franklin Roosevelt-it has been established that the line of permissible re-striction upon removal of principal officers lies at the point at which the powers exercised by those officers are no longer purely executive. Thus, removal restric-tions have been generally regarded as lawful for so-called “independent regulatory *725 agencies,” such as the Federal Trade Commission, see ibid.; 15 U.S.C. § 41, the Interstate Commerce Commission, see 49 U.S.C. § 10301(c) (1982 ed., Supp. IV), and the Consumer Product Safety Commission, see 15 U.S.C. § 2053(a), which engage substantially in what has **2637 been called the “quasi-legislative activ-ity” of rulemaking, and for members of Article I courts, such as the Court of Military Appeals, see 10 U.S.C. § 867(a)(2), who engage in the “quasi-judicial” function of adjudication. It has often been observed, correctly in my view, that the line between “purely executive” functions and “quasi-legislative” or “quasi-judicial” functions is not a clear one or even a rational one. See ante, at 2618-2619; Bowsher v. Synar, 478 U.S. 714, 761, n. 3, 106 S.Ct. 3181, 3206, n. 3 (1986) (WHITE, J., dissenting); FTC v. Ruberoid Co., 343 U.S. 470, 487-488, 72 S.Ct. 800, 810, 96 L.Ed. 1081 (1952) (Jackson, J., dissenting). But at least it permitted the identification of certain officers, and certain agencies, whose functions were entirely within the control of the President. Congress had to be aware of that restriction in its legislation. Today, however, Humphrey's Executor is swept into the dustbin of repudiated constitutional principles. “[O]ur present considered view,” the Court says, “is that the determination of whether the Constitution allows Congress to impose a ‘good cause'-type re-striction on the President's power to remove an offi-cial cannot be made to turn on whether or not that official is classified as ‘purely executive.’ ” Ante, at 2617. What Humphrey's Executor (and presumably Myers ) really means, we are now told, is not that there are any “rigid categories of those officials who may or may not be removed at will by the President,” but simply that Congress cannot “interefere with the President's exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed,’ ” ante, at 2617-2618.

One can hardly grieve for the shoddy treatment given today to Humphrey's Executor, which, after all, accorded the same indignity (with much less justifi-cation) to Chief Justice *726 Taft's opinion 10 years earlier in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926)-gutting, in six quick pages devoid of textual or historical precedent for the novel principle it set forth, a carefully researched and reasoned 70-page opinion. It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution. Humphrey's Executor at least had the decency formally to observe the constitutional prin-ciple that the President had to be the repository of all executive power, see 295 U.S., at 627-628, 55 S.Ct., at 874, which, as Myers carefully explained, neces-sarily means that he must be able to discharge those who do not perform executive functions according to his liking. As we noted in Bowsher, once an officer is appointed “ ‘it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey.’ ” 478 U.S., at 726, 106 S.Ct., at 3188, quoting Synar v. United States, 626 F.Supp. 1374, 1401 (DC 1986) (Scalia, Johnson, and Gasch, JJ.). By contrast, “our present considered view” is simply that any ex-ecutive officer's removal can be restricted, so long as the President remains “able to accomplish his consti-tutional role.” Ante, at 2618. There are now no lines. If the removal of a prosecutor, the virtual embodi-ment of the power to “take care that the laws be faith-fully executed,” can be restricted, what officer's re-moval cannot? This is an open invitation for Con-gress to experiment. What about a special Assistant Secretary of State, with responsibility for one very narrow area of foreign policy, who would not only have to be confirmed by the Senate but could also be removed only pursuant to certain carefully designed restrictions? Could this possibly render the President “[un]able to accomplish his constitutional role”? Or a special Assistant Secretary of Defense for Procure-ment? The possibilities are endless, and the Court does not understand what the separation of powers, what “[a]mbition ... counteract [ing] ambition,” Fed-eralist No. 51, p. 322 (Madison), is all about, if it does not expect Congress to try them. As far as I can discern from the Court's opinion, it is now *727 open season upon the President's removal power for all executive **2638 officers, with not even the superfi-cially principled restriction of Humphrey's Executor as cover. The Court essentially says to the President: “Trust us. We will make sure that you are able to accomplish your constitutional role.” I think the Con-stitution gives the President-and the people-more protection than that.

V
The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective gov-ernment but to preserve individual freedom. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive.

Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation. Justice Robert Jackson, when he was Attorney General under President Franklin Roo-sevelt, described it in a memorable speech to United States Attorneys, as follows:

“There is a most important reason why the prosecutor should have, as nearly as possible, a de-tached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pre-tense of reaching every probable violation of fed-eral law, ten times its present staff will be inade-quate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on *728 any given morning. What every prosecutor is practically re-quired to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

“If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a ques-tion of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prose-cuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or gov-erning group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.” R. Jackson, The Federal Prosecutor, Address Delivered at the Sec-ond Annual Conference of United States Attorneys, April 1, 1940.

Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discre-tion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a reason-able*729 sense of proportion, the President pays the cost in political damage to his administration. If fed-eral prosecutors “pick people that [they] thin[k] **2639 [they] should get, rather than cases that need to be prosecuted,” if they amass many more resources against a particular prominent individual, or against a particular class of political protesters, or against members of a particular political party, than the grav-ity of the alleged offenses or the record of successful prosecutions seems to warrant, the unfairness will come home to roost in the Oval Office. I leave it to the reader to recall the examples of this in recent years. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, “[t]he ingredi-ents which constitute safety in the republican sense are a due dependence on the people, and a due re-sponsibility.” Federalist No. 70, p. 424. The President is directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame, whereas “one of the weightiest objections to a plurality in the executive ... is that it tends to conceal faults and destroy responsibility.” Id., at 427.

That is the system of justice the rest of us are en-titled to, but what of that select class consisting of present or former high-level Executive Branch offi-cials? If an allegation is made against them of any violation of any federal criminal law (except Class B or C misdemeanors or infractions) the Attorney Gen-eral must give it his attention. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are “no reasonable grounds to believe” that further investiga-tion is warranted, a process is set in motion that is not in the full control of persons “dependent on the peo-ple,” and whose flaws cannot be blamed on the President. An independent counsel is selected, and the scope of his or her authority prescribed, by a *730 panel of judges. What if they are politically partisan, as judges have been known to be, and select a prose-cutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prose-cutor could hardly be considered an impeachable offense. So if there is anything wrong with the selec-tion, there is effectively no one to blame. The inde-pendent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are will-ing to lay aside their current careers for an indetermi-nate amount of time, to take on a job that has no prospect of permanence and little prospect for promo-tion. One thing is certain, however: it involves inves-tigating and perhaps prosecuting a particular individ-ual. Can one imagine a less equitable manner of ful-filling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him”? To be sure, the investigation must relate to the area of criminal of-fense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad-and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the Attorney General, where-upon the whole process would recommence and, if there was “reasonable basis to believe” that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same *731 independent counsel. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was **2640 in fact the result-the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration-there would be no one ac-countable to the public to whom the blame could be assigned.

I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attrib-uted to an ordinary Justice Department prosecution-a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders en-visioned when they established a single Chief Execu-tive accountable to the people: the blame can be as-signed to someone who can be punished.

The above described possibilities of irresponsi-ble conduct must, as I say, be considered in judging the constitutional acceptability of this process. But they will rarely occur, and in the average case the threat to fairness is quite different. As described in the brief filed on behalf of three ex-Attorneys Gen-eral from each of the last three administrations:

“The problem is less spectacular but much more worrisome. It is that the institutional environment of the Independent Counsel-specifically, her isola-tion from the Executive Branch and the internal checks and balances it supplies-is designed to heighten, not to check, all of the occupational haz-ards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoc-cupation with the pursuit of one alleged suspect to the exclusion of other interests.” Brief for Edward *732 H. Levi, Griffin B. Bell, and William French Smith as Amici Curiae 11.

It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uni-form application of the law. Perhaps that is not al-ways achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice De-partment, and from the perspective that multiple re-sponsibilities provide. What would normally be re-garded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with noth-ing else to do but to investigate you until investiga-tion is no longer worthwhile-with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to war-rant an indictment. How admirable the constitutional system that provides the means to avoid such a dis-tortion. And how unfortunate the judicial decision that has permitted it.

3

The notion that every violation of law should be prosecuted, including-indeed, especially-every viola-tion by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and **2641 it *733 was with the hope that we would be able to acknowledge and apply such realities that the Consti-tution spared us, by life tenure, the necessity of elec-tion campaigns. I cannot imagine that there are not many thoughtful men and women in Congress who realize that the benefits of this legislation are far out-weighed by its harmful effect upon our system of government, and even upon the nature of justice re-ceived by those men and women who agree to serve in the Executive Branch. But it is difficult to vote not to enact, and even more difficult to vote to repeal, a statute called, appropriately enough, the Ethics in Government Act. If Congress is controlled by the party other than the one to which the President be-longs, it has little incentive to repeal it; if it is con-trolled by the same party, it dare not. By its short-sighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm.

Worse than what it has done, however, is the manner in which it has done it. A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the “totality of the circum-stances” mode of analysis that this Court has in re-cent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much. That opinion, like this one, will not be confined by any rule. We will describe, as we have today (though I hope more accu-rately) the effects of the provision in question, and will authoritatively announce: “The President's need to control the exercise of the [subject officer's] dis-cretion is so central to the functioning of the Execu-tive Branch as to require complete control.” This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that-as the text of *734 the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uni-formly assumed-all purely executive power must be under the control of the President.

The ad hoc approach to constitutional adjudica-tion has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, pre-cisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our sys-tem, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that “[t]he executive Power shall be vested in a President of the United States.”

U.S.Dist.Col.,1988.
Morrison v. Olson
487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569, 56 USLW 4835

130 S.Ct. 3138 (2010)

[3146] Michael A. Carvin, Washington, DC, for petitioners.

Solicitor General Elena Kagan, Washington, DC, for respondent United States.

Jeffrey A. Lamken, Washington, DC, for respondents Public Company Accounting Oversight Board.

David M. Becker, General Counsel, Mark D. Cahn, Deputy General Counsel, Jacob H. Stillman, Solicitor, John W. Avery, Senior Litigation Counsel, Securities and Exchange Commission, Washington, D.C., Elena Kagan, Solicitor General, Counsel of Record, Tony West, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Curtis E. Gannon, Assistant to the Solicitor General, Mark B. Stern, Mark R. Freeman, Attorneys, Department of Justice, Washington, D.C., for respondent.

J. Gordon Seymour, Jacob N. Lesser, Mary I. Peters, Public Company Accounting Oversight Board, Washington, D.C., Jeffrey A. Lamken, Counsel of Record, Robert K. Kry, MoloLamken LLP, Washington, D.C., James R. Doty, Baker Botts LLP, Washington, D.C., for Respondents Public Company Accounting Oversight Board, Bill Gradison, Daniel L. Goelzer, and Charles D. Niemeier.

Kenneth W. Starr, Malibu, CA, Viet D. Dinh, Bancroft Associates PLLC, Washington, DC, Michael A. Carvin, Counsel of Record, Noel J. Francisco, Christian A. Vergonis, Jones Day, Washington, DC, Sam Kazman, Hans Bader, Competitive Enterprise Institute, Washington, DC, for petitioners.

Chief Justice ROBERTS delivered the opinion of the Court.

Our Constitution divided the "powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." INS v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Article II vests "[t]he executive Power ... in a President of the United States of America," who must "take Care that the Laws be faithfully executed." Art. II, § 1, cl. 1; id., § 3. In light of "[t]he impossibility that one man should be able to perform all the great business of the State," the Constitution provides for executive officers to "assist the supreme Magistrate in discharging the duties of his trust." 30 Writings of George Washington 334 (J. Fitzpatrick ed.1939).

Since 1789, the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary. See generally Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). This Court has determined, however, that this authority is not without limit. In Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), we held that Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good [3147] cause. Likewise, in United States v. Perkins, 116 U.S. 483, 21 Ct.Cl. 499, 6 S.Ct. 449, 29 L.Ed. 700 (1886), and Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), the Court sustained similar restrictions on the power of principal executive officers—themselves responsible to the President—to remove their own inferiors. The parties do not ask us to reexamine any of these precedents, and we do not do so.

We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States?

We hold that such multilevel protection from removal is contrary to Article II's vesting of the executive power in the President. The President cannot "take Care that the Laws be faithfully executed" if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is instead committed to another officer, who may or may not agree with the President's determination, and whom the President cannot remove simply because that officer disagrees with him. This contravenes the President's "constitutional obligation to ensure the faithful execution of the laws." Id., at 693, 108 S.Ct. 2597.

I

A

After a series of celebrated accounting debacles, Congress enacted the Sarbanes-Oxley Act of 2002 (or Act), 116 Stat. 745. Among other measures, the Act introduced tighter regulation of the accounting industry under a new Public Company Accounting Oversight Board. The Board is composed of five members, appointed to staggered 5-year terms by the Securities and Exchange Commission. It was modeled on private self-regulatory organizations in the securities industry—such as the New York Stock Exchange—that investigate and discipline their own members subject to Commission oversight. Congress created the Board as a private "nonprofit corporation," and Board members and employees are not considered Government "officer[s] or employee[s]" for statutory purposes. 15 U.S.C. §§ 7211(a), (b). The Board can thus recruit its members and employees from the private sector by paying salaries far above the standard Government pay scale. See §§ 7211(f)(4), 7219.^[1]

Unlike the self-regulatory organizations, however, the Board is a Government-created, Government-appointed entity, with expansive powers to govern an entire industry. Every accounting firm—both foreign and domestic—that participates in auditing public companies under the securities laws must register with the Board, pay it an annual fee, and comply with its rules and oversight. §§ 7211(a), 7212(a), (f), 7213, 7216(a)(1). The Board is charged with enforcing the Sarbanes-Oxley Act, the securities laws, the Commission's rules, its own rules, and professional accounting standards. §§ 7215(b)(1), (c)(4). To this [3148] end, the Board may regulate every detail of an accounting firm's practice, including hiring and professional development, promotion, supervision of audit work, the acceptance of new business and the continuation of old, internal inspection procedures, professional ethics rules, and "such other requirements as the Board may prescribe." § 7213(a)(2)(B).

The Board promulgates auditing and ethics standards, performs routine inspections of all accounting firms, demands documents and testimony, and initiates formal investigations and disciplinary proceedings. §§ 7213-7215 (2006 ed. and Supp. II). The willful violation of any Board rule is treated as a willful violation of the Securities Exchange Act of 1934, 48 Stat. 881, 15 U.S.C. § 78a et seq.—a federal crime punishable by up to 20 years' imprisonment or $25 million in fines ($5 million for a natural person). §§ 78ff(a), 7202(b)(1) (2006 ed.). And the Board itself can issue severe sanctions in its disciplinary proceedings, up to and including the permanent revocation of a firm's registration, a permanent ban on a person's associating with any registered firm, and money penalties of $15 million ($750,000 for a natural person). § 7215(c)(4). Despite the provisions specifying that Board members are not Government officials for statutory purposes, the parties agree that the Board is "part of the Government" for constitutional purposes, Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 397, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), and that its members are "`Officers of the United States'" who "exercis[e] significant authority pursuant to the laws of the United States,"  Buckley v. Valeo, 424 U.S. 1, 125-126, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam) (quoting Art. II, § 2, cl. 2); cf. Brief for Petitioners 9, n. 1; Brief for United States 29, n. 8.

The Act places the Board under the SEC's oversight, particularly with respect to the issuance of rules or the imposition of sanctions (both of which are subject to Commission approval and alteration). §§ 7217(b)-(c). But the individual members of the Board—like the officers and directors of the self-regulatory organizations—are substantially insulated from the Commission's control. The Commission cannot remove Board members at will, but only "for good cause shown," "in accordance with" certain procedures. § 7211(e)(6).

Those procedures require a Commission finding, "on the record" and "after notice and opportunity for a hearing," that the Board member

"(A) has willfully violated any provision of th[e] Act, the rules of the Board, or the securities laws;

"(B) has willfully abused the authority of that member; or

"(C) without reasonable justification or excuse, has failed to enforce compliance with any such provision or rule, or any professional standard by any registered public accounting firm or any associated person thereof." § 7217(d)(3).

Removal of a Board member requires a formal Commission order and is subject to judicial review. See 5 U.S.C. §§ 554(a), 556(a), 557(a), (c)(B); 15 U.S.C. § 78y(a)(1). Similar procedures govern the Commission's removal of officers and directors of the private self-regulatory organizations. See § 78s(h)(4). The parties agree that the Commissioners cannot themselves be removed by the President except under the Humphrey's Executor standard of "inefficiency, neglect of duty, or malfeasance in office," 295 U.S., at 620, 55 S.Ct. 869 (internal quotation marks omitted); see Brief for Petitioners 31; Brief for United States 43; Brief for Respondent Public Company Accounting [3149] Oversight Board 31 (hereinafter PCAOB Brief); Tr. of Oral Arg. 47, and we decide the case with that understanding.

B

Beckstead and Watts, LLP, is a Nevada accounting firm registered with the Board. The Board inspected the firm, released a report critical of its auditing procedures, and began a formal investigation. Beckstead and Watts and the Free Enterprise Fund, a nonprofit organization of which the firm is a member, then sued the Board and its members, seeking (among other things) a declaratory judgment that the Board is unconstitutional and an injunction preventing the Board from exercising its powers. App. 71.

Before the District Court, petitioners argued that the Sarbanes-Oxley Act contravened the separation of powers by conferring wide-ranging executive power on Board members without subjecting them to Presidential control. Id., at 67-68. Petitioners also challenged the Act under the Appointments Clause, which requires "Officers of the United States" to be appointed by the President with the Senate's advice and consent. Art. II, § 2, cl. 2. The Clause provides an exception for "inferior Officers," whose appointment Congress may choose to vest "in the President alone, in the Courts of Law, or in the Heads of Departments." Ibid. Because the Board is appointed by the SEC, petitioners argued that (1) Board members are not "inferior Officers" who may be appointed by "Heads of Departments"; (2) even if they are, the Commission is not a "Departmen[t]"; and (3) even if it is, the several Commissioners (as opposed to the Chairman) are not its "Hea[d]." See App. 68-70. The United States intervened to defend the Act's constitutionality. Both sides moved for summary judgment; the District Court determined that it had jurisdiction and granted summary judgment to respondents. App. to Pet. for Cert. 110a-117a.

A divided Court of Appeals affirmed. 537 F.3d 667 (C.A.D.C.2008). It agreed that the District Court had jurisdiction over petitioners' claims. Id., at 671. On the merits, the Court of Appeals recognized that the removal issue was "a question of first impression," as neither that court nor this one "ha[d] considered a situation where a restriction on removal passes through two levels of control." Id., at 679. It ruled that the dual restraints on Board members' removal are permissible because they do not "render the President unable to perform his constitutional duties." Id., at 683. The majority reasoned that although the President "does not directly select or supervise the Board's members," id., at 681, the Board is subject to the comprehensive control of the Commission, and thus the President's influence over the Commission implies a constitutionally sufficient influence over the Board as well. Id., at 682-683. The majority also held that Board members are inferior officers subject to the Commission's direction and supervision, id., at 672-676, and that their appointment is otherwise consistent with the Appointments Clause, id., at 676-678.

Judge Kavanaugh dissented. He agreed that the case was one of first impression, id., at 698, but argued that "the double for-cause removal provisions in the [Act] ... combine to eliminate any meaningful Presidential control over the [Board]," id., at 697. Judge Kavanaugh also argued that Board members are not effectively supervised by the Commission and thus cannot be inferior officers under the Appointments Clause. Id., at 709-712.

We granted certiorari. 556 U.S. ___, 129 S.Ct. 2378, 173 L.Ed.2d 1291 (2009).

[3150] II

We first consider whether the District Court had jurisdiction. We agree with both courts below that the statutes providing for judicial review of Commission action did not prevent the District Court from considering petitioners' claims.

The Sarbanes-Oxley Act empowers the Commission to review any Board rule or sanction. See 15 U.S.C. §§ 7217(b)(2)-(4), (c)(2). Once the Commission has acted, aggrieved parties may challenge "a final order of the Commission" or "a rule of the Commission" in a court of appeals under § 78y, and "[n]o objection ... may be considered by the court unless it was urged before the Commission or there was reasonable ground for failure to do so." §§ 78y(a)(1), (b)(1), (c)(1).

The Government reads § 78y as an exclusive route to review. But the text does not expressly limit the jurisdiction that other statutes confer on district courts. See, e.g., 28 U.S.C. §§ 1331, 2201. Nor does it do so implicitly. Provisions for agency review do not restrict judicial review unless the "statutory scheme" displays a "fairly discernible" intent to limit jurisdiction, and the claims at issue "are of the type Congress intended to be reviewed within th[e] statutory structure." Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 212, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) (internal quotation marks omitted). Generally, when Congress creates procedures "designed to permit agency expertise to be brought to bear on particular problems," those procedures "are to be exclusive." Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 420, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965). But we presume that Congress does not intend to limit jurisdiction if "a finding of preclusion could foreclose all meaningful judicial review"; if the suit is "wholly collateral to a statute's review provisions"; and if the claims are "outside the agency's expertise." Thunder Basin, supra, at 212-213, 114 S.Ct. 771 (internal quotation marks omitted). These considerations point against any limitation on review here.

We do not see how petitioners could meaningfully pursue their constitutional claims under the Government's theory. Section 78y provides only for judicial review of Commission action, and not every Board action is encapsulated in a final Commission order or rule.

The Government suggests that petitioners could first have sought Commission review of the Board's "auditing standards, registration requirements, or other rules." Brief for United States 16. But petitioners object to the Board's existence, not to any of its auditing standards. Petitioners' general challenge to the Board is "collateral" to any Commission orders or rules from which review might be sought. Cf. McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 491-492, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). Requiring petitioners to select and challenge a Board rule at random is an odd procedure for Congress to choose, especially because only new rules, and not existing ones, are subject to challenge. See 15 U.S.C. §§ 78s(b)(2), 78y(a)(1), 7217(b)(4).

Alternatively, the Government advises petitioners to raise their claims by appealing a Board sanction. Brief for United States 16-17. But the investigation of Beckstead and Watts produced no sanction, see id., at 7, n. 5; Reply Brief for Petitioners 29, n. 11 (hereinafter Reply Brief), and an uncomplimentary inspection report is not subject to judicial review, see § 7214(h)(2). So the Government proposes that Beckstead and Watts incur a sanction (such as a sizable fine) by ignoring Board requests for documents and testimony. [3151] Brief for United States 17. If the Commission then affirms, the firm will win access to a court of appeals—and severe punishment should its challenge fail. We normally do not require plaintiffs to "bet the farm ... by taking the violative action" before "testing the validity of the law," MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007); accord, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and we do not consider this a "meaningful" avenue of relief. Thunder Basin, 510 U.S., at 212, 114 S.Ct. 771.

Petitioners' constitutional claims are also outside the Commission's competence and expertise. In Thunder Basin, the petitioner's primary claims were statutory; "at root ... [they] ar[o]se under the Mine Act and f[e]ll squarely within the [agency's] expertise," given that the agency had "extensive experience" on the issue and had "recently addressed the precise ... claims presented." Id., at 214-215, 114 S.Ct. 771. Likewise, in United States v. Ruzicka, 329 U.S. 287, 67 S.Ct. 207, 91 L.Ed. 290 (1946), on which the Government relies, we reserved for the agency fact-bound inquiries that, even if "formulated in constitutional terms," rested ultimately on "factors that call for [an] understanding of the milk industry," to which the Court made no pretensions. Id., at 294, 67 S.Ct. 207. No similar expertise is required here, and the statutory questions involved do not require "technical considerations of [agency] policy." Johnson v. Robison, 415 U.S. 361, 373, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). They are instead standard questions of administrative law, which the courts are at no disadvantage in answering.

We therefore conclude that § 78y did not strip the District Court of jurisdiction over these claims, which are properly presented for our review.^[2]

III

We hold that the dual for-cause limitations on the removal of Board members contravene the Constitution's separation of powers.

A

The Constitution provides that "[t]he executive Power shall be vested in a President of the United States of America." Art. II, § 1, cl. 1. As Madison stated on the floor of the First Congress, "if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws." 1 Annals of Cong. 463 (1789).

The removal of executive officers was discussed extensively in Congress when the first executive departments were created. The view that "prevailed, as most [3152] consonant to the text of the Constitution" and "to the requisite responsibility and harmony in the Executive Department," was that the executive power included a power to oversee executive officers through removal; because that traditional executive power was not "expressly taken away, it remained with the President." Letter from James Madison to Thomas Jefferson (June 30, 1789), 16 Documentary History of the First Federal Congress 893 (2004). "This Decision of 1789 provides contemporaneous and weighty evidence of the Constitution's meaning since many of the Members of the First Congress had taken part in framing that instrument." Bowsher v. Synar, 478 U.S. 714, 723-724, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (internal quotation marks omitted). And it soon became the "settled and well understood construction of the Constitution." Ex parte Hennen, 38 U.S. 230, 13 Pet. 230, 259, 10 L.Ed. 138 (1839).

The landmark case of Myers v. United States reaffirmed the principle that Article II confers on the President "the general administrative control of those executing the laws." 272 U.S., at 164, 47 S.Ct. 21. It is his responsibility to take care that the laws be faithfully executed. The buck stops with the President, in Harry Truman's famous phrase. As we explained in Myers, the President therefore must have some "power of removing those for whom he can not continue to be responsible." Id., at 117, 47 S.Ct. 21.

Nearly a decade later in Humphrey's Executor, this Court held that Myers did not prevent Congress from conferring good-cause tenure on the principal officers of certain independent agencies. That case concerned the members of the Federal Trade Commission, who held 7-year terms and could not be removed by the President except for "`inefficiency, neglect of duty, or malfeasance in office.'" 295 U.S., at 620, 55 S.Ct. 869 (quoting 15 U.S.C. § 41). The Court distinguished Myers on the ground that Myers concerned "an officer [who] 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 subordinate and aid he is." 295 U.S., at 627, 55 S.Ct. 869. By contrast, the Court characterized the FTC as "quasi-legislative and quasi-judicial" rather than "purely executive," and held that Congress could require it "to act... independently of executive control." Id., at 627-629, 55 S.Ct. 869. Because "one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will," the Court held that Congress had power to "fix the period during which [the Commissioners] shall continue in office, and to forbid their removal except for cause in the meantime." Id., at 629, 55 S.Ct. 869.

Humphrey's Executor did not address the removal of inferior officers, whose appointment Congress may vest in heads of departments. If Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal. See Myers, supra, at 119, 127, 47 S.Ct. 21; Hennen, supra, at 259-260, 38 U.S. 230. This Court has upheld for-cause limitations on that power as well.

In Perkins, a naval cadet-engineer was honorably discharged from the Navy because his services were no longer required. 116 U.S. 483, 21 Ct.Cl. 499, 6 S.Ct. 449, 29 L.Ed. 700. He brought a claim for his salary under statutes barring his peacetime discharge except by a court-martial or by the Secretary of the Navy "for misconduct." Rev. Stat. §§ 1229, 1525. This Court adopted verbatim the reasoning of the Court of Claims, which had held that when Congress "`vests the appointment of [3153] inferior officers in the heads of Departments[,] it may limit and restrict the power of removal as it deems best for the public interest.'" 116 U.S., at 485, 6 S.Ct. 449. Because Perkins had not been "`dismissed for misconduct ... [or upon] the sentence of a court-martial,'" the Court agreed that he was "`still in office and ... entitled to [his] pay.'" Ibid.^[3]

We again considered the status of inferior officers in Morrison. That case concerned the Ethics in Government Act, which provided for an independent counsel to investigate allegations of crime by high executive officers. The counsel was appointed by a special court, wielded the full powers of a prosecutor, and was removable by the Attorney General only "`for good cause.'" 487 U.S., at 663, 108 S.Ct. 2597 (quoting 28 U.S.C. § 596(a)(1)). We recognized that the independent counsel was undoubtedly an executive officer, rather than "`quasi-legislative'" or "`quasi-judicial,'" but we stated as "our present considered view" that Congress had power to impose good-cause restrictions on her removal. 487 U.S., at 689-691, 108 S.Ct. 2597. The Court noted that the statute "g[a]ve the Attorney General," an officer directly responsible to the President and "through [whom]" the President could act, "several means of supervising or controlling" the independent counsel—"[m]ost importantly... the power to remove the counsel for good cause." Id., at 695-696, 108 S.Ct. 2597 (internal quotation marks omitted). Under those circumstances, the Court sustained the statute. Morrison did not, however, address the consequences of more than one level of good-cause tenure—leaving the issue, as both the court and dissent below recognized, "a question of first impression" in this Court. 537 F.3d, at 679; see id., at 698, 108 S.Ct. 2597 (dissenting opinion).

B

As explained, we have previously upheld limited restrictions on the President's removal power. In those cases, however, only one level of protected tenure separated the President from an officer exercising executive power. It was the President— or a subordinate he could remove at will— who decided whether the officer's conduct merited removal under the good-cause standard.

The Act before us does something quite different. It not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested instead in other tenured officers—the Commissioners—none of whom is subject to the President's direct control. The result is a Board that is not accountable to the President, and a President who is not responsible for the Board.

The added layer of tenure protection makes a difference. Without a layer of insulation between the Commission and the Board, the Commission could remove a [3154] Board member at any time, and therefore would be fully responsible for what the Board does. The President could then hold the Commission to account for its supervision of the Board, to the same extent that he may hold the Commission to account for everything else it does.

A second level of tenure protection changes the nature of the President's review. Now the Commission cannot remove a Board member at will. The President therefore cannot hold the Commission fully accountable for the Board's conduct, to the same extent that he may hold the Commission accountable for everything else that it does. The Commissioners are not responsible for the Board's actions. They are only responsible for their own determination of whether the Act's rigorous good-cause standard is met. And even if the President disagrees with their determination, he is powerless to intervene— unless that determination is so unreasonable as to constitute "inefficiency, neglect of duty, or malfeasance in office." Humphrey's Executor, 295 U.S., at 620, 55 S.Ct. 869 (internal quotation marks omitted).

This novel structure does not merely add to the Board's independence, but transforms it. Neither the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the Board. The President is stripped of the power our precedents have preserved, and his ability to execute the laws—by holding his subordinates accountable for their conduct—is impaired.

That arrangement is contrary to Article II's vesting of the executive power in the President. Without the ability to oversee the Board, or to attribute the Board's failings to those whom he can oversee, the President is no longer the judge of the Board's conduct. He is not the one who decides whether Board members are abusing their offices or neglecting their duties. He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member's breach of faith. This violates the basic principle that the President "cannot delegate ultimate responsibility or the active obligation to supervise that goes with it," because Article II "makes a single President responsible for the actions of the Executive Branch." Clinton v. Jones, 520 U.S. 681, 712-713, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (BREYER, J., concurring in judgment).^[4]

Indeed, if allowed to stand, this dispersion of responsibility could be multiplied. If Congress can shelter the bureaucracy behind two layers of good-cause tenure, why not a third? At oral argument, the Government was unwilling to concede that even five layers between the President and the Board would be too many. Tr. of Oral Arg. 47-48. The officers of such an agency—safely encased within a Matryoshka doll of tenure protections—would be immune from Presidential oversight, even as they exercised power in the people's name.

[3155] Perhaps an individual President might find advantages in tying his own hands. But the separation of powers does not depend on the views of individual Presidents, see Freytag v. Commissioner, 501 U.S. 868, 879-880, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), nor on whether "the encroached-upon branch approves the encroachment," New York v. United States, 505 U.S. 144, 182, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). The President can always choose to restrain himself in his dealings with subordinates. He cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own.

The diffusion of power carries with it a diffusion of accountability. The people do not vote for the "Officers of the United States." Art. II, § 2, cl. 2. They instead look to the President to guide the "assistants or deputies ... subject to his superintendence." The Federalist No. 72, p. 487 (J. Cooke ed.1961) (A. Hamilton). Without a clear and effective chain of command, the public cannot "determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall." Id., No. 70, at 476 (same). That is why the Framers sought to ensure that "those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community." 1 Annals of Cong., at 499 (J. Madison).

By granting the Board executive power without the Executive's oversight, this Act subverts the President's ability to ensure that the laws are faithfully executed—as well as the public's ability to pass judgment on his efforts. The Act's restrictions are incompatible with the Constitution's separation of powers.

C

Respondents and the dissent resist this conclusion, portraying the Board as "the kind of practical accommodation between the Legislature and the Executive that should be permitted in a `workable government.'" Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) (MWAA) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring)); see, e.g., post, at 6 (opinion of BREYER, J.). According to the dissent, Congress may impose multiple levels of for-cause tenure between the President and his subordinates when it "rests agency independence upon the need for technical expertise." Post, at 18. The Board's mission is said to demand both "technical competence" and "apolitical expertise," and its powers may only be exercised by "technical professional experts." Post, at 18 (internal quotation marks omitted). In this respect the statute creating the Board is, we are told, simply one example of the "vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different problems, [that] provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives." Post, at 8.

No one doubts Congress's power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President? The Constitution requires that a President chosen [3156] by the entire Nation oversee the execution of the laws. And the "`fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution,'" for "`[c]onvenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.'" Bowsher, 478 U.S., at 736, 106 S.Ct. 3181 (quoting Chadha, 462 U.S., at 944, 103 S.Ct. 2764).

One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people. This concern is largely absent from the dissent's paean to the administrative state.

For example, the dissent dismisses the importance of removal as a tool of supervision, concluding that the President's "power to get something done" more often depends on "who controls the agency's budget requests and funding, the relationships between one agency or department and another, ... purely political factors (including Congress' ability to assert influence)," and indeed whether particular unelected officials support or "resist" the President's policies. Post, at 11, 13 (emphasis deleted). The Framers did not rest our liberties on such bureaucratic minutiae. As we said in Bowsher, supra, at 730, 106 S.Ct. 3181, "[t]he separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress."

In fact, the multilevel protection that the dissent endorses "provides a blueprint for extensive expansion of the legislative power." MWAA, supra, at 277, 111 S.Ct. 2298. In a system of checks and balances, "[p]ower abhors a vacuum," and one branch's handicap is another's strength. 537 F.3d, at 695, n. 4 (Kavanaugh, J., dissenting) (internal quotation marks omitted). "Even when a branch does not arrogate power to itself," therefore, it must not "impair another in the performance of its constitutional duties." Loving v. United States, 517 U.S. 748, 757, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996).^[5] Congress has plenary control over the salary, duties, and even existence of executive offices. Only Presidential oversight can counter its influence. That is why the Constitution vests certain powers in the President that "the Legislature has no right to diminish or modify." 1 Annals of Cong., at 463 (J. Madison).^[6]

[3157] The Framers created a structure in which "[a] dependence on the people" would be the "primary control on the government." The Federalist No. 51, at 349 (J. Madison). That dependence is maintained, not just by "parchment barriers," id., No. 48, at 333 (same), but by letting "[a]mbition ... counteract ambition," giving each branch "the necessary constitutional means, and personal motives, to resist encroachments of the others," id., No. 51, at 349. A key "constitutional means" vested in the President—perhaps the key means—was "the power of appointing, overseeing, and controlling those who execute the laws." 1 Annals of Cong., at 463. And while a government of "opposite and rival interests" may sometimes inhibit the smooth functioning of administration, The Federalist No. 51, at 349, "[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty." Bowsher, supra, at 730, 106 S.Ct. 3181.

Calls to abandon those protections in light of "the era's perceived necessity," New York, 505 U.S., at 187, 112 S.Ct. 2408, are not unusual. Nor is the argument from bureaucratic expertise limited only to the field of accounting. The failures of accounting regulation may be a "pressing national problem," but "a judiciary that licensed extraconstitutional government with each issue of comparable gravity would, in the long run, be far worse." Id., at 187-188, 112 S.Ct. 2408. Neither respondents nor the dissent explains why the Board's task, unlike so many others, requires more than one layer of insulation from the President—or, for that matter, why only two. The point is not to take issue with for-cause limitations in general; we do not do that. The question here is far more modest. We deal with the unusual situation, never before addressed by the Court, of two layers of for-cause tenure. And though it may be criticized as "elementary arithmetical logic," post, at 23, two layers are not the same as one.

The President has been given the power to oversee executive officers; he is not limited, as in Harry Truman's lament, to "persuad[ing]" his unelected subordinates "to do what they ought to do without persuasion." Post, at 11 (internal quotation marks omitted). In its pursuit of a "workable government," Congress cannot reduce the Chief Magistrate to a cajoler-in-chief.

D

The United States concedes that some constraints on the removal of inferior executive officers might violate the Constitution. See Brief for United States 47. It contends, however, that the removal restrictions at issue here do not.

To begin with, the Government argues that the Commission's removal power over the Board is "broad," and could be construed as broader still, if necessary to avoid invalidation. See, e.g., id., at 51, and n. 19; cf. PCAOB Brief 22-23. But the Government does not contend that simple disagreement with the Board's policies or priorities could constitute "good cause" for its removal. See Tr. of Oral Arg. 41-43, 45-46. Nor do our precedents suggest as much. Humphrey's Executor, for example, rejected a removal premised on a lack of agreement "`on either the policies or the administering of the Federal Trade Commission,'" because the FTC was designed to be "`independent in character,'" "free from `political domination or control,'" and not "`subject to anybody in the [3158] government'" or "`to the orders of the President.'" 295 U.S., at 619, 625, 55 S.Ct. 869. Accord, Morrison, 487 U.S., at 693, 108 S.Ct. 2597 (noting that "the congressional determination to limit the removal power of the Attorney General was essential... to establish the necessary independence of the office"); Wiener v. United States, 357 U.S. 349, 356, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958) (describing for-cause removal as "involving the rectitude" of an officer). And here there is judicial review of any effort to remove Board members, see 15 U.S.C. § 78y(a)(1), so the Commission will not have the final word on the propriety of its own removal orders. The removal restrictions set forth in the statute mean what they say.

Indeed, this case presents an even more serious threat to executive control than an "ordinary" dual for-cause standard. Congress enacted an unusually high standard that must be met before Board members may be removed. A Board member cannot be removed except for willful violations of the Act, Board rules, or the securities laws; willful abuse of authority; or unreasonable failure to enforce compliance—as determined in a formal Commission order, rendered on the record and after notice and an opportunity for a hearing. § 7217(d)(3); see § 78y(a). The Act does not even give the Commission power to fire Board members for violations of other laws that do not relate to the Act, the securities laws, or the Board's authority. The President might have less than full confidence in, say, a Board member who cheats on his taxes; but that discovery is not listed among the grounds for removal under § 7217(d)(3).^[7]

The rigorous standard that must be met before a Board member may be removed was drawn from statutes concerning private organizations like the New York Stock Exchange. Cf. §§ 78s(h)(4), 7217(d)(3). While we need not decide the question here, a removal standard appropriate for limiting Government control over private bodies may be inappropriate for officers wielding the executive power of the United States.

Alternatively, respondents portray the Act's limitations on removal as irrelevant, because—as the Court of Appeals held— the Commission wields "at-will removal power over Board functions if not Board members." 537 F.3d, at 683 (emphasis added); accord, Brief for United States 27-28; PCAOB Brief 48. The Commission's general "oversight and enforcement authority over the Board," § 7217(a), is said to "blun[t] the constitutional impact of for-cause removal," 537 F.3d, at 683, and to leave the President no worse off than "if Congress had lodged the Board's functions in the SEC's own staff," PCAOB Brief 15.

Broad power over Board functions is not equivalent to the power to remove Board members. The Commission may, for example, approve the Board's budget, § 7219(b), issue binding regulations, §§ 7202(a), 7217(b)(5), relieve the Board of authority, § 7217(d)(1), amend Board sanctions, § 7217(c), or enforce Board rules on its own, §§ 7202(b)(1), (c). But altering the budget or powers of an agency as a whole is a problematic way to control an [3159] inferior officer. The Commission cannot wield a free hand to supervise individual members if it must destroy the Board in order to fix it.

Even if Commission power over Board activities could substitute for authority over its members, we would still reject respondents' premise that the Commission's power in this regard is plenary. As described above, the Board is empowered to take significant enforcement actions, and does so largely independently of the Commission. See supra, at 3-4. Its powers are, of course, subject to some latent Commission control. See supra, at 4-5. But the Act nowhere gives the Commission effective power to start, stop, or alter individual Board investigations, executive activities typically carried out by officials within the Executive Branch.

The Government and the dissent suggest that the Commission could govern and direct the Board's daily exercise of prosecutorial discretion by promulgating new SEC rules, or by amending those of the Board. Brief for United States 27; post, at 15. Enacting general rules through the required notice and comment procedures is obviously a poor means of micromanaging the Board's affairs. See §§ 78s(c), 7215(b)(1), 7217(b)(5); cf. 5 U.S.C. § 553, 15 U.S.C. § 7202(a), PCAOB Brief 24, n. 6.^[8] So the Government offers another proposal, that the Commission require the Board by rule to "secure SEC approval for any actions that it now may take itself." Brief for United States 27. That would surely constitute one of the "limitations upon the activities, functions, and operations of the Board" that the Act forbids, at least without Commission findings equivalent to those required to fire the Board instead. § 7217(d)(2). The Board thus has significant independence in determining its priorities and intervening in the affairs of regulated firms (and the lives of their associated persons) without Commission preapproval or direction.

Finally, respondents suggest that our conclusion is contradicted by the past practice of Congress. But the Sarbanes-Oxley Act is highly unusual in committing substantial executive authority to officers protected by two layers of for-cause removal—including at one level a sharply circumscribed definition of what constitutes "good cause," and rigorous procedures that must be followed prior to removal.

The parties have identified only a handful of isolated positions in which inferior officers might be protected by two levels of good-cause tenure. See, e.g., PCAOB Brief 43. As Judge Kavanaugh noted in dissent below:

"Perhaps the most telling indication of the severe constitutional problem with the PCAOB is the lack of historical precedent for this entity. Neither the majority opinion nor the PCAOB nor the United States as intervenor has located any historical analogues for this novel structure. They have not identified any independent agency other than the PCAOB that is appointed by and removable only for cause by another independent agency." 537 F.3d, at 669.

The dissent here suggests that other such positions might exist, and complains that we do not resolve their status in this opinion. Post, at 23-31. The dissent itself, however, stresses the very size and [3160] variety of the Federal Government, see post, at 7-8, and those features discourage general pronouncements on matters neither briefed nor argued here. In any event, the dissent fails to support its premonitions of doom; none of the positions it identifies are similarly situated to the Board. See post, at 28-31.

For example, many civil servants within independent agencies would not qualify as "Officers of the United States," who "exercis[e] significant authority pursuant to the laws of the United States," Buckley, 424 U.S., at 126, 96 S.Ct. 612.^[9] The parties here concede that Board members are executive "Officers," as that term is used in the Constitution. See supra, at 4; see also Art. II, § 2, cl. 2. We do not decide the status of other Government employees, nor do we decide whether "lesser functionaries subordinate to officers of the United States" must be subject to the same sort of control as those who exercise "significant authority pursuant to the laws." Buckley, supra, at 126, and n. 162, 96 S.Ct. 612.

Nor do the employees referenced by the dissent enjoy the same significant and unusual protections from Presidential oversight as members of the Board. Senior or policymaking positions in government may be excepted from the competitive service to ensure Presidential control, see 5 U.S.C. §§ 2302(a)(2)(B), 3302, 7511(b)(2), and members of the Senior Executive Service may be reassigned or reviewed by agency heads (and entire agencies may be excluded from that Service by the President), see, e.g., §§ 3132(c), 3395(a), 4312(d), 4314(b)(3), (c)(3); cf. § 2302(a)(2)(B)(ii). While the full extent of that authority is not before us, any such authority is of course wholly absent with respect to the Board. Nothing in our opinion, therefore, should be read to cast doubt on the use of what is colloquially known as the civil service system within independent agencies.^[10]

Finally, the dissent wanders far afield when it suggests that today's opinion might increase the President's authority to remove military officers. Without expressing any view whatever on the scope of that authority, it is enough to note that we see little analogy between our Nation's armed services and the Public Company Accounting Oversight Board. Military officers are broadly subject to Presidential control through the chain of command and through the President's powers as Commander in Chief. Art. II, § 2, cl. 1; see, e.g., 10 U.S.C. §§ 162, 164(g). The President and his subordinates may also convene boards of inquiry or courts-martial to hear claims of misconduct or poor performance by those officers. See, e.g., §§ 822(a)(1), 823(a)(1), 892(3), 933-934, [3161] 1181-1185. Here, by contrast, the President has no authority to initiate a Board member's removal for cause.

There is no reason for us to address whether these positions identified by the dissent, or any others not at issue in this case, are so structured as to infringe the President's constitutional authority. Nor is there any substance to the dissent's concern that the "work of all these various officials" will "be put on hold." Post, at 31. As the judgment in this case demonstrates, restricting certain officers to a single level of insulation from the President affects the conditions under which those officers might some day be removed, and would have no effect, absent a congressional determination to the contrary, on the validity of any officer's continuance in office. The only issue in this case is whether Congress may deprive the President of adequate control over the Board, which is the regulator of first resort and the primary law enforcement authority for a vital sector of our economy. We hold that it cannot.

IV

Petitioners' complaint argued that the Board's "freedom from Presidential oversight and control" rendered it "and all power and authority exercised by it" in violation of the Constitution. App. 46. We reject such a broad holding. Instead, we agree with the Government that the unconstitutional tenure provisions are severable from the remainder of the statute.

"Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem," severing any "problematic portions while leaving the remainder intact." Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 328-329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006). Because "[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions," Champlin Refining Co. v. Corporation Comm'n of Okla., 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1932), the "normal rule" is "that partial, rather than facial, invalidation is the required course," Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). Putting to one side petitioners' Appointments Clause challenges (addressed below), the existence of the Board does not violate the separation of powers, but the substantive removal restrictions imposed by §§ 7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the power of appointment. See, e.g., Sampson v. Murray, 415 U.S. 61, 70, n. 17, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Myers, 272 U.S., at 119, 47 S.Ct. 21; Ex parte Hennen, 13 Pet., at 259-260. Concluding that the removal restrictions are invalid leaves the Board removable by the Commission at will, and leaves the President separated from Board members by only a single level of good-cause tenure. The Commission is then fully responsible for the Board's actions, which are no less subject than the Commission's own functions to Presidential oversight.

The Sarbanes-Oxley Act remains "`fully operative as a law'" with these tenure restrictions excised. New York, 505 U.S., at 186, 112 S.Ct. 2408 (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987)). We therefore must sustain its remaining provisions "[u]nless it is evident that the Legislature would not have enacted those provisions . . . independently of that which is [invalid]." Ibid. (internal quotation marks omitted). Though this inquiry can sometimes be "elusive," Chadha, 462 U.S., at 932, 103 S.Ct. 2764, the answer here seems clear: The remaining [3162] provisions are not "incapable of functioning independently," Alaska Airlines, 480 U.S., at 684, 107 S.Ct. 1476, and nothing in the statute's text or historical context makes it "evident" that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will. Ibid.; see also Ayotte, supra, at 330, 126 S.Ct. 961.

It is true that the language providing for good-cause removal is only one of a number of statutory provisions that, working together, produce a constitutional violation. In theory, perhaps, the Court might blue-pencil a sufficient number of the Board's responsibilities so that its members would no longer be "Officers of the United States." Or we could restrict the Board's enforcement powers, so that it would be a purely recommendatory panel. Or the Board members could in future be made removable by the President, for good cause or at will. But such editorial freedom—far more extensive than our holding today—belongs to the Legislature, not the Judiciary. Congress of course remains free to pursue any of these options going forward.

V

Petitioners raise three more challenges to the Board under the Appointments Clause. None has merit.

First, petitioners argue that Board members are principal officers requiring Presidential appointment with the Senate's advice and consent. We held in Edmond v. United States, 520 U.S. 651, 662-663, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997), that "[w]hether one is an `inferior' officer depends on whether he has a superior," and that "`inferior officers' are officers whose work is directed and supervised at some level" by other officers appointed by the President with the Senate's consent. In particular, we noted that "[t]he power to remove officers" at will and without cause "is a powerful tool for control" of an inferior. Id., at 664, 117 S.Ct. 1573. As explained above, the statutory restrictions on the Commission's power to remove Board members are unconstitutional and void. Given that the Commission is properly viewed, under the Constitution, as possessing the power to remove Board members at will, and given the Commission's other oversight authority, we have no hesitation in concluding that under Edmond the Board members are inferior officers whose appointment Congress may permissibly vest in a "Hea[d] of Departmen[t]."

But, petitioners argue, the Commission is not a "Departmen[t]" like the "Executive departments" (e.g., State, Treasury, Defense) listed in 5 U.S.C. § 101. In Freytag, 501 U.S., at 887, n. 4, 111 S.Ct. 2631, we specifically reserved the question whether a "principal agenc[y], such as . . . the Securities and Exchange Commission," is a "Departmen[t]" under the Appointments Clause. Four Justices, however, would have concluded that the Commission is indeed such a "Departmen[t]," see id., at 918, 111 S.Ct. 2631 (SCALIA, J., concurring in part and concurring in judgment), because it is a "free-standing, self-contained entity in the Executive Branch," id., at 915, 111 S.Ct. 2631.

Respondents urge us to adopt this reasoning as to those entities not addressed by our opinion in Freytag, see Brief for United States 37-39; PCAOB Brief 30-33, and we do. Respondents' reading of the Appointments Clause is consistent with the common, near-contemporary definition of a "department" as a "separate allotment or part of business; a distinct province, in which a class of duties are allotted to a particular person." 1 N. Webster, American Dictionary of the English Language [3163] (1828) (def.2) (1995 facsimile ed.). It is also consistent with the early practice of Congress, which in 1792 authorized the Postmaster General to appoint "an assistant, and deputy postmasters, at all places where such shall be found necessary," § 3, 1 Stat. 234—thus treating him as the "Hea[d] of [a] Departmen[t]" without the title of Secretary or any role in the President's Cabinet. And it is consistent with our prior cases, which have never invalidated an appointment made by the head of such an establishment. See Freytag, supra, at 917, 111 S.Ct. 2631; cf. Burnap v. United States, 252 U.S. 512, 515, 40 S.Ct. 374, 64 L.Ed. 692 (1920); United States v. Germaine, 99 U.S. 508, 511, 25 L.Ed. 482 (1879). Because the Commission is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component, it constitutes a "Departmen[t]" for the purposes of the Appointments Clause.^[11]

But petitioners are not done yet. They argue that the full Commission cannot constitutionally appoint Board members, because only the Chairman of the Commission is the Commission's "Hea[d]."^[12] The Commission's powers, however, are generally vested in the Commissioners jointly, not the Chairman alone. See, e.g., 15 U.S.C. §§ 77s, 77t, 78u, 78w. The Commissioners do not report to the Chairman, who exercises administrative and executive functions subject to the full Commission's policies. See Reorg. Plan No. 10 of 1950, § 1(b)(1), 64 Stat. 1265. The Chairman is also appointed from among the Commissioners by the President alone, id., § 3, at 1266, which means that he cannot be regarded as "the head of an agency" for purposes of the Reorganization Act. See 5 U.S.C. § 904. (The Commission as a whole, on the other hand, does meet the requirements of the Act, including its provision that "the head of an agency [may] be an individual or a commission or board with more than one member.")^[13]

As a constitutional matter, we see no reason why a multimember body may not be the "Hea[d]" of a "Departmen[t]" that it governs. The Appointments Clause necessarily contemplates collective appointments by the "Courts of Law," Art. II, [3164] § 2, cl. 2, and each House of Congress, too, appoints its officers collectively, see Art. I, § 2, cl. 5; id., § 3, cl. 5. Petitioners argue that the Framers vested the nomination of principal officers in the President to avoid the perceived evils of collective appointments, but they reveal no similar concern with respect to inferior officers, whose appointments may be vested elsewhere, including in multimember bodies. Practice has also sanctioned the appointment of inferior officers by multimember agencies. See Freytag, supra, at 918, 111 S.Ct. 2631 (SCALIA, J., concurring in part and concurring in judgment); see also Classification Act of 1923, ch. 265, § 2, 42 Stat. 1488 (defining "the head of the department" to mean "the officer or group of officers . . . who are not subordinate or responsible to any other officer of the department" (emphasis added)); 37 Op. Atty. Gen. 227, 231 (1933) (endorsing collective appointment by the Civil Service Commission). We conclude that the Board members have been validly appointed by the full Commission.

In light of the foregoing, petitioners are not entitled to broad injunctive relief against the Board's continued operations. But they are entitled to declaratory relief sufficient to ensure that the reporting requirements and auditing standards to which they are subject will be enforced only by a constitutional agency accountable to the Executive. See Bowsher, 478 U.S., at 727, n. 5, 106 S.Ct. 3181 (concluding that a separation of powers violation may create a "here-and-now" injury that can be remedied by a court (internal quotation marks omitted)).

* * *

The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. Such diffusion of authority "would greatly diminish the intended and necessary responsibility of the chief magistrate himself." The Federalist No. 70, at 478.

While we have sustained in certain cases limits on the President's removal power, the Act before us imposes a new type of restriction—two levels of protection from removal for those who nonetheless exercise significant executive power. Congress cannot limit the President's authority in this way.

The judgment of the United States Court of Appeals for the District of Columbia Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice BREYER, with whom Justice STEVENS, Justice GINSBURG, and Justice SOTOMAYOR join, dissenting.

The Court holds unconstitutional a statute providing that the Securities and Exchange Commission can remove members of the Public Company Accounting Oversight Board from office only for cause. It argues that granting the "inferior officer[s]" on the Accounting Board "more than one level of good-cause protection . . . contravenes the President's `constitutional obligation to ensure the faithful execution of the laws.'" Ante, at 3147. I agree that the Accounting Board members are inferior officers. See ante, at 3179-3180. But in my view the statute does not significantly interfere with the President's "executive Power." Art. II, § 1. It violates no separation-of-powers principle. And the [3165] Court's contrary holding threatens to disrupt severely the fair and efficient administration of the laws. I consequently dissent.

I

A

The legal question before us arises at the intersection of two general constitutional principles. On the one hand, Congress has broad power to enact statutes "necessary and proper" to the exercise of its specifically enumerated constitutional authority. Art. I, § 8, cl. 18. As Chief Justice Marshall wrote for the Court nearly 200 years ago, the Necessary and Proper Clause reflects the Framers' efforts to create a Constitution that would "endure for ages to come." McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 415, 4 L.Ed. 579 (1819). It embodies their recognition that it would be "unwise" to prescribe "the means by which government should, in all future time, execute its powers." Ibid. Such "immutable rules" would deprive the Government of the needed flexibility to respond to future "exigencies which, if foreseen at all, must have been seen dimly." Ibid. Thus the Necessary and Proper Clause affords Congress broad authority to "create" governmental "`offices'" and to structure those offices "as it chooses." Buckley v. Valeo, 424 U.S. 1, 138, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); cf. Lottery Case, 188 U.S. 321, 355, 23 S.Ct. 321, 47 L.Ed. 492 (1903). And Congress has drawn on that power over the past century to create numerous federal agencies in response to "various crises of human affairs" as they have arisen. McCulloch, supra, at 415 (emphasis deleted). Cf. Wong Yang Sung v. McGrath, 339 U.S. 33, 36-37, 70 S.Ct. 445, 94 L.Ed. 616 (1950).

On the other hand, the opening sections of Articles I, II, and III of the Constitution separately and respectively vest "all legislative Powers" in Congress, the "executive Power" in the President, and the "judicial Power" in the Supreme Court (and such "inferior Courts as Congress may from time to time ordain and establish"). In doing so, these provisions imply a structural separation-of-powers principle. See, e.g., Miller v. French, 530 U.S. 327, 341-342, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000). And that principle, along with the instruction in Article II, § 3 that the President "shall take Care that the Laws be faithfully executed," limits Congress' power to structure the Federal Government. See, e.g., INS v. Chadha, 462 U.S. 919, 946, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); Freytag v. Commissioner, 501 U.S. 868, 878, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 859-860, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986). Indeed, this Court has held that the separation-of-powers principle guarantees the President the authority to dismiss certain Executive Branch officials at will. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926).

But neither of these two principles is absolute in its application to removal cases. The Necessary and Proper Clause does not grant Congress power to free all Executive Branch officials from dismissal at the will of the President. Ibid. Nor does the separation-of-powers principle grant the President an absolute authority to remove any and all Executive Branch officials at will. Rather, depending on, say, the nature of the office, its function, or its subject matter, Congress sometimes may, consistent with the Constitution, limit the President's authority to remove an officer from his post. See Humphrey's Executor [3166] v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), overruling in part Myers, supra; Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). And we must here decide whether the circumstances surrounding the statute at issue justify such a limitation.

In answering the question presented, we cannot look to more specific constitutional text, such as the text of the Appointments Clause or the Presentment Clause, upon which the Court has relied in other separation-of-powers cases. See, e.g., Chadha, supra, at 946, 103 S.Ct. 2764; Buckley, supra, at 124-125, 96 S.Ct. 612. That is because, with the exception of the general "vesting" and "take care" language, the Constitution is completely "silent with respect to the power of removal from office." Ex parte Hennen, 13 Pet. 230, 258 (1839); see also Morrison, supra, at 723, 108 S.Ct. 2597 (SCALIA, J., dissenting) ("There is, of course, no provision in the Constitution stating who may remove executive officers. . .").

Nor does history offer significant help. The President's power to remove Executive Branch officers "was not discussed in the Constitutional Convention." Myers, supra, at 109-110, 47 S.Ct. 21. The First Congress enacted federal statutes that limited the President's ability to oversee Executive Branch officials, including the Comptroller of the United States, federal district attorneys (precursors to today's United States Attorneys), and, to a lesser extent, the Secretary of the Treasury. See, e.g., Lessig, Readings By Our Unitary Executive, 15 Cardozo L.Rev. 175, 183-184 (1993); Teifer, The Constitutionality of Independent Officers as Checks on Abuses of Executive Power, 63 B.U.L.Rev. 59, 74-75 (1983); Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm. & Mary L.Rev. 211, 240-241 (1989) (hereinafter Casper); H. Bruff, Balance of Forces: Separation of Powers in the Administrative State 414-417 (2006). But those statutes did not directly limit the President's authority to remove any of those officials—"a subject" that was "much disputed" during "the early history of this government," "and upon which a great diversity of opinion was entertained." Hennen, supra, at 259, 38 U.S. 230; see also United States ex rel. Goodrich v. Guthrie, 17 How. 284, 306, 15 L.Ed. 102 (1855) (McLean, J., dissenting); Casper 233-237 (recounting the Debate of 1789). Scholars, like Members of this Court, have continued to disagree, not only about the inferences that should be drawn from the inconclusive historical record, but also about the nature of the original disagreement. Compare ante, at 3151-3152; Myers, supra, at 114, 47 S.Ct. 21 (majority opinion of Taft, C. J.); and Prakash, New Light on the Decision of 1789, 91 Cornell L.Rev. 1021 (2006), with, e.g., Myers, supra, at 194, 47 S.Ct. 21 (McReynolds, J., dissenting); Corwin, Tenure of Office and the Removal Power Under the Constitution, 27 Colum. L.Rev. 353, 369 (1927); Lessig & Sunstein, The President and the Administration, 94 Colum. L.Rev. 1, 25-26 (1994) (hereinafter Lessig & Sunstein); and L. Fisher, President and Congress: Power and Policy 86-89 (1972).

Nor does this Court's precedent fully answer the question presented. At least it does not clearly invalidate the provision in dispute. See Part II-C, infra. In Myers, supra, the Court invalidated—for the first and only time—a congressional statute on the ground that it unduly limited the President's authority to remove an Executive Branch official. But soon thereafter the Court expressly disapproved most of Myers' broad reasoning. See Humphrey's Executor, 295 U.S., at 626-627, 55 S.Ct. 869, overruling in part Myers, supra; Wiener v. United States, 357 U.S. 349, 352, [3167] 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958) (stating that Humphrey's Executor "explicitly `disapproved'" of much of the reasoning in Myers). Moreover, the Court has since said that "the essence of the decision in Myers was the judgment that the Constitution prevents Congress from `draw[ing] to itself . . . the power to remove or the right to participate in the exercise of that power.'" Morrison, supra, at 686, 108 S.Ct. 2597 (emphasis added). And that feature of the statute—a feature that would aggrandize the power of Congress— is not present here. Congress has not granted itself any role in removing the members of the Accounting Board. Cf. Freytag, 501 U.S., at 878, 111 S.Ct. 2631 ("separation-of-powers jurisprudence generally focuses on the danger of one branch's aggrandizing its power at the expense of another branch" (emphasis added)); Buckley, 424 U.S., at 129, 96 S.Ct. 612 (same); Schor, 478 U.S., at 856, 106 S.Ct. 3245 (same); Bowsher v. Synar, 478 U.S. 714, 727, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (same). Compare Myers, supra, (striking down statute where Congress granted itself removal authority over Executive Branch official), with Humphrey's Executor, supra, (upholding statute where such aggrandizing was absent); Wiener, supra (same); Morrison, supra (same).

In short, the question presented lies at the intersection of two sets of conflicting, broadly framed constitutional principles. And no text, no history, perhaps no precedent provides any clear answer. Cf. Chicago v. Morales, 527 U.S. 41, 106, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (THOMAS, J., joined by Rehnquist, C.J., and SCALIA, J., dissenting) (expressing the view that "this Court" is "most vulnerable" when "it deals with judge-made constitutional law" that lacks "roots in the language" of the Constitution (internal quotation marks omitted)).

B

When previously deciding this kind of nontextual question, the Court has emphasized the importance of examining how a particular provision, taken in context, is likely to function. Thus, in Crowell v. Benson, 285 U.S. 22, 53, 52 S.Ct. 285, 76 L.Ed. 598 (1932), a foundational separation-of-powers case, the Court said that "regard must be had, as in other cases where constitutional limits are invoked, not to mere matters of form, but to the substance of what is required." The Court repeated this injunction in Schor and again in Morrison. See Schor, supra, at 854, 106 S.Ct. 3245 (stating that the Court must look "`beyond form to the substance of what' Congress has done"); Morrison, 487 U.S., at 689-690, 108 S.Ct. 2597 ("The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President," but rather asks whether, given the "functions of the officials in question," a removal provision "interfere[s] with the President's exercise of the `executive power'" (emphasis added)). The Court has thereby written into law Justice Jackson's wise perception that "the Constitution . . . contemplates that practice will integrate the dispersed powers into a workable government." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (opinion concurring in judgment) (emphasis added). See also ibid. ("The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context").

It is not surprising that the Court in these circumstances has looked to function and context, and not to bright-line rules. For one thing, that approach embodies the [3168] intent of the Framers. As Chief Justice Marshall long ago observed, our Constitution is fashioned so as to allow the three coordinate branches, including this Court, to exercise practical judgment in response to changing conditions and "exigencies," which at the time of the founding could be seen only "dimly," and perhaps not at all. McCulloch, 4 Wheat., at 415.

For another, a functional approach permits Congress and the President the flexibility needed to adapt statutory law to changing circumstances. That is why the "powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role" over time. New York v. United States, 505 U.S. 144, 157, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). Indeed, the Federal Government at the time of the founding consisted of about 2,000 employees and served a population of about 4 million. See Kaufman, The Growth of the Federal Personnel System, in The Federal Government Service 7, 8 (W. Sayre 2d ed.1965); Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 1, p. 8 (1975). Today, however, the Federal Government employs about 4.4 million workers who serve a Nation of more than 310 million people living in a society characterized by rapid technological, economic, and social change. See Office of Management and Budget, Analytical Perspectives, Budget of the U.S. Government, Fiscal Year 2010, p. 368 (2009).

Federal statutes now require or permit Government officials to provide, regulate, or otherwise administer, not only foreign affairs and defense, but also a wide variety of such subjects as taxes, welfare, social security, medicine, pharmaceutical drugs, education, highways, railroads, electricity, natural gas, nuclear power, financial instruments, banking, medical care, public health and safety, the environment, fair employment practices, consumer protection and much else besides. Those statutes create a host of different organizational structures. Sometimes they delegate administrative authority to the President directly, e.g., 10 U.S.C. § 2031(a)(1); 42 U.S.C. § 5192(c); sometimes they place authority in a long-established Cabinet department, e.g., 7 U.S.C. § 1637b(c)(1); 12 U.S.C. § 5221(b)(2) (2006 ed., Supp. II); sometimes they delegate authority to an independent commission or board, e.g., 15 U.S.C. § 4404(b); 28 U.S.C. § 994; sometimes they place authority directly in the hands of a single senior administrator, e.g., 15 U.S.C. § 657d(c)(4); 42 U.S.C. § 421; sometimes they place it in a sub-cabinet bureau, office, division or other agency, e.g., 18 U.S.C. § 4048; sometimes they vest it in multimember or multiagency task groups, e.g. 5 U.S.C. §§ 593-594; 50 U.S.C. § 402 (2006 ed. and Supp. II); sometimes they vest it in commissions or advisory committees made up of members of more than one branch, e.g., 20 U.S.C. § 42(a); 28 U.S.C. § 991(a) (2006 ed., Supp. II); 42 U.S.C. § 1975; sometimes they divide it among groups of departments, commissions, bureaus, divisions, and administrators, e.g., 5 U.S.C. § 9902(a) (2006 ed., Supp. II); 7 U.S.C. § 136i-1(g); and sometimes they permit state or local governments to participate as well, e.g., 7 U.S.C. § 2009aa-1(a). Statutes similarly grant administrators a wide variety of powers—for example, the power to make rules, develop informal practices, investigate, adjudicate, impose sanctions, grant licenses, and provide goods, services, advice, and so forth. See generally 5 U.S.C. § 500 et seq.

The upshot is that today vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different [3169] problems, provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives. And, given the nature of the Government's work, it is not surprising that administrative units come in many different shapes and sizes.

The functional approach required by our precedents recognizes this administrative complexity and, more importantly, recognizes the various ways presidential power operates within this context—and the various ways in which a removal provision might affect that power. As human beings have known ever since Ulysses tied himself to the mast so as safely to hear the Sirens' song, sometimes it is necessary to disable oneself in order to achieve a broader objective. Thus, legally enforceable commitments—such as contracts, statutes that cannot instantly be changed, and, as in the case before us, the establishment of independent administrative institutions— hold the potential to empower precisely because of their ability to constrain. If the President seeks to regulate through impartial adjudication, then insulation of the adjudicator from removal at will can help him achieve that goal. And to free a technical decisionmaker from the fear of removal without cause can similarly help create legitimacy with respect to that official's regulatory actions by helping to insulate his technical decisions from nontechnical political pressure.

Neither is power always susceptible to the equations of elementary arithmetic. A rule that takes power from a President's friends and allies may weaken him. But a rule that takes power from the President's opponents may strengthen him. And what if the rule takes power from a functionally neutral independent authority? In that case, it is difficult to predict how the President's power is affected in the abstract.

These practical reasons not only support our precedents' determination that cases such as this should examine the specific functions and context at issue; they also indicate that judges should hesitate before second-guessing a "for cause" decision made by the other branches. See, e.g., Chadha, 462 U.S., at 944, 103 S.Ct. 2764 (applying a "presumption that the challenged statute is valid"); Bowsher, 478 U.S., at 736, 106 S.Ct. 3181 (STEVENS, J., concurring in judgment). Compared to Congress and the President, the Judiciary possesses an inferior understanding of the realities of administration, and the manner in which power, including and most especially political power, operates in context.

There is no indication that the two comparatively more expert branches were divided in their support for the "for cause" provision at issue here. In this case, the Act embodying the provision was passed by a vote of 423 to 3 in the House of Representatives and a by vote of 99 to 0 in the Senate. 148 Cong. Rec. 14458, 14505 (2002). The creation of the Accounting Board was discussed at great length in both bodies without anyone finding in its structure any constitutional problem. See id., at 12035-12037, 12112-12132, 12315-12323, 12372-12377, 12488-12508, 12529-12534, 12612-12618, 12673-12680, 12734-12751, 12915-12960, 13347-13354, 14439-14458, 14487-14506. The President signed the Act. And, when he did so, he issued a signing statement that critiqued multiple provisions of the Act but did not express any separation-of-powers concerns. See President's Statement on Signing the Sarbanes-Oxley Act of 2002, 30 Weekly Comp. of Pres. Doc. 1286 (2002). Cf. ABA, Report of Task Force on Presidential Signing Statements and the Separation of Powers [3170] Doctrine 15 (2006), online at http://www. signingstatementsaba_final_signing_ statements_recommendations-report_7-24-06.pdf (all Internet materials as visited June 24, 2010, and available in Clerk of Court's case file) (noting that President Bush asserted "over 500" "constitutional objections" through signing statements "in his first term," including 82 "related to his theory of the `unitary executive'").

Thus, here, as in similar cases, we should decide the constitutional question in light of the provision's practical functioning in context. And our decision should take account of the Judiciary's comparative lack of institutional expertise.

II

A

To what extent then is the Act's "for cause" provision likely, as a practical matter, to limit the President's exercise of executive authority? In practical terms no "for cause" provision can, in isolation, define the full measure of executive power. This is because a legislative decision to place ultimate administrative authority in, say, the Secretary of Agriculture rather than the President, the way in which the statute defines the scope of the power the relevant administrator can exercise, the decision as to who controls the agency's budget requests and funding, the relationships between one agency or department and another, as well as more purely political factors (including Congress' ability to assert influence) are more likely to affect the President's power to get something done. That is why President Truman complained that "`the powers of the President amount to'" bringing "`people in and try[ing] to persuade them to do what they ought to do without persuasion.'" C. Rossiter, The American Presidency 154 (2d rev. ed.1960). And that is why scholars have written that the President "is neither dominant nor powerless" in his relationships with many Government entities, "whether denominated executive or independent." Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L.Rev. 573, 583 (1984) (hereinafter Strauss). Those entities "are all subject to presidential direction in significant aspects of their functioning, and [are each] able to resist presidential direction in others." Ibid. (emphasis added).

Indeed, notwithstanding the majority's assertion that the removal authority is "the key" mechanism by which the President oversees inferior officers in the independent agencies, ante, at 3157, it appears that no President has ever actually sought to exercise that power by testing the scope of a "for cause" provision. See Bruff, Bringing the Independent Agencies in from the Cold, 62 Vanderbilt L.Rev. En Banc 63, 68 (2009), online at http:// vanderbiltlawreview. org/articles/2009/11/Bruff-62-Vand-L-Rev-En-Banc-63.pdf (noting that "Presidents do not test the limits of their power by removing commissioners . . ."); Lessig & Sunstein 110-112 (noting that courts have not had occasion to define what constitutes "cause" because Presidents rarely test removal provisions).

But even if we put all these other matters to the side, we should still conclude that the "for cause" restriction before us will not restrict presidential power significantly. For one thing, the restriction directly limits, not the President's power, but the power of an already independent agency. The Court seems to have forgotten that fact when it identifies its central constitutional problem: According to the Court, the President "is powerless to intervene" if he has determined that the Board members'"conduct merit[s] removal" because "[t]hat decision is vested instead in [3171] other tenured officers—the Commissioners—none of whom is subject to the President's direct control." Ante, at 3153. But so long as the President is legitimately foreclosed from removing the Commissioners except for cause (as the majority assumes), nullifying the Commission's power to remove Board members only for cause will not resolve the problem the Court has identified: The President will still be "powerless to intervene" by removing the Board members if the Commission reasonably decides not to do so.

In other words, the Court fails to show why two layers of "for cause" protection— Layer One insulating the Commissioners from the President, and Layer Two insulating the Board from the Commissioners—impose any more serious limitation upon the President's powers than one layer. Consider the four scenarios that might arise:

1. The President and the Commission both want to keep a Board member in office. Neither layer is relevant.

2. The President and the Commission both want to dismiss a Board member. Layer Two stops them both from doing so without cause. The President's ability to remove the Commission (Layer One) is irrelevant, for he and the Commission are in agreement.

3. The President wants to dismiss a Board member, but the Commission wants to keep the member. Layer One allows the Commission to make that determination notwithstanding the President's contrary view. Layer Two is irrelevant because the Commission does not seek to remove the Board member.

4. The President wants to keep a Board member, but the Commission wants to dismiss the Board member. Here, Layer Two helps the President, for it hinders the Commission's ability to dismiss a Board member whom the President wants to keep in place.

Thus, the majority's decision to eliminate only Layer Two accomplishes virtually nothing. And that is because a removal restriction's effect upon presidential power depends not on the presence of a "double-layer" of for-cause removal, as the majority pretends, but rather on the real-world nature of the President's relationship with the Commission. If the President confronts a Commission that seeks to resist his policy preferences—a distinct possibility when, as here, a Commission's membership must reflect both political parties, 15 U.S.C. § 78d(a)—the restriction on the Commission's ability to remove a Board member is either irrelevant (as in scenario 3) or may actually help the President (as in scenario 4). And if the President faces a Commission that seeks to implement his policy preferences, Layer One is irrelevant, for the President and Commission see eye to eye.

In order to avoid this elementary logic, the Court creates two alternative scenarios. In the first, the Commission and the President both want to remove a Board member, but have varying judgments as to whether they have good "cause" to do so— i.e., the President and the Commission both conclude that a Board member should be removed, but disagree as to whether that conclusion (which they have both reached) is reasonable. Ante, at 3153-3154. In the second, the President wants to remove a Board member and the Commission disagrees; but, notwithstanding its freedom to make reasonable decisions independent of the President (afforded by Layer One), the Commission (while apparently telling the President that it agrees with him and would like to remove the Board member) uses Layer Two as an [3172] "excuse" to pursue its actual aims—an excuse which, given Layer One, it does not need. Ante, at 3154, n. 4.

Both of these circumstances seem unusual. I do not know if they have ever occurred. But I do not deny their logical possibility. I simply doubt their importance. And the fact that, with respect to the President's power, the double layer of for-cause removal sometimes might help, sometimes might hurt, leads me to conclude that its overall effect is at most indeterminate.

But once we leave the realm of hypothetical logic and view the removal provision at issue in the context of the entire Act, its lack of practical effect becomes readily apparent. That is because the statute provides the Commission with full authority and virtually comprehensive control over all of the Board's functions. Those who created the Accounting Board modeled it, in terms of structure and authority, upon the semiprivate regulatory bodies prevalent in the area of financial regulation, such as the New York Stock Exchange and other similar self-regulating organizations. See generally Brief for Former Chairmen of the SEC as Amici Curiae (hereinafter Brief for Former SEC Chairmen). And those organizations— which rely on private financing and on officers drawn from the private sector— exercise rulemaking and adjudicatory authority that is pervasively controlled by, and is indeed "entirely derivative" of, the SEC. See National Assn. of Securities Dealers, Inc. v. SEC, 431 F.3d 803, 806 (C.A.D.C.2005).

Adhering to that model, the statute here gives the Accounting Board the power to adopt rules and standards "relating to the preparation of audit reports"; to adjudicate disciplinary proceedings involving accounting firms that fail to follow these rules; to impose sanctions; and to engage in other related activities, such as conducting inspections of accounting firms registered as the law requires and investigations to monitor compliance with the rules and related legal obligations. See 15 U.S.C. §§ 7211-7216. But, at the same time,

• No Accounting Board rule takes effect unless and until the Commission approves it, § 7217(b)(2);

• The Commission may "abrogat[e], delet[e] or ad[d] to" any rule or any portion of a rule promulgated by the Accounting Board whenever, in the Commission's view, doing so "further[s] the purposes" of the securities and accounting-oversight laws, § 7217(b)(5);

• The Commission may review any sanction the Board imposes and "enhance, modify, cancel, reduce, or require the remission of" that sanction if it find's the Board's action not "appropriate," §§ 7215(e), 7217(c)(3);

• The Commission may promulgate rules restricting or directing the Accounting Board's conduct of all inspections and investigations, §§ 7211(c)(3), 7214(h), 7215(b)(1)-(4);

• The Commission may itself initiate any investigation or promulgate any rule within the Accounting Board's purview, § 7202, and may also remove any Accounting Board member who has unreasonably "failed to enforce compliance with" the relevant "rule[s], or any professional standard," § 7217(d)(3)(C) (emphasis added);

• The Commission may at any time "relieve the Board of any responsibility to enforce compliance with any provision" of the Act, the rules, or professional standards if, in the Commission's view, doing so is in [3173] "the public interest," § 7217(d)(1) (emphasis added).

As these statutory provisions make clear, the Court is simply wrong when it says that "the Act nowhere gives the Commission effective power to start, stop, or alter" Board investigations. Ante, at 3158-3159. On the contrary, the Commission's control over the Board's investigatory and legal functions is virtually absolute. Moreover, the Commission has general supervisory powers over the Accounting Board itself: It controls the Board's budget, §§ 7219(b), (d)(1); it can assign to the Board any "duties or functions" that it "determines are necessary or appropriate," § 7211(c)(5); it has full "oversight and enforcement authority over the Board," § 7217(a), including the authority to inspect the Board's activities whenever it believes it "appropriate" to do so, § 7217(d)(2) (emphasis added). And it can censure the Board or its members, as well as remove the members from office, if the members, for example, fail to enforce the Act, violate any provisions of the Act, or abuse the authority granted to them under the Act, § 7217(d)(3). Cf. Shurtleff v. United States, 189 U.S. 311, 314-319, 23 S.Ct. 535, 47 L.Ed. 828 (1903) (holding that removal authority is not always "restricted to a removal for th[e] causes" set forth by statute); Bowsher, 478 U.S., at 729, 106 S.Ct. 3181 (rejecting the "arguable premis[e]" "that the enumeration of certain specified causes of removal excludes the possibility of removal for other causes"). Contra, ante, at 3158, n. 7. See generally Pildes, Putting Power Back into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional, 62 Vand. L.Rev. En Banc 85 (2009), online at http://vanderbiltlawreview.org1/articles/ 2009/11/Pildes-62-Vand-L-Rev-En-Banc-85.pdf (explaining further the comprehensive nature of the Commission's powers).

What is left? The Commission's inability to remove a Board member whose perfectly reasonable actions cause the Commission to overrule him with great frequency? What is the practical likelihood of that occurring, or, if it does, of the President's serious concern about such a matter? Everyone concedes that the President's control over the Commission is constitutionally sufficient. See Humphrey's Executor, 295 U.S. 602, 55 S.Ct. 869; Wiener, 357 U.S. 349, 78 S.Ct. 1275; ante, at 3143-3144. And if the President's control over the Commission is sufficient, and the Commission's control over the Board is virtually absolute, then, as a practical matter, the President's control over the Board should prove sufficient as well.

B

At the same time, Congress and the President had good reason for enacting the challenged "for cause" provision. First and foremost, the Board adjudicates cases. See 15 U.S.C. § 7215. This Court has long recognized the appropriateness of using "for cause" provisions to protect the personal independence of those who even only sometimes engage in adjudicatory functions. Humphrey's Executor, supra, at 623-628, 55 S.Ct. 869; see also Wiener, supra, at 355-356, 78 S.Ct. 1275; Morrison, 487 U.S., at 690-691, and n. 30, 108 S.Ct. 2597; McAllister v. United States, 141 U.S. 174, 191-201, 11 S.Ct. 949, 35 L.Ed. 693 (1891) (Field, J., dissenting). Indeed, as early as 1789 James Madison stated that "there may be strong reasons why an" executive "officer" such as the Comptroller of the United States "should not hold his office at the pleasure of the Executive branch" if one of his "principal dut[ies]" "partakes strongly of the judicial character." 1 Annals of Congress 611-612; cf. ante, at 3156, n. 6 (noting that the statute Congress ultimately enacted limited [3174] Presidential control over the Comptroller in a different fashion); see supra, at 3148. The Court, however, all but ignores the Board's adjudicatory functions when conducting its analysis. See, e.g., ante, at 3155. And when it finally does address that central function (in a footnote), it simply asserts that the Board does not "perform adjudicative . . . functions," ante, at 3160, n. 10 (emphasis added), an assertion that is inconsistent with the terms of the statute. See § 7215(c)(1) (governing "proceeding[s] by the Board to determine whether a registered public accounting firm, or an associated person thereof, should be disciplined").

Moreover, in addition to their adjudicative functions, the Accounting Board members supervise, and are themselves, technical professional experts. See § 7211(e)(1) (requiring that Board members "have a demonstrated" technical "understanding of the responsibilities" and "obligations of accountants with respect to the preparation and issuance of audit reports"). This Court has recognized that the "difficulties involved in the preparation of" sound auditing reports require the application of "scientific accounting principles." United States v. Anderson, 269 U.S. 422, 440, 46 S.Ct. 131, 70 L.Ed. 347 (1926). And this Court has recognized the constitutional legitimacy of a justification that rests agency independence upon the need for technical expertise. See Humphrey's Executor, supra, at 624-626, 55 S.Ct. 869; see also Breger & Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L.Rev. 1111, 1131-1133 (2000) (explaining how the need for administrators with "technical competence," "apolitical expertise," and skill in "scientific management" led to original creation of independent agencies) (hereinafter Breger & Edles); J. Landis, The Administrative Process 23 (1938) (similar); Woodrow Wilson, Democracy and Efficiency, 87 Atlantic Monthly 289, 299 (1901) (describing need for insulation of experts from political influences).

Here, the justification for insulating the "technical experts" on the Board from fear of losing their jobs due to political influence is particularly strong. Congress deliberately sought to provide that kind of protection. See, e.g., 148 Cong. Rec. 12036, 12115, 13352-13355. It did so for good reason. See ante, at 3147 (noting that the Accounting Board was created in response to "a series of celebrated accounting debacles"); H.R.Rep. No. 107-414, pp. 18-19 (2002) (same); Brief for Former SEC Chairmen 8-9. And historically, this regulatory subject matter—financial regulation—has been thought to exhibit a particular need for independence. See e.g., 51 Cong. Rec. 8857 (1914) (remarks of Sen. Morgan upon creation of the Federal Trade Commission) ("[I]t is unsafe for an . . . administrative officer representing a great political party . . . to hold the power of life and death over the great business interests of this country . . . . That is . . . why I believe in . . . taking these business matters out of politics"). And Congress, by, for example, providing the Board with a revenue stream independent of the congressional appropriations process, § 7219, helped insulate the Board from congressional, as well as other, political influences. See, e.g., 148 Cong. Rec. 12036 (statement of Sen. Stabenow).

In sum, Congress and the President could reasonably have thought it prudent to insulate the adjudicative Board members from fear of purely politically based removal. Cf. Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) ("[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if [3175] confidence in the system of representative Government is not to be eroded to a disastrous extent"). And in a world in which we count on the Federal Government to regulate matters as complex as, say, nuclear-power production, the Court's assertion that we should simply learn to get by "without being" regulated "by experts" is, at best, unrealistic—at worst, dangerously so. Ante, at 3155-3156.

C

Where a "for cause" provision is so unlikely to restrict presidential power and so likely to further a legitimate institutional need, precedent strongly supports its constitutionality. First, in considering a related issue in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the Court made clear that when "determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions." Id., at 443, 97 S.Ct. 2777. The Court said the same in Morrison, where it upheld a restriction on the President's removal power. 487 U.S., at 691, 108 S.Ct. 2597 ("[T]he real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light"). Here, the removal restriction may somewhat diminish the Commission's ability to control the Board, but it will have little, if any, negative effect in respect to the President's ability to control the Board, let alone to coordinate the Executive Branch. See Part II-A, supra. Indeed, given Morrison, where the Court upheld a restriction that significantly interfered with the President's important historic power to control criminal prosecutions, a "`purely executive'" function, 487 U.S., at 687-689, 108 S.Ct. 2597, the constitutionality of the present restriction would seem to follow a fortiori.

Second, as previously pointed out, this Court has repeatedly upheld "for cause" provisions where they restrict the President's power to remove an officer with adjudicatory responsibilities. Compare Humphrey's Executor, 295 U.S., at 623-628, 55 S.Ct. 869; Wiener, 357 U.S., at 355, 78 S.Ct. 1275; Schor, 478 U.S., at 854, 106 S.Ct. 3245; Morrison, supra, at 691, n. 30, 108 S.Ct. 2597, with ante, at 3155-3156 (ignoring these precedents). And we have also upheld such restrictions when they relate to officials with technical responsibilities that warrant a degree of special independence. E.g., Humphrey's Executor, supra, at 624, 55 S.Ct. 869. The Accounting Board's functions involve both kinds of responsibility. And, accordingly, the Accounting Board's adjudicatory responsibilities, the technical nature of its job, the need to attract experts to that job, and the importance of demonstrating the nonpolitical nature of the job to the public strongly justify a statute that assures that Board members need not fear for their jobs when competently carrying out their tasks, while still maintaining the Commission as the ultimate authority over Board policies and actions. See Part II-B, supra.

Third, consider how several cases fit together in a way that logically compels a holding of constitutionality here. In Perkins, 116 U.S., at 483, 484, 6 S.Ct. 449— which was reaffirmed in Myers, 272 U.S., at 127, 47 S.Ct. 21 and in Morrison, supra, at 689, n. 27, 108 S.Ct. 2597—the Court upheld a removal restriction limiting the authority of the Secretary of the Navy to remove a "cadet-engineer," whom the Court explicitly defined as an "inferior officer." The Court said,

[3176] "We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed." Perkins, supra, at 485, 6 S.Ct. 449 (emphasis added; internal quotation marks omitted).

See also Morrison, supra, at 723-724, 108 S.Ct. 2597 (SCALIA, J., dissenting) (agreeing that the power to remove an "inferior officer" who is appointed by a department head can be restricted). Cf. ante, at 3162-3164 (holding that SEC Commissioners are "Heads of Departments").

In Humphrey's Executor, the Court held that Congress may constitutionally limit the President's authority to remove certain principal officers, including heads of departments. 295 U.S., at 627-629, 55 S.Ct. 869. And the Court has consistently recognized the validity of that holding. See Wiener, supra; United States v. Nixon, 418 U.S. 683, 706, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Buckley, 424 U.S., at 133-136, 96 S.Ct. 612; Chadha, 462 U.S., at 953, n. 16, 103 S.Ct. 2764; Bowsher, 478 U.S., at 725-726, 106 S.Ct. 3181; Morrison, supra, at 686-693, 108 S.Ct. 2597; Mistretta v. United States, 488 U.S. 361, 410-411, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

And in Freytag, 501 U.S., at 878, 111 S.Ct. 2631, Justice SCALIA stated in a concurring opinion written for four Justices, including Justice KENNEDY, that "adjusting the remainder of the Constitution to compensate for Humphrey's Executor is a fruitless endeavor." In these Justices' view, the Court should not create a separate constitutional jurisprudence for the "independent agencies." That being so, the law should treat their heads as it treats other Executive Branch heads of departments. Consequently, as the Court held in Perkins, Congress may constitutionally "limit and restrict" the Commission's power to remove those whom they appoint (e.g., the Accounting Board members).

Fourth, the Court has said that "[o]ur separation-of-powers jurisprudence generally focuses on the danger of one branch's aggrandizing its power at the expense of another branch." Freytag, supra, at 878, 111 S.Ct. 2631 (emphasis added); accord, Buckley, supra, at 124-125, 96 S.Ct. 612; Schor, supra, at 856, 106 S.Ct. 3245; Morrison, supra, at 686, 108 S.Ct. 2597; cf. Bowsher, supra. Indeed, it has added that "the essence of the decision in Myers," which is the only one of our cases to have struck down a "for cause" removal restriction, "was the judgment that the Constitution prevents Congress from `draw[ing] to itself . . . the power to remove.'" Morrison, supra, at 686, 108 S.Ct. 2597 (quoting Myers, supra, at 161, 47 S.Ct. 21; emphasis added). Congress here has "drawn" no power to itself to remove the Board members. It has instead sought to limit its own power, by, for example, providing the Accounting Board with a revenue stream independent of the congressional appropriations process. See supra, at 19; see also Brief for Former SEC Chairmen 16. And this case thereby falls outside the ambit of the Court's most serious constitutional concern.

In sum, the Court's prior cases impose functional criteria that are readily met here. Once one goes beyond the Court's elementary arithmetical logic (i.e., "one plus one is greater than one") our precedent virtually dictates a holding that the [3177] challenged "for cause" provision is constitutional.

D

We should ask one further question. Even if the "for cause" provision before us does not itself significantly interfere with the President's authority or aggrandize Congress' power, is it nonetheless necessary to adopt a bright-line rule forbidding the provision lest, through a series of such provisions, each itself upheld as reasonable, Congress might undercut the President's central constitutional role? Cf. Strauss 625-626. The answer to this question is that no such need has been shown. Moreover, insofar as the Court seeks to create such a rule, it fails. And in failing it threatens a harm that is far more serious than any imaginable harm this "for cause" provision might bring about.

The Court fails to create a bright-line rule because of considerable uncertainty about the scope of its holding—an uncertainty that the Court's opinion both reflects and generates. The Court suggests, for example, that its rule may not apply where an inferior officer "perform[s] adjudicative. . . functions." Cf. ante, at 3160, n. 10. But the Accounting Board performs adjudicative functions. See supra, at 3155-3156. What, then, are we to make of the Court's potential exception? And would such an exception apply to an administrative law judge who also has important administrative duties beyond pure adjudication? See, e.g., 8 CFR § 1003.9, 34 CFR § 81.4 (2009). The Court elsewhere suggests that its rule may be limited to removal statutes that provide for "judicial review of a[n] effort to remove" an official for cause. Ante, at 3158; ante, at 3159. But we have previously stated that all officers protected by a for-cause removal provision and later subject to termination are entitled to "notice and [a] hearing" in the "courts," as without such review "the appointing power" otherwise "could remove at pleasure or for such cause as [only] it deemed sufficient." Reagan v. United States, 182 U.S. 419, 425, 21 S.Ct. 842, 45 L.Ed. 1162 (1901); Shurtleff, 189 U.S., at 314, 23 S.Ct. 535; cf. Humphrey's Executor, supra (entertaining civil suit challenging removal). But cf. Bowsher, supra, at 729, 106 S.Ct. 3181. What weight, then, should be given to this hint of an exception?

The Court further seems to suggest that its holding may not apply to inferior officers who have a different relationship to their appointing agents than the relationship between the Commission and the Board. See ante, at 3158, 3159-3160. But the only characteristic of the "relationship" between the Commission and the Board that the Court apparently deems relevant is that the relationship includes two layers of for-cause removal. See, e.g., ante, at 3158 ("Broad power over Board functions is not equivalent to the power to remove Board members"). Why then would any different relationship that also includes two layers of for-cause removal survive where this one has not? Cf. Part II-A, supra (describing the Commission's near absolute control over the Board). In a word, what differences are relevant? If the Court means to state that its holding in fact applies only where Congress has "enacted an unusually high standard" of for-cause removal—and does not otherwise render two layers of "`ordinary'" for-cause removal unconstitutional—I should welcome the statement. Ante, at 3158 (emphasis added); see also ante, at 3159-3160, 3154, 3158, (underscoring this statute's "sharply circumscribed definition of what constitutes `good cause'" and its "rigorous," "significant and unusual [removal] protections"). But much of the majority's opinion appears to avoid so narrow a holding in favor of a broad, basically mechanical [3178] rule—a rule that, as I have said, is divorced from the context of the case at hand. Compare Parts III-A, III-B, III-C, ante, with Parts II-A, II-B, II-C, supra. And such a mechanical rule cannot be cabined simply by saying that, perhaps, the rule does not apply to instances that, at least at first blush, seem highly similar. A judicial holding by its very nature is not "a restricted railroad ticket, good for" one "day and train only." Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (Roberts, J., dissenting).

The Court begins to reveal the practical problems inherent in its double for-cause rule when it suggests that its rule may not apply to "the civil service." Ante, at 3160. The "civil service" is defined by statute to include "all appointive positions in . . . the Government of the United States," excluding the military, but including all civil "officer[s]" up to and including those who are subject to Senate confirmation. 5 U.S.C. §§ 2101, 2102(a)(1)(B), 2104. The civil service thus includes many officers indistinguishable from the members of both the Commission and the Accounting Board. Indeed, as this Court recognized in Myers, the "competitive service"—the class within the broader civil service that enjoys the most robust career protection— "includes a vast majority of all the civil officers" in the United States. 272 U.S., at 173, 47 S.Ct. 21 (emphasis added); 5 U.S.C. § 2102(c).

But even if I assume that the majority categorically excludes the competitive service from the scope of its new rule, cf. ante, at 3160 (leaving this question open), the exclusion would be insufficient. This is because the Court's "double for-cause" rule applies to appointees who are "inferior officer[s]." Ante, at 3147. And who are they? Courts and scholars have struggled for more than a century to define the constitutional term "inferior officers," without much success. See 2 J. Story, Commentaries on the Constitution § 1536, pp. 397-398 (3d ed.1858) ("[T]here does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution"); Edmond v. United States, 520 U.S. 651, 661, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) ("Our cases have not set forth an exclusive criterion for [defining] inferior officers"); Memorandum from Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, to the General Counsels of the Executive Branch: Officers of the United States Within the Meaning of the Appointments Clause, p. 3 (Apr. 16, 2007) (hereinafter OLC Memo), online at http://www.justice.gov/olc/2007/ appointmentsclausev10.pdf ("[T]he Supreme Court has not articulated the precise scope and application of the [Inferior Officer] Clause's requirements"); Konecke, The Appointments Clause and Military Judges: Inferior Appointment to a Principal Office, 5 Seton Hall Const. L. J. 489, 492 (1995) (same); Burkoff, Appointment and Removal Under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne L.Rev. 1335, 1347, 1364 (1976) (describing our early precedent as "circular" and our later law as "not particularly useful"). The Court does not clarify the concept. But without defining who is an inferior officer, to whom the majority's new rule applies, we cannot know the scope or the coherence of the legal rule that the Court creates. I understand the virtues of a common-law case-by-case approach. But here that kind of approach (when applied without more specificity than I can find in the Court's opinion) threatens serious harm.

The problem is not simply that the term "inferior officer" is indefinite but also that efforts to define it inevitably conclude that the term's sweep is unusually broad. Consider the Court's definitions: Inferior officers [3179] are, inter alia, (1) those charged with "the administration and enforcement of the public law," Buckley, 424 U.S., at 139, 96 S.Ct. 612; ante, at 3147; (2) those granted "significant authority," 424 U.S., at 126, 96 S.Ct. 612; ante, at 3159-3160; (3) those with "responsibility for conducting civil litigation in the courts of the United States," 424 U.S., at 140, 96 S.Ct. 612; and (4) those "who can be said to hold an office," United States v. Germaine, 99 U.S. 508, 510, 25 L.Ed. 482 (1879), that has been created either by "regulations" or by "statute," United States v. Mouat, 124 U.S. 303, 307-308, 23 Ct.Cl. 490, 8 S.Ct. 505, 31 L.Ed. 463 (1888).

Consider the definitional conclusion that the Department of Justice more recently reached: An "inferior officer" is anyone who holds a "continuing" position and who is "invested by legal authority with a portion of the sovereign powers of the federal Government," including, inter alia, the power to "arrest criminals," "seize persons or property," "issue regulations," "issue. . . authoritative legal opinions," "conduc[t] civil litigation," "collec[t] revenue," represent "the United States to foreign nations," "command" military force, or enter into "contracts" on behalf "of the nation." OLC Memo 1, 4, 12-13, 15-16 (internal quotation marks omitted; emphasis added).

And consider the fact that those whom this Court has held to be "officers" include: (1) a district court clerk, Hennen, 13 Pet., at 258; (2) "thousands of clerks in the Departments of the Treasury, Interior and the othe[r]" departments, Germaine, supra, at 511, who are responsible for "the records, books, and papers appertaining to the office," Hennen, supra, at 259; (3) a clerk to "the assistant treasurer" stationed "at Boston," United States v. Hartwell, 73 U.S. 385, 6 Wall. 385, 392, 18 L.Ed. 830 (1868); (4 & 5) an "assistant-surgeon" and a "cadet-engineer" appointed by the Secretary of the Navy, United States v. Moore, 95 U.S. 760, 762, 24 L.Ed. 588 (1878); Perkins, 116 U.S., at 484, 6 S.Ct. 449; (6) election monitors, Ex parte Siebold, 100 U.S. 371, 397-399, 25 L.Ed. 717 (1880); (7) United States attorneys, Myers, supra, at 159, 47 S.Ct. 21; (8) federal marshals, Siebold, supra, at 397; Morrison, 487 U.S., at 676, 108 S.Ct. 2597; (9) military judges, Weiss v. United States, 510 U.S., 163, 170, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994); (10) judges in Article I courts, Freytag, 501 U.S., at 878, 111 S.Ct. 2631; and (11) the general counsel of the Department of Transportation, Edmond v. United States, 520 U.S. 651, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997). Individual Members of the Court would add to the list the Federal Communication Commission's managing director, the Federal Trade Commission's "secretary," the general counsel of the Commodity Futures Trading Commission, and more generally, bureau chiefs, general counsels, and administrative law judges, see Freytag, supra, at 918-920, 111 S.Ct. 2631 (SCALIA, J., concurring in part and concurring in judgment), as well as "ordinary commissioned military officers," Weiss, supra, at 182, 114 S.Ct. 752 (Souter, J., concurring).

Reading the criteria above as stringently as possible, I still see no way to avoid sweeping hundreds, perhaps thousands of high level government officials within the scope of the Court's holding, putting their job security and their administrative actions and decisions constitutionally at risk. To make even a conservative estimate, one would have to begin by listing federal departments, offices, bureaus and other agencies whose heads are by statute removable only "for cause." I have found 48 such agencies, which I have listed in Appendix A, infra. Then it would be necessary to identify the senior officials in those agencies (just below the top) who themselves [3180] are removable only "for cause." I have identified 573 such high-ranking officials, whom I have listed in Appendix B, infra. They include most of the leadership of the Nuclear Regulatory Commission (including that agency's executive director as well as the directors of its Office of Nuclear Reactor Regulation and Office of Enforcement), virtually all of the leadership of the Social Security Administration, the executive directors of the Federal Energy Regulatory Commission and the Federal Trade Commission, as well as the general counsels of the Chemical Safety Board, the Federal Mine Safety and Health Review Commission, and the National Mediation Board.

This list is a conservative estimate because it consists only of career appointees in the Senior Executive Service (SES), see 5 U.S.C. §§ 2101a, 3132(a)(2), a group of high-ranking officials distinct from the "competitive service," see § 2101(a)(1)(C), who "serve in the key positions just below the top Presidential appointees," Office of Personnel Management, About the Senior Executive Service, online at http://www. opm.gov/ses/about_ses/index.asp; § 2102(a)(1)(C), and who are, without exception, subject to "removal" only for cause. §§ 7542-7543; see also § 2302(a)(2) (substantially limiting conditions under which "a career appointee in the Senior Executive Service" may be "transfer[red], or reassign[ed]"). SES officials include, for example, the Director of the Bureau of Prisons, the Director of the National Drug Intelligence Center, and the Director of the Office of International Monetary Policy in the Treasury Department. See Senate Committee on Homeland Security and Government Affairs, United States Government Policy and Supporting Positions (2008), pp. 99, 103, 129 (hereinafter Plum Book). And by virtually any definition, essentially all SES officials qualify as "inferior officers," for their duties, as defined by statute, require them to "direc[t] the work of an organizational unit," carry out high-level managerial functions, or "otherwise exercis[e] important policy-making, policy-determining, or other executive functions." § 3132(a)(2) (emphasis added). Cf. ante, at 3147 (describing an "inferior officer" as someone who "determines the policy and enforces the laws of the United States"); ante, at 3160 (acknowledging that career SES appointees in independent agencies may be rendered unconstitutional in future cases). Is the SES exempt from today's rule or is it not? The Court, after listing reasons why the SES may be different, simply says that it will not "addres[s]" the matter. Ante, at 3160-3161. Perhaps it does not do so because it cannot do so without revealing the difficulty of distinguishing the SES from the Accounting Board and thereby also revealing the inherent instability of the legal rule it creates.

The potential list of those whom today's decision affects is yet larger. As Justice SCALIA has observed, administrative law judges (ALJs) "are all executive officers." Freytag, 501 U.S., at 878, 111 S.Ct. 2631 (opinion concurring in part and concurring in judgment) (emphasis deleted); see also, e.g., id., at 881, 111 S.Ct. 2631 (majority opinion) ("[A] [tax-court] special trial judge is an `inferior Officer'"); Edmond, supra, at 654, 117 S.Ct. 1573 ("[M]ilitary trial and appellate judges are [inferior] officers"). But cf. ante, at 3160, n. 10. And ALJs are each removable "only for good cause established and determined by the Merit Systems Protection Board," 5 U.S.C. §§ 7521(a)-(b). But the members of the Merit Systems Protection Board are themselves protected from removal by the President absent good cause. § 1202(d).

My research reflects that the Federal Government relies on 1,584 ALJs to adjudicate administrative matters in over 25 [3181] agencies. See Appendix C, infra; see also Memorandum of Juanita Love, Office of Personnel Management, to Supreme Court Library (May 28, 2010) (available in Clerk of Court's case file). These ALJs adjudicate Social Security benefits, employment disputes, and other matters highly important to individuals. Does every losing party before an ALJ now have grounds to appeal on the basis that the decision entered against him is unconstitutional? Cf. ante, at 3160, n. 10 ("[O]ur holding also does not address" this question).

And what about the military? Commissioned military officers "are `inferior officers.'" Weiss, 510 U.S., at 182, 114 S.Ct. 752 (Souter, J., concurring); id., at 169-170, 114 S.Ct. 752 (majority opinion). There are over 210,000 active-duty commissioned officers currently serving in the armed forces. See Dept. of Defense, Active Duty Military Personnel by Rank (Apr. 30, 2010), online at http://siadapp. dmdc.osd.mil/personnel/MILITARY/ rg1004.pdf. Numerous statutory provisions provide that such officers may not be removed from office except for cause (at least in peacetime). See, e.g., 10 U.S.C. §§ 629-632, 804, 1161, 1181-1185. And such officers can generally be so removed only by other commissioned officers, see §§ 612, 825, 1187, who themselves enjoy the same career protections.

The majority might simply say that the military is different. But it will have to explain how it is different. It is difficult to see why the Constitution would provide a President who is the military's "commander-in-chief," Art. II, § 2, cl. 1, with less authority to remove "inferior" military "officers" than to remove comparable civil officials. See Barron & Lederman, The Commander in Chief at the Lowest Ebb— A Constitutional History, 121 Harv. L.Rev. 941, 1102-1106 (2008) (describing President's "superintendence prerogative" over the military). Cf. ante, at 3160-3161 (not "expressing any view whatever" as to whether military officers' authority is now unconstitutional).

The majority sees "no reason . . . to address whether" any of "these positions," "or any others," might be deemed unconstitutional under its new rule, preferring instead to leave these matters for a future case. Ante, at 3160-3161. But what is to happen in the meantime? Is the work of all these various officials to be put on hold while the courts of appeals determine whether today's ruling applies to them? Will Congress have to act to remove the "for cause" provisions? Cf. Buckley, 424 U.S., at 142-143, 96 S.Ct. 612. Can the President then restore them via executive order? And, still, what about the military? A clearer line would help avoid these practical difficulties.

The majority asserts that its opinion will not affect the Government's ability to function while these many questions are litigated in the lower courts because the Court's holding concerns only "the conditions under which th[e]se officers might some day be removed." Ante, at 3161. But this case was not brought by federal officials challenging their potential removal. It was brought by private individuals who were subject to regulation "`here-and-now'" and who "object to the" very "existence" of the regulators themselves. Ante, at 3164, 3150 (emphasis added). And those private individuals have prevailed. Thus, any person similarly regulated by a federal official who is potentially subject to the Court's amorphous new rule will be able to bring an "implied private right of action directly under the Constitution" "seeking . . . a declaratory judgment that" the official's actions are "unconstitutional and an injunction preventing the" official "from exercising [his] powers." Ante, at 3151, n. 2, 3088-3089; cf., e.g., Legal Services [3182] Corporation v. Velazquez, 531 U.S. 533, 546, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001) (affirming grant of preliminary injunction to cure, inter alia, a separation-of-powers violation); Youngstown Sheet & Tube Co., 343 U.S. 579, 72 S.Ct. 863 (same). Such a plaintiff need not even first exhaust his administrative remedies. Ante, at 3149-3151.

Nor is it clear that courts will always be able to cure such a constitutional defect merely by severing an offending removal provision. For a court's "ability to devise [such] a judicial remedy . . . often depends on how clearly" the "background constitutional rules at issue" have been "articulated"; severance will be unavailable "in a murky constitutional context," which is precisely the context that the Court's new rule creates. Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329, 330, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006). Moreover, "the touchstone" of the severability analysis "is legislative intent," id., at 330, 126 S.Ct. 961, and Congress has repeatedly expressed its judgment "over the last century that it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service," Civil Service Comm'n, 413 U.S., at 557, 93 S.Ct. 2880; see also Bush v. Lucas, 462 U.S. 367, 380-388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (describing the history of "Congressional attention to the problem of politically-motivated removals"). And so it may well be that courts called upon to resolve the many questions the majority's opinion raises will not only apply the Court's new rule to its logical conclusion, but will also determine that the only available remedy to certain double for-cause problems is to invalidate entire agencies.

Thus, notwithstanding the majority's assertions to the contrary, the potential consequences of today's holding are worrying. The upshot, I believe, is a legal dilemma. To interpret the Court's decision as applicable only in a few circumstances will make the rule less harmful but arbitrary. To interpret the rule more broadly will make the rule more rational, but destructive.

III

One last question: How can the Court simply assume without deciding that the SEC Commissioners themselves are removable only "for cause?" See ante, at 3148-3149 ("[W]e decide the case with th[e] understanding" "that the Commissioners cannot themselves be removed by the President except" for cause (emphasis added)). Unless the Commissioners themselves are in fact protected by a "for cause" requirement, the Accounting Board statute, on the Court's own reasoning, is not constitutionally defective. I am not aware of any other instance in which the Court has similarly (on its own or through stipulation) created a constitutional defect in a statute and then relied on that defect to strike a statute down as unconstitutional. Cf. Alabama v. North Carolina, 560 U.S. ___, ___, 130 S.Ct. 2295, ___, ___ L.Ed.2d ___ (slip Op., at 20) (2010) (opinion for the Court by SCALIA, J.) ("We do not—we cannot—add provisions to a federal statute . . . especially [if] . . . separation-of-powers concerns . . . would [thereby] arise"); The Anaconda v. American Sugar Refining Co., 322 U.S. 42, 46, 64 S.Ct. 863, 88 L.Ed. 1117 (1944) (describing parties' inability to "stipulate away" what "the legislation declares").

It is certainly not obvious that the SEC Commissioners enjoy "for cause" protection. Unlike the statutes establishing the 48 federal agencies listed in Appendix A, infra, the statue that established the Commission says nothing about removal. It is [3183] silent on the question. As far as its text is concerned, the President's authority to remove the Commissioners is no different from his authority to remove the Secretary of State or the Attorney General. See Shurtleff, 189 U.S., at 315, 23 S.Ct. 535 ("To take away th[e] power of removal . . . would require very clear and explicit language. It should not be held to be taken away by mere inference or implication"); see also Memorandum from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, to the Principal Deputy Counsel to the President: Removability of the Federal Coordinator for Alaska Natural Gas Transportation Projects, p. 2 (Oct. 23, 2009), online at http:// justice.gov/olc/2009/gas-transportproject. pdf ("[Where] Congress did not explicitly provide tenure protection . . . the President, consistent with . . . settled principles, may remove . . . without cause"); The Constitutional Separation of Powers Between the President and Congress, 20 Op. Legal Counsel 124, 170 (1996) (same).

Nor is the absence of a "for cause" provision in the statute that created the Commission likely to have been inadvertent. Congress created the Commission during the 9-year period after this Court decided Myers, and thereby cast serious doubt on the constitutionality of all "for cause" removal provisions, but before it decided Humphrey's Executor, which removed any doubt in respect to the constitutionality of making commissioners of independent agencies removable only for cause. In other words, Congress created the SEC at a time when, under this Court's precedents, it would have been unconstitutional to make the Commissioners removable only for cause. And, during that 9-year period, Congress created at least three major federal agencies without making any of their officers removable for cause. See 48 Stat. 885, 15 U.S.C. § 78d (Securities and Exchange Commission), 48 Stat. 1066, 47 U.S.C. § 154 (Federal Communications Commission); 46 Stat. 797 (Federal Power Commission) (reformed post-Humphrey's Executor as the Federal Energy Regulatory Commission with "for cause" protection, 91 Stat. 582, 42 U.S.C. § 7171). By way of contrast, only one month after Humphrey's Executor was decided, Congress returned to its pre-Myers practice of including such provisions in statutes creating independent commissions. See § 3, 49 Stat. 451, 29 U.S.C. § 153 (establishing National Labor Relations Board with an explicit removal limitation).

The fact that Congress did not make the SEC Commissioners removable "for cause" does not mean it intended to create a dependent, rather than an independent agency. Agency independence is a function of several different factors, of which "for cause" protection is only one. Those factors include, inter alia, an agency's separate (rather than presidentially dependent) budgeting authority, its separate litigating authority, its composition as a multimember bipartisan board, the use of the word "independent" in its authorizing statute, and, above all, a political environment, reflecting tradition and function, that would impose a heavy political cost upon any President who tried to remove a commissioner of the agency without cause. See generally Breger & Edles 1135-1155.

The absence of a "for cause" provision is thus not fatal to agency independence. Indeed, a "Congressional Research Service official suggests that there are at least 13 `independent' agencies without a removal provision in their statutes." Id., at 1143, n. 161 (emphasis added) (citing congressional testimony). But it does draw the majority's rule into further confusion. For not only are we left without a definition of an "inferior officer," but we are also left to guess which department heads will be [3184] deemed by the majority to be subject to for-cause removal notwithstanding statutes containing no such provision. If any agency deemed "independent" will be similarly treated, the scope of the majority's holding is even broader still. See Appendix D, infra (listing agencies potentially affected).

The Court then, by assumption, reads into the statute books a "for cause removal" phrase that does not appear in the relevant statute and which Congress probably did not intend to write. And it does so in order to strike down, not to uphold, another statute. This is not a statutory construction that seeks to avoid a constitutional question, but its opposite. See Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case" (internal quotation marks omitted)); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) ("[A]n Act of Congress ought not to be construed to violate the Constitution if any other possible construction remains available").

I do not need to decide whether the Commissioners are in fact removable only "for cause" because I would uphold the Accounting Board's removal provision as constitutional regardless. But were that not so, a determination that the silent SEC statute means no more than it says would properly avoid the determination of unconstitutionality that the Court now makes.

* * *

In my view the Court's decision is wrong—very wrong. As Parts II-A, II-B, and II-C of this opinion make clear, if the Court were to look to the proper functional and contextual considerations, it would find the Accounting Board provision constitutional. As Part II-D shows, insofar as the Court instead tries to create a bright-line rule, it fails to do so. Its rule of decision is both imprecise and overly broad. In light of the present imprecision, it must either narrow its rule arbitrarily, leaving it to apply virtually alone to the Accounting Board, or it will have to leave in place a broader rule of decision applicable to many other "inferior officers" as well. In doing the latter, it will undermine the President's authority. And it will create an obstacle, indeed pose a serious threat, to the proper functioning of that workable Government that the Constitution seeks to create—in provisions this Court is sworn to uphold.

With respect I dissent.

APPENDIXES

A

There are 24 stand-alone federal agencies (i.e., "departments") whose heads are, by statute, removable by the President only "for cause." Moreover, there are at least 24 additional offices, boards, or bureaus situated within departments that are similarly subject, by statute, to for-cause removal provisions. The chart below first lists the 24 departments and then lists the 24 additional offices, boards, and bureaus. I have highlighted those instances in which a "for-cause" office is situated within a "for-cause" department—i.e., instances of "double for-cause" removal that are essentially indistinguishable from this case (with the notable exception that the Accounting Board may not be statutorily subject to two layers of for-cause removal, cf. Part III, supra). This list does not include instances of "double for-cause" removal that arise in Article I courts, although such instances might also be affected by the majority's holding, cf. ante, at ___, n. 10. Compare 48 U.S.C. §§ 1424(a), 1614(a), [3185] with 28 U.S.C. §§ 631(a), (i), and 18 U.S.C. §§ 23, 3602(a).

---------------------------------------------------------------------------
     |    Department        |   Statutory Removal Provision
-----|----------------------|----------------------------------------------
     |                      | Any member of the Board, including the
  1  |  Chemical Safety     | Chairperson, may be removed for
     |      Board           | inefficiency, neglect of duty, or malfeasance
     |                      | in office." 42 U. S. C. §7412(r)(6)(B)
-----|----------------------|----------------------------------------------
     |                      | "The President may remove a member of
     |  Commission on Civil | the Commission only for neglect of duty or
  2  |        Rights        | malfeasance in office." 42 U. S. C. §1975(e)
-----|----------------------|----------------------------------------------
     |                      | "Any member of the Commission may be
  3  |  Consumer Product    | removed by the President for neglect of
     |  Safety Commission   | duty or malfeasance in office but for no
     |                      | other cause." 15 U. S. C. §2053(a)
---------------------------------------------------------------------------

 [3186] 
---------------------------------------------------------------------------
     |                      | "Members shall hold office for a term of
     |  Federal Energy      | 5 years and may be removed by the
  4  |    Regulatory        | President only for inefficiency, neglect
     |    Commission        | of duty, or malfeasance in office." 42
     |                      | U. S. C. §7171(b)(1)
-----|----------------------|----------------------------------------------
     |                      | "Members of the Authority shall be
     |                      | appointed by the President by and with the
     |                      | advice and consent of the Senate, and may
     |     Federal Labor    | be removed by the President only upon
  5  |  Relations Authority | notice and hearing and only for
     |                      | inefficiency, neglect of duty, or malfeasance
     |                      | in office." 5 U. S. C. §7104(b)
-----|----------------------|----------------------------------------------
     |                      | "The President may remove a Commissioner
     |  Federal Maritime    | for inefficiency, neglect of duty, or
  6  |    Commission        | malfeasance in office." 46 U. S. C. §301(b)(3)
-----|----------------------|----------------------------------------------
     |  Federal Mine Safety | "Any member of the Commission may be
  7  |  and Health Review   | removed by the President for inefficiency,
     |    Commission        | neglect of duty, or malfeasance in office."
     |                      | 30 U. S. C. §823(b)(1)
-----|----------------------|----------------------------------------------
     |                      | "[E]ach member shall hold office for a
     |                      | term of fourteen years from the
  8  |  Federal Reserve     | expiration of the term of his
     |      Board           | predecessor, unless sooner removed for
     |                      | cause by the President." 12 U. S. C.
     |                      | §242
-----|----------------------|----------------------------------------------
     |  Federal Trade       | "Any commissioner may be removed by the
     |   Commission         | President for inefficiency, neglect of duty, or
  9  |                      | malfeasance in office." 15 U. S. C. §41
-----|----------------------|----------------------------------------------
     |                      | "Any appointed member may be removed
     |    Independent       | by the President for neglect of duty or
  10 |  Medicare Advisory   | malfeasance in office, but for no other
     |       Board          | cause." Pub. L. 111-148, §3403.
-----|----------------------|----------------------------------------------
     |                      | "Any member may be removed by the
  11 |   Merit Systems      | President only for inefficiency, neglect
     |  Protection Board    | of duty, or malfeasance in office." 5
     |                      | U. S. C. §1202(d)
---------------------------------------------------------------------------

 [3187] 
---------------------------------------------------------------------------
     |                      | "Any member of the Board may be
     |                      | removed by the President, upon notice
  12 |  National Labor      | and hearing, for neglect of duty or
     |  Relations Board     | malfeasance in office, but for no other
     |                      | cause." 29 U. S. C. §153(a)
-----|----------------------|----------------------------------------------
     |                      | "A member of the Board may be
     |                      | removed by the President for
  13 |  National Mediation  | inefficiency, neglect of duty,
     |        Board         | malfeasance in office, or ineligibility,
     |                      | but for no other cause." 45 U. S. C. §154
-----|----------------------|----------------------------------------------
     |       National       | "The President may remove a member for
  14 |    Transportation    | inefficiency, neglect of duty, or malfeasance
     |     Safety Board     | in office." 49 U. S. C. §1111(c)
-----|----------------------|----------------------------------------------
     |                      | "Any member of the Commission may be
     |      Nuclear         | removed by the President for
  15 |     Regulatory       | inefficiency, neglect of duty, or
     |     Commission       | malfeasance in office." 42 U. S. C.
     |                      | §5841(e)
-----|----------------------|----------------------------------------------
     |                      | "A member of the Commission may be
     |  Occupational Safety | removed by the President for
  16 |  and Health Review   | inefficiency, neglect of duty, or
     |      Commission      | malfeasance in office." 29 U. S. C.
     |                      | §661(b)
-----|----------------------|----------------------------------------------
     |                      | "The Special Counsel may be removed
  17 |  Office of Special   | by the President only for inefficiency,
     |      Counsel         | neglect of duty, or malfeasance in
     |                      | office." 5 U. S. C. §1211(b)
-----|----------------------|----------------------------------------------
     |                      | "The Commissioners shall be chosen
     |                      | solely on the basis of their technical
     |                      | qualifications, professional standing, and
  18 |  Postal Regulatory   | demonstrated expertise in economics,
     |     Commission       | accounting, law, or public administration,
     |                      | and may be removed by the President
     |                      | only for cause." 39 U. S. C. §502(a)
---------------------------------------------------------------------------

 [3188] 
---------------------------------------------------------------------------
     |                      | "The exercise of the power of the Postal
     |                      | Service shall be directed by a Board of
     |                      | Governors composed of 11 members . . . .
  19 |  Postal Service*     | The Governors shall not be
     |                      | representatives of specific interests using
     |                      | the Postal Service, and may be removed
     |                      | only for cause." 39 U. S. C. §202
-----|----------------------|-----------------------------------------------
     |                      | "[The] Commissioner may be removed from
     |   Social Security    | office only pursuant to a finding by the
  20 |   Administration     | President of neglect of duty or malfeasance
     |                      | in office." 42 U. S. C. §902(a)(3)
-----|----------------------|----------------------------------------------
     |                      | "A member of the Board appointed under
     |                      | subsection (b)(5) . . . may be removed by
     |  United States       | the President . . . in consultation with
  21 |  Institute of Peace* | the Board, for conviction of a felony,
     |                      | malfeasance in office, persistent neglect
     |                      | of duties, or inability to discharge
     |                      | duties." 22 U. S. C. §4605(f)
-----|----------------------|----------------------------------------------
     |                      | "The Chair, Vice Chairs, and members
     |                      | of the Commission shall be subject to
     |  United States       | removal from the Commission by the
  22 |   Sentencing         | President only for neglect of duty or
     |   Commission         | malfeasance in office or for other good
     |                      | cause shown." 28 U. S. C. §991(a)
-----|----------------------|----------------------------------------------
     |                      | "A member of the Board may be removed
     |                      | by a vote of seven members for
     |                      | malfeasance in office or for persistent
     |  Legal Services      | neglect of or inability to discharge duties,
  23 |   Corporation*       | or for offenses involving moral turpitude,
     |                      | and for no other cause." 42 U. S. C.
     |                      | §2996c(e)
-----|----------------------|----------------------------------------------
     |                      | "A member of the Board may be removed
     |                      | by a vote of seven members for
     |  State Justice       | malfeasance in office, persistent neglect of,
  24 |  Institute*          | or inability to discharge duties, or for any
     |                      | offense involving moral turpitude, but for
     |                      | no other cause." 42 U. S. C. §10703(h)
---------------------------------------------------------------------------

Editor's Note: The preceding image contains the reference for footnote^[14].

 [3189] 
-------------------------------------------------------------------------------
     |   Office Within        |     Statutory Removal Provision
     |    Department          |
-----|-------------------------------------------------------------------------
     |                        | "The Division shall be headed by a
     |                        | Director, appointed by the Secretary
     |   Department of        | from among persons who have substantial
     |    Agriculture:        | experience in practicing administrative
  25 |                        | law. . . . The Director shall not be
     |  National Appeals      | subject to removal during the term of
     |     Division           | office, except for cause established in
     |                        | accordance with law." 7  U. S. C.
     |                        | §§6992(b)(1)-(2)
-----|------------------------|------------------------------------------------
     |    Department of       | "The Secretary may remove for cause
     |     Agriculture:       | any member of a Council required to be
  26 |                        | appointed by the Secretary . . . ." 16
     |   Regional Fishery     | U. S. C. §1852(b)(6)
     |  Management Councils   |
-----|------------------------|------------------------------------------------
     |     Department of      | "The Secretary of Commerce may
     |       Commerce:        | remove any member of the board [of the
  27 |                        | Corporation] for good cause." 124 Stat.
     | Corporation for Travel | 57
     |      Promotion†        |
-----|------------------------|------------------------------------------------
     |     Department of      | "The Chief of Navy Reserve is appointed
     |       Defense:         | for a term determined by the Chief of
  28 |                        | Naval Operations, normally four years,
     |      Office of         | but may be removed for cause at any
     |     Navy Reserve       | time." 10 U. S. C. §5143(c)(1)
-----|------------------------|------------------------------------------------
     |                        | "The Commander, Marine Forces
     |    Department of       | Reserve, is appointed for a term determined
     |      Defense:          | by the Commandant of the
  29 |                        | Marine Corps, normally four years, but
     |   Office of Marine     | may be removed for cause at any time."
     |   Forces Reserve       | 10 U. S. C. §5144(c)(1)
-----|------------------------|------------------------------------------------
     |     Department of      | "The Chief of Air Force Reserve is
     |       Defense:         | appointed for a period of four years, but
  30 |                        | may be removed for cause at any time."
     |  Office of Air Force   | 10 U. S. C. §8038(c)(1)
     |       Reserve          |
-----|------------------------|------------------------------------------------
     |    Department of       | "[A]n officer appointed as Director of the
     |      Defense:          | Joint Staff of the National Guard Bureau
     |                        | serves for a term of four years, but may
  31 |  Joint Staff of the    | be removed from office at any time for
     |  National Guard        | cause." 10 U. S. C. §10505(a)(3)(A)
     |       Bureau           |
-------------------------------------------------------------------------------

Editor's Note: The preceding image contains the reference for footnote^[15]

 [3190] 
-------------------------------------------------------------------------------
     |                        | "A member of the Board may be removed
     |    Department of       | by the Secretary of Defense only
  32 |      Defense:          | for misconduct or failure to perform
     |                        | functions vested in the Board." 10
     |  Board of Actuaries    | U. S. C. A. §183(b)(3) (2010)
-----|------------------------|------------------------------------------------
     |   Department of        | "A member of the Board may be removed
     |     Defense:           | by the Secretary of Defense for misconduct
     |                        | or failure to perform functions
  33 |  Medicare-Eligible     | vested in the Board, and for no other
     | Retiree Health Care    | reason." 10 U. S. C. §1114(a)(2)(A)
     | Board of Actuaries     |
-----|------------------------|------------------------------------------------
     |    Department of       |
     |     Education:         | "The Chief Operating Officer may be
     |                        | removed by . . . the President; or . . . the
     |  Performance-Based     | Secretary, for misconduct or failure to
  34 | Organization for the   | meet performance goals set forth in the
     | Delivery of Federal    | performance agreement in paragraph
     |  Student Financial     | (4)." 20 U. S. C. §1018(d)(3)
     |     Assistance         |
-----|------------------------|------------------------------------------------
     |    Federal Labor       | "The Chairperson [of the FLRA, who
     |  Relations Authority:  | also chairs the Board] may remove any
     |                        | other Board member . . . for corruption,
  35 |  Foreign Service Labor | neglect of duty, malfeasance, or demonstrated
     |    Relations Board     | incapacity to perform his or her
     |  (see supra, row 5)    | functions . . . ." 22 U. S. C. §4106(e)
-----|------------------------|------------------------------------------------
     |   General Services     | "Members of the Civilian Board shall be
     |   Administration:      | subject to removal in the same manner as
     |                        | administrative law judges, [i.e., `only for
  36 |   Civilian Board of    | good cause established and determined by
     |   Contract Appeals     | the Merit Systems Protection Board.']" 41
     |  (see supra, row 11)   | U. S. C. §438(b)(2) (emphasis added)
-----|------------------------|------------------------------------------------
     |  Department of Health  |
     |  and Human Services:   |
     |                        |
     |  National Advisory     | "No member shall be removed, except
  37 |     Council on         | for cause." 42 U. S. C. §254j(b)
     |   National Health      |
     |    Service Corps       |
-------------------------------------------------------------------------------

 [3191] 
-------------------------------------------------------------------------------
     | Department of Health   |
     | and Human Services:    |
     |                        |
  38 | Medicare & Medicaid    | "The Chief Actuary may be removed
     | Office of the Chief    | only for cause." 42 U. S. C. §1317(b)(1)
     |      Actuary           |
-----|------------------------|------------------------------------------------
     |    Department of       |
     |  Homeland Security:    | "An officer may be removed from the
     |                        | position of Director for cause at any
  39 |  Office of the Coast   | time." 14 U. S. C. §53(c)(1)
     |    Guard Reserve       |
-----|------------------------|------------------------------------------------
     |                        | "A Commissioner may only be removed from
     |   Department of the    | office before the expiration of the term of
     |      Interior:         | office of the member by the President (or, in
  40 |                        | the case of associate member, by the Secretary)
     |   National Indian      | for neglect of duty, or malfeasance in
     |  Gaming Commission     | office, or for other good cause shown." 25
     |                        | U. S. C. §2704(b)(6)
-----|------------------------|------------------------------------------------
     |                        | "The Librarian of Congress may sanction
     |  Library of Congress:  | or remove a Copyright Royalty
     |                        | Judge for violation of the standards of
  41 |  Copyright Royalty     | conduct adopted under subsection (h),
     |     Judgeships         | misconduct, neglect of duty, or any
     |                        | disqualifying physical or mental disability."
     |                        | 17 U. S. C. §802(i)
-----|------------------------|------------------------------------------------
     |    Postal Service:     | "The Inspector General may at any time
     |                        | be removed upon the written concurrence
  42 |   Inspector General    | of at least 7 Governors, but only
     |  (see supra, row 19)   | for cause." 39 U. S. C. §202(e)(3)
-----|------------------------|------------------------------------------------
     |      Securities        |
     |     and Exchange       | "A member of the Board may be removed
     |      Commission:       | by the Commission from office . . . for
     |                        | good cause shown . . . ." 15 U. S. C.
  43 |     Public Company     | §7211(e)(6)
     |  Accounting Oversight  |
     |        Board           |
-----|------------------------|------------------------------------------------
     |    Social Security     |
     |    Administration:     |
     |                        | "The Chief Actuary may be removed
  44 |  Office of the Chief   | only for cause." 42 U. S. C. §902(c)(1)
     |       Actuary          |
     |  (see supra, row 20)   |
-------------------------------------------------------------------------------

 [3192] 
-------------------------------------------------------------------------------
     |                        | "The Secretary of State may, upon
     |                        | written notice, remove a Board member
     |  Department of State:  | for corruption, neglect of duty, malfeasance,
     |                        | or demonstrated incapacity to
  45 |    Foreign Service     | perform his or her functions, established
     |    Grievance Board     | at a hearing (unless the right to a
     |                        | hearing is waived in writing by the
     |                        | Board member)." 22 U. S. C. §4135(d)
-----|------------------------|------------------------------------------------
     |     Department of      |
     |    Transportation:     | "Any member of the Committee may be
  46 |                        | removed for cause by the Secretary." 49
     |  Air Traffic Services  | U. S. C. §106(p)(6)(G)
     |      Committee         |
-----|------------------------|------------------------------------------------
     |     Department of      |
     |    Transportation:     | "The President may remove a member for
  47 |                        | inefficiency, neglect of duty, or malfeasance
     |       Surface          | in office." 49 U. S. C. §701(b)(3)
     |  Transportation Board  |
-----|------------------------|------------------------------------------------
     |                        | "The Chairman may be removed by the
     |                        | President for misconduct, inefficiency,
     |                        | neglect of duty, or engaging in the
     |    Department of       | practice of law or for physical or mental
  48 |  Veterans Affairs:     | disability which, in the opinion of the
     |                        | President, prevents the proper execution
     |      Board of          | of the Chairman's duties. The
     |  Veterans Appeals      | Chairman may not be removed from
     |                        | office by the President on any other
     |                        | grounds." 38 U. S. C. §7101(b)(2)
-------------------------------------------------------------------------------

B

The table that follows lists the 573 career appointees in the Senior Executive Service (SES) who constitute the upper level management of the independent agencies listed in Appendix A, supra. Each of these officials is, under any definition—including the Court's—an inferior officer, and is, by statute, subject to two layers of for-cause removal. See supra, at 25-30.

The data are organized into three columns: The first column lists the "office" to which the corresponding official is assigned within the respective agency and, where available, the provision of law establishing that office. Cf. supra, at 27 (citing Mouat, 124 U.S., at 307-308, 8 S.Ct. 505; Germaine, 99 U.S., at 510). The second and third columns respectively list the career appointees in each agency who occupy "general" and "reserved" SES positions. A "general" position is one that could be filled by either a career appointee or by a noncareer appointee were the current (career) occupant to be replaced. See 5 U.S.C. § 3132(b)(1). Because 90% of all SES positions must be filled by career appointees, § 3134(b), "most General positions are filled by career appointees," Plum Book 200. A "reserved" position, by contrast, must always be filled by a career appointee. § 3132(b)(1). The data for the "general position" column come from the 2008 Plum Book, a quadrennial manual prepared by the congressional committees responsible for government oversight. [3193] See supra, at 29. Positions listed as vacant in that source are not included. The data for the "reserved position" column come from a list periodically published by the Office of Personnel Management and last published in 2006. See 72 Fed.Reg. 16154-16251 (2007); § 3132(b)(4). Given the Federal Government's size and the temporal lag between the underlying sources, the list that follows is intended to be illustrative, not exact.

----------------------------------------------------------------------------------------------
                          Nuclear Regulatory Commission (192)
----------------------------------------------------------------------------------------------
       Office           |         General Position          |       Reserved Position
------------------------|-----------------------------------|---------------------------------
                        |       Executive Director          |  Director of Nuclear Security
                        |                                   |             Projects
                        |-----------------------------------|---------------------------------
                        |   Deputy Executive Director for   |
                        |     Reactor and Preparedness      |
                        |             Programs              |
                        |-----------------------------------|---------------------------------
                        |   Deputy Executive Director for   |
    Office of the       |    Materials, Waste, Research,    |
Executive Director for  |       State, Tribal, and          |
     Operations         |      Compliance, Programs         |
10 CFR § 1.32 (2009)    |-----------------------------------|---------------------------------
                        |   Deputy Executive Director for   |
                        |        Corporate Management       |
                        |-----------------------------------|---------------------------------
                        |     Assistant for Operations      |
                        |-----------------------------------|---------------------------------
                        |       Director for Strategic      |
                        |     Organizational Planning and   |
                        |            Optimization           |
------------------------|-----------------------------------|---------------------------------
    Office of the       |                                   |
      Secretary         |              Secretary            |
    10 CFR § 1.25       |                                   |
------------------------|-----------------------------------|---------------------------------
                        |                                   | Director, Division of Planning,
                        |       Chief Financial Officer     |       Budget and Analysis
                        |-----------------------------------|---------------------------------
 Office of the Chief    |                                   | Director, Division of Financial
  Financial Officer     |                                   |             Services
   10 CFR § 1.31        |-----------------------------------|---------------------------------
                        |                                   |     Deputy Chief Financial
                        |                                   |              Officer
                        |-----------------------------------|---------------------------------
                        |                                   | Director, Division of Financial
                        |                                   |            Management
------------------------|-----------------------------------|---------------------------------
                        |                                   |     Deputy Inspector General
                        |-----------------------------------|---------------------------------
Office of the Inspector |                                   |    Assistant Inspector General
      General           |                                   |             for Audits
  10 CFR § 1.12         |-----------------------------------|---------------------------------
                        |                                   |    Assistant Inspector General
                        |                                   |         for Investigations
------------------------|-----------------------------------|---------------------------------
                        |                                   |        Director, Commission
                        |         General Counsel           |       Adjudicatory Technical
                        |                                   |                Support
                        |-----------------------------------|---------------------------------
                        |                                   |       Deputy Assistant General
 Office of the General  |      Deputy General Counsel       |      Counsel for Rulemaking and
       Counsel          |                                   |              Fuel Cycle
   10 CFR § 1.23        |-----------------------------------|---------------------------------
                        |            Solicitor              |       Deputy Assistant General
                        |                                   |      Counsel for Administration
                        |-----------------------------------|---------------------------------
                        |   Associate General Counsel for   |  Assistant General Counsel for
                        |      Licensing and Regulation     |       Operating Reactors
                        |-----------------------------------|---------------------------------
                        |   Assistant General Counsel for   |
                        |     Rulemaking and Fuel Cycle     |
----------------------------------------------------------------------------------------------

 [3194] 
----------------------------------------------------------------------------------------------
                        |   Assistant General Counsel for   |
                        |     Legal Counsel, Legislation,   |
                        |        and Special Projects       |
                        |-----------------------------------|---------------------------------
                        |   Associate General Counsel for   |
                        |     Hearings, Enforcement, and    |
 Office of the General  |          Administration           |
       Counsel          |-----------------------------------|---------------------------------
     (Continued)        |   Assistant General Counsel for   |
                        |       New Reactor Programs        |
                        |-----------------------------------|---------------------------------
                        |   Assistant General Counsel for   |
                        |        Operating Reactors         |
                        |-----------------------------------|---------------------------------
                        |   Assistant General Counsel for   |
                        |       the High-Level Waste        |
                        |       Repository Programs         |
------------------------|-----------------------------------|---------------------------------
 Office of Commission   |                                   |
      Appellate         |                                   |
    Adjudication        |                                   |            Director
   10 CFR § 1.24        |                                   |
------------------------|-----------------------------------|---------------------------------
       Office of        |                                   |
 Congressional Affairs  |            Director               |
     10 CFR § 1.27      |                                   |
------------------------|-----------------------------------|---------------------------------
   Office of Public     |                                   |
        Affairs         |            Director               |
    10 CFR § 1.28       |                                   |
------------------------|-----------------------------------|---------------------------------
       Office of        |                                   |
    International       |            Director               |
       Programs         |-----------------------------------|---------------------------------
    10 CFR § 1.29       |         Deputy Director           |
------------------------|-----------------------------------|---------------------------------
       Office of        |                                   |
    Investigations      |            Director               |       Deputy Director
    10 CFR § 1.36       |                                   |
------------------------|-----------------------------------|---------------------------------
 Office of Enforcement  |                                   |
    10 CFR § 1.33       |            Director               |
------------------------|-----------------------------------|---------------------------------
                        |            Director               |       Deputy Director
                        |-----------------------------------|---------------------------------
                        |                                   | Director, Division of Contracts
      Office of         |-----------------------------------|---------------------------------
   Administration       |                                   |       Director, Division of
   10 CFR § 1.34        |                                   |      Administrative Services
                        |-----------------------------------|---------------------------------
                        |                                   | Director, Division of Facilities
                        |                                   |         and Security
------------------------|-----------------------------------|---------------------------------
                        |            Director               |
   Office of Human      |-----------------------------------|---------------------------------
     Resources          |        Deputy Director            |
   10 CFR § 1.39        |-----------------------------------|---------------------------------
                        |      Associate Director for       |
                        |     Training and Development      |
----------------------------------------------------------------------------------------------

 [3195] 
----------------------------------------------------------------------------------------------
                        |             Director              |          Deputy Director
                        |-----------------------------------|---------------------------------
                        |                                   |    Director, Information and
                        |                                   |    Records Services Division
                        |-----------------------------------|---------------------------------
                        |                                   |    Director, High-Level Waste
                        |                                   |       Business and Program
                        |                                   |        Integration Staff
                        |-----------------------------------|---------------------------------
 Office of Information  |                                   |    Director, Business Process
       Services         |                                   |         Improvement and
    10 CFR § 1.35       |                                   |           Applications
                        |-----------------------------------|---------------------------------
                        |                                   |         Director, Program
                        |                                   |         Management, Policy
                        |                                   |      Development and Analysis
                        |                                   |               Staff
                        |-----------------------------------|---------------------------------
                        |                                   |    Director, Infrastructure and
                        |                                   |         Computer Operations
------------------------|-----------------------------------|---------------------------------
   Office of Nuclear    |            Director               |         Deputy Director (2)
 Security and Incident  |-----------------------------------|---------------------------------
        Response        |                                   |          Director, Program
     10 CFR § 1.46      |                                   |         Management, Policy
                        |                                   |             Development
------------------------|-----------------------------------|---------------------------------
                        |                                   |               Director
                        |-----------------------------------|---------------------------------
                        |                                   |            Deputy Director
                        |-----------------------------------|---------------------------------
                        |                                   |      Project Director, Nuclear
                        |                                   |          Security Policy
                        |-----------------------------------|---------------------------------
 (Division of Security  |                                   |     Project Director, Nuclear
        Policy)         |                                   |         Security Operations
                        |-----------------------------------|---------------------------------
                        |                                   |   Deputy Director for Material
                        |                                   |              Security
                        |-----------------------------------|---------------------------------
                        |                                   |   Deputy Director for Reactor
                        |                                   |     Security and Rulemaking
------------------------|-----------------------------------|---------------------------------
                        |                                   |            Director
     (Division of       |-----------------------------------|---------------------------------
   Preparedness and     |                                   |         Deputy Director (2)
       Response)        |-----------------------------------|---------------------------------
                        |                                   |        Deputy Director for
                        |                                   |      Emergency Preparedness
------------------------|-----------------------------------|---------------------------------
                        |                                   |             Director
                        |-----------------------------------|---------------------------------
 (Division of Security  |                                   |    Deputy Director for Security
     Operations)        |                                   |             Oversight
                        |-----------------------------------|---------------------------------
                        |                                   |   Deputy Director for Security
                        |                                   |             Programs
------------------------|-----------------------------------|---------------------------------
                        |            Director               |         Director, Program
   Office of Nuclear    |                                   |          Management, etc.
  Reactor Regulation    |-----------------------------------|---------------------------------
    10 CFR § 1.43       |         Deputy Director           |      Deputy Director Program
                        |                                   |               Management etc.
----------------------------------------------------------------------------------------------

 [3196] 
----------------------------------------------------------------------------------------------
                        |                                   |  Associate Director, Operating
                        |                                   |       Reactor Oversight and
                        |                                   |           Licensing
   Office of Nuclear    |-----------------------------------|---------------------------------
  Reactor Regulation    |                                   |   Associate Director, Risk
     (Continued)        |                                   |  Assessment and New Projects
                        |-----------------------------------|---------------------------------
                        |                                   |    Associate Director,
                        |                                   |   Engineering and Safety
                        |                                   |          Systems
------------------------|-----------------------------------|---------------------------------
 (Division of Safety    |                                   |         Director
      Systems)          |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
 (Division of License   |                                   |         Director
      Renewal)          |-----------------------------------|---------------------------------
                        |                                   |     Deputy Director
------------------------|-----------------------------------|---------------------------------
    (Division of        |                                   |         Director
  Operating Reactor     |-----------------------------------|---------------------------------
      Licensing)        |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
    (Division of        |                                   |         Director
   Inspection and       |-----------------------------------|---------------------------------
  Regional Support)     |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
   (Division of New     |                                   |         Director
  Reactor Licensing)    |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
    (Division of        |                                   |         Director
    Engineering)        |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director (3)
------------------------|-----------------------------------|---------------------------------
  (Division of Risk     |                                   |         Director
     Assessment)        |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
  (Division of Policy   |                                   |          Director
    and Rulemaking)     |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
     (Division of       |                                   |          Director
  Component Integrity)  |-----------------------------------|---------------------------------
                        |                                   |       Deputy Director
------------------------|-----------------------------------|---------------------------------
    Office of New       |                                   |
       Reactors         |            Director               |  Assistant to the Director for
    10 CFR § 1.44       |                                   |    Transition Management
------------------------|-----------------------------------|---------------------------------
   Office of Nuclear    |                                   |  Director, Program Planning,
  Material Safety and   |            Director               |             etc.
      Safeguards        |-----------------------------------|---------------------------------
    10 CFR § 1.42       |         Deputy Director           |
------------------------|-----------------------------------|---------------------------------
                        |                                   | Chief, Special Projects Branch
                        |-----------------------------------|---------------------------------
   (Division of Fuel    |                                   |  Chief, Safety and Safeguards
   Cycle Safety and     |                                   |         Support Branch
     Safeguards)        |-----------------------------------|---------------------------------
                        |                                   |  Chief, Fuel Cycle Facilities
                        |                                   |              Branch
----------------------------------------------------------------------------------------------

 [3197] 
----------------------------------------------------------------------------------------------
                        |                                   |     Chief, Rulemaking and
(Division of Industrial |                                   |        Guidance Branch
  and Medical Nuclear   |-----------------------------------|---------------------------------
       Safety)          |                                   |  Chief, Materials Safety and
                        |                                   |        Inspection Branch
------------------------|-----------------------------------|---------------------------------
                        |                                   |   Deputy Director, Licensing
  (Division of High     |                                   |         and Inspection
     Level Waste        |-----------------------------------|---------------------------------
  Repository Safety)    |                                   |   Deputy Director, Technical
                        |                                   |      Review Directorate (2)
------------------------|-----------------------------------|---------------------------------
 (Spent Fuel Project    |                                   |   Deputy Director, Technical
       Office)          |                                   |        Reveiw Directorate
                        |-----------------------------------|----------------------------------
                        |                                   |    Deputy Director, Licensing
                        |                                   |          and Inspection
------------------------|-----------------------------------|---------------------------------
 Office of Federal and  |            Director               |         Deputy Director
  State Materials and   |-----------------------------------|---------------------------------
     Environmental      |                                   |
      Management        |                                   |    Director, Program Planning,
       Programs         |                                   |               etc.
    10 CFR § 1.41       |                                   |
------------------------|-----------------------------------|---------------------------------
                        |                                   |            Director
                        |-----------------------------------|---------------------------------
                        |                                   |        Deputy Director,
  (Division of Waste    |                                   |       Decommissioning (2)
    Management and      |-----------------------------------|---------------------------------
    Environmental       |                                   |        Deputy Director,
     Protection)        |                                   |    Environmental Protection (2)
                        |-----------------------------------|---------------------------------
                        |                                   |      Chief, Environmental and
                        |                                   |       Performance Assessment
------------------------|-----------------------------------|---------------------------------
(Division of Materials  |                                   |             Director
   Safety and State     |-----------------------------------|---------------------------------
     Agreements)        |                                   |          Deputy Director
------------------------|-----------------------------------|---------------------------------
    (Division of        |                                   |
 Intergovernmental      |                                   |             Director
    Liaison and         |-----------------------------------|---------------------------------
    Rule making)        |                                   |          Deputy Director
------------------------|-----------------------------------|---------------------------------
                        |                                   |       Director, Program
                        |            Director               |         Management, etc.
                        |-----------------------------------|---------------------------------
                        |         Deputy Director           |  Deputy Director for Materials
                        |                                   |         Engineering
                        |-----------------------------------|---------------------------------
                        |                                   |     Deputy Director for
  Office of Nuclear     |    Regional Administrator (4)     |     Engineering Research
 Regulatory Research    |                                   |         Applications
    10 CFR § 1.45       |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director for New
                        |                                   |   Reactors and Computational
                        |                                   |           Analysis
                        |-----------------------------------|---------------------------------
                        |                                   |      Deputy Director for
                        |                                   |     Probabilistic Risk and
                        |                                   |          Applications
----------------------------------------------------------------------------------------------

 [3198] 
----------------------------------------------------------------------------------------------
                        |                                   |      Deputy Director for
                        |                                   |    Operating Experience and
  Office of Nuclear     |                                   |          Risk Analysis
 Regulatory Research    |-----------------------------------|---------------------------------
    (Continued)         |                                   |     Deputy Director for
                        |                                   |    Radiation Protection,
                        |                                   |   Environmental Risk and
                        |                                   |       Waste Management
------------------------|-----------------------------------|---------------------------------
                        |                                   |  Chief, Generic Safety Issues
                        |                                   |            Branch
                        |-----------------------------------|---------------------------------
                        |                                   |  Chief, Electrical, Mechanical,
                        |                                   |     and Materials Branch
                        |-----------------------------------|---------------------------------
   (Division of         |                                   |    Chief, Structural and
   Engineering          |                                   |    Geological Engineering
   Technology)          |                                   |            Branch
                        |-----------------------------------|---------------------------------
                        |                                   |  Chief, Materials Engineering
                        |                                   |            Branch
                        |-----------------------------------|---------------------------------
                        |                                   |   Chief, Engineering Research
                        |                                   |       Applications Branch
------------------------|-----------------------------------|---------------------------------
                        |                                   |         Deputy Director
                        |-----------------------------------|---------------------------------
                        |                                   |   Chief, Advanced Reactors
                        |                                   |  and Regulatory Effectiveness
 (Division of Systems   |-----------------------------------|---------------------------------
     Analysis and       |                                   |   Chief, Safety Margins and
      Regulatory        |                                   |    Systems Analysis Branch
    Effectiveness)      |-----------------------------------|---------------------------------
                        |                                   |  Chief, Radiation Protection,
                        |                                   |             etc.
------------------------|-----------------------------------|---------------------------------
                        |                                   |        Deputy Director
                        |-----------------------------------|---------------------------------
  (Division of Risk     |                                   |   Chief, Operating Experience
    Analysis and        |                                   |      Risk Analysis Branch
    Application)        |-----------------------------------|---------------------------------
                        |                                   |    Chief, Probabilistic Risk
                        |                                   |         Analysis Branch
------------------------|-----------------------------------|---------------------------------
  (Division of Risk     |                                   |            Director
   Assessment and       |-----------------------------------|---------------------------------
  Special Projects)     |                                   |      Assistant Director(2)
------------------------|-----------------------------------|---------------------------------
  (Division of Fuel,    |                                   |
   Engineering and      |                                   |            Director
    Radiological        |-----------------------------------|---------------------------------
      Research)         |                                   |        Assistant Director
------------------------|-----------------------------------|---------------------------------
   Office of Small      |                                   |
 Business and Civil     |                                   |             Director
       Rights           |                                   |
   10 CFR § 1.37        |                                   |
------------------------|-----------------------------------|---------------------------------
 Advisory Committee     |                                   |
    on Reactor          |         Executive Director        |    Deputy Executive Director
    Safeguards          |                                   |
  10 CFR § 1.13         |                                   |
----------------------------------------------------------------------------------------------

 [3199] 
----------------------------------------------------------------------------------------------
                        |                                   |       Deputy Regional
                        |                                   |      Administrator (5)
                        |-----------------------------------|---------------------------------
                        |                                   |   Director, Division of Fuel
                        |                                   |      Facility Inspection (1)
                        |-----------------------------------|---------------------------------
                        |                                   |  Director, Division of Reactor
                        |                                   |          Projects (4)
                        |-----------------------------------|---------------------------------
                        |                                   |  Deputy Director, Division of
                        |                                   |      Reactor Projects (5)
                        |-----------------------------------|---------------------------------
  Regional Offices      |                                   |  Director, Division of Reactor
   10 CFR § 1.47        |                                   |      Safety (4)
                        |-----------------------------------|---------------------------------
                        |                                   |  Deputy Director, Division of
                        |                                   |       Reactor Safety (4)
                        |-----------------------------------|---------------------------------
                        |                                   |  Director, Division of Nuclear
                        |                                   |      Materials Safety (3)
                        |-----------------------------------|---------------------------------
                        |                                   |  Deputy Director, Division of
                        |                                   |    Nuclear Materials Safety
                        |-----------------------------------|---------------------------------
                        |                                   |  Deputy Director, Division of
                        |                                   |      Radiation Safety, etc.
----------------------------------------------------------------------------------------------
                         Social Security Administration (143)
----------------------------------------------------------------------------------------------
       Office           |         General Position          |       Reserved Position
------------------------|-----------------------------------|---------------------------------
                        |     Executive Counselor to the    |
                        |           Commissioner            |
                        |-----------------------------------|---------------------------------
                        |       Deputy Chief of Staff       |
     Office of the      |-----------------------------------|---------------------------------
     Commissioner       |      Director for Regulations     |
  33 Fed. Reg. 5828     |-----------------------------------|---------------------------------
        (1968)          |     Senior Advisor to the Deputy  |
                        |            Commissioner           |
                        |-----------------------------------|---------------------------------
                        |        Senior Advisor to the      |
                        |            Commissioner           |
------------------------|-----------------------------------|---------------------------------
       Office of        |                                   |
     International      |      Associate Commissioner for   |
       Programs         |        International Programs     |
  63 Fed. Reg. 41888    |                                   |
        (1998)          |                                   |
------------------------|-----------------------------------|---------------------------------
  Office of Executive   |                                   |
      Operations        |                                   |   Assistant Inspector General
  56 Fed. Reg. 15888    |                                   |
        (1991)          |                                   |
------------------------|-----------------------------------|---------------------------------
   Office of the Chief  |            Chief Actuary          |
       Actuary          |-----------------------------------|---------------------------------
42 U.S.C. § 902(c)(1)   | Deputy Chief Actuary, Long-Range  |
   33 Fed. Reg. 5828    |-----------------------------------|---------------------------------
                        | Deputy Chief Actuary, Short-Range |
----------------------------------------------------------------------------------------------

 [3200] 
----------------------------------------------------------------------------------------------
 Office of the Chief    |     Deputy Chief Information      |       Director, Office of
 Information Officer    |            Officer                |      Information Technology
  33 Fed. Reg. 5829     |                                   |          Systems Review
------------------------|-----------------------------------|---------------------------------
 Office of Information  |                                   |
      Technology        |    Associate Chief Information    |
      Investment        |            Officer                |
      Management        |                                   |
------------------------|-----------------------------------|---------------------------------
   Office of Budget,    |       Deputy Commissioner         |
      Finance and       |-----------------------------------|---------------------------------
      Management        |        Assistant Deputy           |
  60 Fed. Reg. 22099    |          Commissioner             |
        (1995)          |                                   |
------------------------|-----------------------------------|---------------------------------
  Office of Acquisition |                                   |
      and Grants        |      Associate Commissioner       |
   60 Fed. Reg. 22099   |                                   |
------------------------|-----------------------------------|---------------------------------
                        |      Associate Commissioner       |
    Office of Budget    |-----------------------------------|---------------------------------
   60 Fed. Reg. 22099   |         Deputy Associate          |
                        |          Commissioner             |
------------------------|-----------------------------------|---------------------------------
  Office of Facilities  |      Associate Commissioner       |
       Management       |-----------------------------------|---------------------------------
   60 Fed. Reg. 22099   |        Deputy Associate           |
                        |          Commissioner             |
------------------------|-----------------------------------|---------------------------------
  Office of Financial   |      Associate Commissioner       |
 Policy and Operations  |-----------------------------------|---------------------------------
  56 Fed. Reg. 15888    |        Deputy Associate           |
                        |          Commissioner             |
------------------------|-----------------------------------|---------------------------------
Office of Publications  |      Associate Commissioner       |
    and Logistics       |-----------------------------------|---------------------------------
     Management         |         Deputy Associate          |
 60 Fed. Reg. 22099     |          Commissioner             |
------------------------|-----------------------------------|---------------------------------
     Office of          |         Assistant Deputy          |
  Communications        |          Commissioner             |
 62 Fed. Reg. 9476      |-----------------------------------|---------------------------------
      (1997)            |          Press Officer            |
------------------------|-----------------------------------|---------------------------------
    Office of           |                                   |
  Communications        |                                   |
   Planning and         |      Associate Commissioner       |
   Technology           |                                   |
 63 Fed. Reg. 15476     |                                   |
------------------------|-----------------------------------|---------------------------------
  Office of Public      |                                   |
      Inquiries         |      Associate Commissioner       |
  62 Fed. Reg. 9477     |                                   |
----------------------------------------------------------------------------------------------

 [3201] 
---------------------------------------------------------------------------------------------
 Office of Disability    |       Deputy Commissioner       |
    Adjudication and     |---------------------------------|---------------------------------
       Review            |         Assistant Deputy        |
                         |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
 Office of Appellate     |                                 |
      Operations         |        Executive Director       |
 53 Fed. Rag. 29778      |                                 |
        (1988)           |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of the General   |                                 |
  Counsel 65 Fed. Reg.   |      Deputy General Counsel     |
     39218 (2000)        |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of General Law   |    Associate General Counsel    |
   65 Fed. Reg. 39218    |                                 |
-------------------------|---------------------------------|---------------------------------
    Office of Public     |                                 |
       Disclosure        |       Executive Director        |
   67 Fed. Reg. 63186    |                                 |
         (2002)          |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Regional    |                                 |
    Chief Counsels       |    Regional Chief Counsel (7)   |
   65 Fed. Reg. 39219    |                                 |
-------------------------|---------------------------------|---------------------------------
     Office of Human     |       Deputy Commissioner       |
                         |---------------------------------|---------------------------------
        Resources        |         Assistant Deputy        |
   60 Fed. Reg. 22128    |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
 Office of Civil Rights  |                                 |
       and Equal         |                                 |
      Opportunity        |      Associate Commissioner     |
   60 Fed. Reg. 22128    |                                 |
-------------------------|---------------------------------|---------------------------------
     Office of Labor     |      Associate Commissioner     |
                         |---------------------------------|---------------------------------
     Management and      |         Deputy Associate        |
   Employee Relations    |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
   Office of Personnel   |      Associate Commissioner     |
                         |---------------------------------|---------------------------------
    60 Fed. Reg. 22128   |         Deputy Associate        |
                         |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
    Office of Training   |      Associate Commissioner     |
    60 Fed. Reg. 22128   |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of the Inspector |    Deputy Inspector General     |
         General         |---------------------------------|---------------------------------
   42 U. S. C. § 902(e)  |   Counsel to the Inspector      |
    60 Fed. Reg. 22133   |           General               |
-------------------------|---------------------------------|---------------------------------

 [3202] 
-------------------------|---------------------------------|---------------------------------
                         |  Assistant Inspector General    |
   Office of Audits      |          for Audit              |
  60 Fed. Reg. 22133     |---------------------------------|---------------------------------
                         |  Deputy Assistant Inspector     |
                         |      General for Audit          |
-------------------------|---------------------------------|---------------------------------
                         |  Assistant Inspector General    |
                         |---------------------------------|---------------------------------
                         |   Deputy Assistant Inspector    |
        Office of        |       General for Field         |
     Investigations      |         Investigations          |
                         |---------------------------------|---------------------------------
   60 Fed. Reg. 22133    |   Deputy Assistant Inspector    |
                         |      General for National       |
                         |   Investigative Operations      |
-------------------------|---------------------------------|---------------------------------
  Office of Legislation  |                                 |
     and Congressional   |  Senior Advisor to the Deputy   |
         Affairs         |         Commissioner            |
   60 Fed. Reg. 22152    |                                 |
-------------------------|---------------------------------|---------------------------------
  Office of Legislative  |                                 |
       Development       |    Associate Commissioner       |
   65 Fed. Reg. 10846    |                                 |
-------------------------|---------------------------------|---------------------------------
                         |      Deputy Commissioner        |
                         |---------------------------------|---------------------------------
  Office of Operations   |       Assistant Deputy          |
   60 Fed. Reg. 22107    |         Commissioner            |
-------------------------|---------------------------------|---------------------------------
  Office of Automation   |                                 |
         Support         |    Associate Commissioner       |
    60 Fed. Reg. 22108   |                                 |
-------------------------|---------------------------------|---------------------------------
                         |    Associate Commissioner       |
                         |---------------------------------|---------------------------------
                         |       Deputy Associate          |
                         |         Commissioner            |
                         |---------------------------------|---------------------------------
    Office of Central    |     Assistant Associate         |
        Operations       |         Commissioner            |
                         |---------------------------------|---------------------------------
    63 Fed. Reg. 32275   |     Assistant Associate         |
                         |        Commissioner for         |
                         |   Management and Operations     |
                         |           Support               |
-------------------------|---------------------------------|---------------------------------
  Office of Disability   |    Associate Commissioner       |
                         |---------------------------------|---------------------------------
     Determinations      |       Deputy Associate          |
   67 Fed. Reg. 69288    |         Commissioner            |
-------------------------|---------------------------------|---------------------------------
  Office of Electronic   |                                 |
       Services          |    Associate Commissioner       |
   66 Fed. Reg. 29618    |                                 |
        (2001)           |                                 |
-------------------------|---------------------------------|---------------------------------
    Office of Public     |    Associate Commissioner       |
      Service and        |---------------------------------|---------------------------------
  Operations Support     |       Deputy Associate          |
   59 Fed. Reg. 56511    |          Commissioner           |
        (1994)           |                                 |
-------------------------|---------------------------------|---------------------------------

 [3203] 
-------------------------|---------------------------------|---------------------------------
                         |                                 |
  Office of Telephone    |    Associate Commissioner       |
                         |---------------------------------|---------------------------------
        Services         |      Deputy Associate           |
   60 Fed. Reg. 22108    |        Commissioner             |
-------------------------|---------------------------------|---------------------------------
                         |   Regional Commissioners (10)   |
                         |---------------------------------|---------------------------------
   Office of Regional    |        Deputy Regional          |
     Commissioners       |       Commissioner (10)         |
                         |---------------------------------|---------------------------------
   60 Fed. Reg. 22108    |      Assistant Regional         |
                         |      Commissioner (15)          |
-------------------------|---------------------------------|---------------------------------
                         |     Deputy Commissioner         |
                         |---------------------------------|---------------------------------
                         |      Assistant Deputy           |
  Office of Retirement   |      Commissioner (2)           |
 and Disability Policy   |---------------------------------|---------------------------------
                         |  Senior Advisor for Program     |
                         |           Outreach              |
-------------------------|---------------------------------|---------------------------------
  Office of Disability   |                                 |
        Programs         |     Associate Commissioner      |
  67 Fed. Reg. 69289     |                                 |
-------------------------|---------------------------------|---------------------------------
  Office of Employment   |                                 |
     Support Programs    |     Associate Commissioner      |
   64 Fed. Reg. 19397    |                                 |
         (1999)          |                                 |
-------------------------|---------------------------------|---------------------------------
    Office of Income     |     Associate Commissioner      |
                         |---------------------------------|---------------------------------
   Security Programs     |        Deputy Associate         |
   67 Fed. Reg. 69288    |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
  Office of Medical and  |     Associate Commissioner      |
  Vocational Expertise   |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Research,   |                                 |
     Evaluation and      |                                 |
       Statistics        |     Associate Commissioner      |
   61 Fed. Reg. 35847    |                                 |
        (1996)           |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Systems     |      Deputy Commissioner        |
                         |---------------------------------|---------------------------------
   60 Fed. Reg. 22116    |        Assistant Deputy         |
                         |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
  Office of Disability   |     Associate Commissioner      |
                         |---------------------------------|---------------------------------
       Systems           |        Deputy Associate         |
   61 Fed. Reg. 35849    |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
       Office of         |                                 |
     Supplemental        |     Associate Commissioner      |
    Security Income      |---------------------------------|---------------------------------
        Systems          |        Deputy Associate         |
   67 Fed. Reg. 37892    |          Commissioner           |
-------------------------|---------------------------------|---------------------------------

 [3204] 
-------------------------|---------------------------------|---------------------------------
   Office of Earnings,   |                                 |
     Enumeration and     |     Associate Commissioner      |
     Administrative      |---------------------------------|---------------------------------
         Systems         |        Deputy Associate         |
   67 Fed. Reg. 37892    |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
  Office of Enterprise   |     Associate Commissioner      |
  Support, Architecture  |---------------------------------|---------------------------------
     and Engineering     |        Deputy Associate         |
  67 Fed. Reg. 37892     |        Commissioner (2)         |
-------------------------|---------------------------------|---------------------------------
  Office of Retirement   |                                 |
     and Survivors       |     Associate Commissioner      |
                         |---------------------------------|---------------------------------
    Insurance Systems    |        Deputy Associate         |
    67 Fed. Reg. 37892   |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
   Office of Systems     |     Associate Commissioner      |
  Electronic Service     |---------------------------------|---------------------------------
  66 Fed. Reg. 10766     |        Deputy Associate         |
         (2001)          |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
                         |       Deputy Commissioner       |     Chief Quality Officer
                         |---------------------------------|---------------------------------
   Office of Quality     |        Assistant Deputy         |   Deputy Chief Quality Office
      Performance        |          Commissioner           |
  63 Fed. Red. 32035     |---------------------------------|---------------------------------
                         |                                 |        Deputy Associate
                         |                                 |          Commissioner
-------------------------|---------------------------------|---------------------------------
 Office of Quality Data  |      Associate Commissioner     |
      Management         |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Quality     |      Associate Commissioner     |
      Improvement        |---------------------------------|---------------------------------
                         |        Deputy Associate         |
                         |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
                         |      Associate Commissioner     |
   Office of Quality     |---------------------------------|---------------------------------
         Review          |        Deputy Associate         |
                         |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
   Office of the Chief   |                                 |
    Strategic Officer    |                                 |     Chief Strategic Officer
   67 Red. Reg. 79950    |                                 |
-------------------------|---------------------------------|---------------------------------
                     National Labor Relations Board (60)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |      Director, Office of        |
                         |   Representation Appeals and    |       Executive Secretary
                         |            Advice               |
  Office of the Board    |---------------------------------|---------------------------------
  29 U. S. C. § 153(a)   |           Solicitor             |   Deputy Executive Secretary
                         |---------------------------------|---------------------------------
                         |     Deputy Chief Counsel to     |
                         |        Board Member (4)         |       Inspector General
                         |---------------------------------|---------------------------------
                         |                                 |     Chief Information Office
-------------------------|---------------------------------|---------------------------------

 [3205] 
-------------------------|---------------------------------|---------------------------------
  Office of the General  |                                 |
        Counsel          |     Deputy General Counsel      |
   29 U. S. C. § 153(d)  |                                 |
-------------------------|---------------------------------|---------------------------------
                         |                                 |    Deputy Associate General
                         |    Associate General Counsel    |            Counsel
                         |---------------------------------|---------------------------------
      (Division of       |                                 |    Deputy Associate General
      Enforcement        |                                 |     Counsel Appellate Court
      Litigation)        |                                 |             Branch
                         |---------------------------------|---------------------------------
                         |                                 |   Director, Office of Appeals
-------------------------|---------------------------------|---------------------------------
                         |                                 |   Associate General Counsel
                         |---------------------------------|---------------------------------
  (Division of Advice)   |                                 |    Deputy Associate General
                         |                                 |             Counsel
-------------------------|---------------------------------|---------------------------------
      (Division of       |                                 |             Director
     Administration)     |---------------------------------|---------------------------------
                         |                                 |         Deputy Director
-------------------------|---------------------------------|---------------------------------
      (Division of       |                                 |    Associate General Counsel
      Operations         |---------------------------------|---------------------------------
      Management)        |                                 |     Deputy Associate General
                         |---------------------------------|---------------------------------
                         |                                 |  Assistant General Counsel (6)
-------------------------|---------------------------------|---------------------------------
   Regional Offices      |                                 |      Regional Director (33)
  29 U. S. C. § 153(b)   |                                 |
-------------------------|---------------------------------|---------------------------------
                         Federal Energy Regulatory Commission (44)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |       Executive Director        |
                         |---------------------------------|---------------------------------
     Office of the       |    Deputy Executive Director    |
   Executive Director    |---------------------------------|---------------------------------
   18 CFR § 1.101(e)     |    Deputy Chief Information     |
         (2009)          |            Officer              |
-------------------------|---------------------------------|---------------------------------
                         |        General Counsel          |
                         |---------------------------------|---------------------------------
                         |     Deputy General Counsel      |
    Office of General    |---------------------------------|---------------------------------
         Counsel         |  Associate General Counsel (3)  |
                         |---------------------------------|---------------------------------
    18 CFR § 1.101(f)    |     Deputy Associate General    |
                         |            Counsel (4)          |
                         |---------------------------------|---------------------------------
                         |            Solicitor            |
-------------------------|---------------------------------|---------------------------------
                         |             Director            |
                         |---------------------------------|---------------------------------
                         |         Deputy Director         |
                         |---------------------------------|---------------------------------
    Office of Energy     |  Director, Tariffs and Market   |
   Market Regulation     |         Development (3)         |
        18 CFR           |---------------------------------|---------------------------------
   § 376.204(b)(2)(ii)   |  Director, Policy Analysis and  |
                         |           Rulemaking            |
                         |---------------------------------|---------------------------------
                         |    Director, Administration,    |
                         |      Case Management, and       |
                         |        Strategic Planning       |
-------------------------|---------------------------------|---------------------------------

 [3206] 
-------------------------|---------------------------------|---------------------------------
                         |           Director              |    Director, Dam Safety and
                         |                                 |          Inspections
                         |---------------------------------|---------------------------------
                         |    Principal Deputy Director    |
                         |---------------------------------|---------------------------------
                         |         Deputy Director         |
    Office of Energy     |---------------------------------|---------------------------------
       Projects          |            Licensing            |
        18 CFR           |---------------------------------|---------------------------------
  § 376.204(b)(2)(iii)   | Director, Pipeline Certificates |
                         |---------------------------------|---------------------------------
                         |    Director, Gas Environment    |
                         |         and Engineering         |
                         |---------------------------------|---------------------------------
                         |      Director, Hydropower       |
                         |       Administration and        |
                         |           Compliance            |
-------------------------|---------------------------------|---------------------------------
                         |                                 |      Chief Accountant and
                         |           Director              |      Director, Division of
                         |                                 |      Financial Regulations
                         |---------------------------------|---------------------------------
                         |        Deputy Director          |        Chief, Regulatory
                         |                                 |         Accounting Branch
  Office of Enforcement  |---------------------------------|---------------------------------
        18 CFR           |    Director, Investigations     |
   § 376.204(b)(2)(vi)   |---------------------------------|---------------------------------
                         |         Deputy Director,        |
                         |          Investigations         |
                         |---------------------------------|---------------------------------
                         |         Director, Audits        |
                         |---------------------------------|---------------------------------
                         |      Director, Energy Market    |
                         |            Oversight            |
-------------------------|---------------------------------|---------------------------------
                         |            Director             |
   Office of Electric    |---------------------------------|---------------------------------
      Reliability        |         Deputy Director         |
        18 CFR           |---------------------------------|---------------------------------
   § 376.204(b)(2)(iv)   |       Director, Compliance      |
                         |---------------------------------|---------------------------------
                         |     Director, Logistics and     |
                         |             Security            |
-------------------------|---------------------------------|---------------------------------
       Office of         |             Director            |                                 
    Administrative       |---------------------------------|---------------------------------
      Litigation         |  Director, Technical Division   |
   64 Fed. Reg. 51226    |---------------------------------|---------------------------------
        (1999)           |     Director, Legal Division    |
                         |---------------------------------|---------------------------------
   68 Fed. Reg. 27056    |                                 |
        (2003)           |  Senior Counsel for Litigation  |
-------------------------|---------------------------------|---------------------------------
                               Federal Trade Commission (31)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
     Office of the       |                                 |
        Chairman         |           Secretary             |
  16 CFR § 0.8 (2010)    |                                 |
-------------------------|---------------------------------|---------------------------------
     Office of the       |       Executive Director        |    Deputy Executive Director
   Executive Director    |---------------------------------|---------------------------------
     16 CFR § 0.01       |     Chief Financial Officer     |    Chief Information Officer
-------------------------|---------------------------------|---------------------------------

 [3207] 
-------------------------|---------------------------------|---------------------------------
                         |     Principal Deputy General    |    Deputy General Counsel for
                         |              Counsel            |          Policy Studies
                         |---------------------------------|---------------------------------
  Office of the General  |   Deputy General Counsel for    |
        Counsel          |            Litigation           |
     16 CFR § 0.11       |---------------------------------|---------------------------------
                         |   Deputy General Counsel for    |
                         |          Legal Counsel          |
-------------------------|---------------------------------|---------------------------------
      Office of          |            Director             |
 International Affairs   |---------------------------------|---------------------------------
     16 CFR § 0.20       |         Deputy Director         |
-------------------------|---------------------------------|---------------------------------
                         |        Associate Director       |
                         |---------------------------------|---------------------------------
      Bureau of          |   Associate Director, Policy    |
     Competition         |---------------------------------|---------------------------------
     16 CFR § 0.16       |   Assistant Director, Mergers   |
                         |              (2)                |
                         |---------------------------------|---------------------------------
                         |        Assistant Director,      |
                         |           Compliance            |
-------------------------|---------------------------------|---------------------------------
                         |                                 |      Associate Director for
                         |            Director             |      International Division
-------------------------|---------------------------------|---------------------------------
                         |       Deputy Director (2)       |
                         |---------------------------------|---------------------------------
                         |  Associate Director for Privacy |
                         |     and Identity Protection     |
                         |---------------------------------|---------------------------------
                         |      Associate Director for     |
                         |       Advertising Practices     |
                         |---------------------------------|---------------------------------
   Bureau of Consumer    |      Associate Director for     |
        Protection       |        Marketing Practices      |
      16 CFR § 0.17      |---------------------------------|---------------------------------
                         |      Associate Director for     |
                         |        Financial Practices      |
                         |---------------------------------|---------------------------------
                         |      Associate Director for     |
                         |       Consumer and Business     |
                         |             Education           |
                         |---------------------------------|---------------------------------
                         |      Associate Director for     |
                         |     Planning and Information    |
                         |---------------------------------|---------------------------------
                         |      Associate Director for     |
                         |             Enforcement         |
-------------------------|---------------------------------|---------------------------------
                         |   Deputy Director for Research  |
                         |       and Development and       |
                         |           Operations            |
  Bureau of Economics    |---------------------------------|---------------------------------
      16 CFR § 0.18      |  Deputy Director for Antitrust  |
                         |---------------------------------|---------------------------------
                         |     Associate Director for      |
                         |     Consumer Protection and     |
                         |             Research            |
-------------------------|---------------------------------|---------------------------------
 Office of the Inspector |                                 |
        General          |                                 |         Inspector General
    16 CFR § 0.13        |                                 |
-------------------------|---------------------------------|---------------------------------

 [3208] 
-------------------------|---------------------------------|---------------------------------
                          Consumer Product Safety Commission (16)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |                                 |   Assistant Executive Director
      Office of the      |     Deputy Executive Director   |        for Compliance and
   Executive Director    |                                 |    Administrative Litigation
    16 CFR § 1000.18     |---------------------------------|---------------------------------
        (2010)           |                                 |   Associate Executive Director
                         |      Chief Financial Officer    |        for Field Operations
                         |---------------------------------|---------------------------------
                         |                                 |         Executive Assistant
-------------------------|---------------------------------|---------------------------------
  Office of Compliance   |                                 |
  and Field Operations   |          Deputy Director        |
   16 CFR § 1000.21      |                                 |
-------------------------|---------------------------------|---------------------------------
                         |                                 |   Assistant Executive Director
                         |---------------------------------|---------------------------------
                         |                                 |    Deputy Assistant Executive
    Office of Hazard     |                                 |              Director
  Identification and     |---------------------------------|---------------------------------
       Reduction         |                                 |   Associate Executive Director
   16 CFR § 1000.25      |                                 |       for Economic Analysis
                         |---------------------------------|---------------------------------
                         |                                 |   Associate Executive Director
                         |                                 |     for Engineering Sciences
                         |---------------------------------|---------------------------------
                         |                                 |   Associate Executive Director
                         |                                 |         for Epidemiology
-------------------------|---------------------------------|---------------------------------
 Directorate for Health  |                                 |
       Sciences          |   Associate Executive Director  |
    16 CFR § 1000.27     |                                 |
-------------------------|---------------------------------|---------------------------------
     Directorate for     |                                 |
  Laboratory Sciences    |   Associate Executive Director  |
  16 CFR § 1000.30       |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of International |                                 |
      Programs and       |                                 |
   Intergovernmental     |                                 |            Director
        Affairs          |                                 |
   16 CFR § 1000.24      |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of Information   |                                 |
     and Technology      |                                 |   Assistant Executive Director
        Services         |                                 |
   16 CFR § 000.23       |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of the General   |                                 |
        Counsel          |         General Counsel         |
   16 CFR § 1000.14      |                                 |
-------------------------|---------------------------------|---------------------------------
                          Federal Labor Relations Authority (14)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |                                 |    Director, Human Resources,
     Office of the       |                                 |      Policy and Performance
       Chairman          |                                 |             Management
   5 CFR § 2411.10(a)    |---------------------------------|---------------------------------
        (2010)           |                                 |           Chief Counsel
                         |---------------------------------|---------------------------------
                         |                                 |          Senior Advisor
-------------------------|---------------------------------|---------------------------------

 [3209] 
-------------------------|---------------------------------|---------------------------------
 Office of the Solicitor |                                 |            Solicitor
   5 CFR § 2417.203(a)   |                                 |
-------------------------|---------------------------------|---------------------------------
   Offices of Members    |                                 |
  5 U. S. C. § 7104(b)   |                                 |         Chief Counsel (2)
-------------------------|---------------------------------|---------------------------------
     Office of the       |                                 |
   Executive Director    |                                 |        Executive Director
  5 U. S. C. § 7105(d)   |                                 |
     5 CFR § 2421.7      |                                 |
-------------------------|---------------------------------|---------------------------------
    Federal Services     |                                 |
     Impasses Panel      |                                 |        Executive Director
  5 U. S. C. § 7119(c)   |                                 |
-------------------------|---------------------------------|---------------------------------
  Office of the General  |                                 |
        Counsel          |                                 |      Deputy General Counsel
  5 U. S. C. § 7104(f)   |                                 |
-------------------------|---------------------------------|---------------------------------
    Regional Offices     |                                 |
  5 U. S. C. § 7105(d)   |                                 |      Regional Director (5)
    5 CFR § 2421.6       |                                 |
-------------------------|---------------------------------|---------------------------------
                         National Transportation Safety Board (14)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
     Office of the       |                                 |        Managing Director
   Managing Director     |---------------------------------|---------------------------------
    49 CFR § 800.2(c)    |                                 |   Associate Managing Director
         (2009)          |                                 |      for Quality Assurance
-------------------------|---------------------------------|---------------------------------
  Office of the General  |                                 |
        Counsel          |         General Counsel         |
   49 CFR § 800.2(c)     |                                 |
-------------------------|---------------------------------|---------------------------------
       Office of         |                                 |             Director
     Administration      |---------------------------------|---------------------------------
   60 Fed. Reg. 61488    |                                 |   Director, Bureau of Accident
                         |                                 |          Investigation
-------------------------|---------------------------------|---------------------------------
   Office of Aviation    |                                 |   Deputy Director, Technology
        Safety           |                                 |    and Investment Operations
  49 CFR § 800.2(e)      |---------------------------------|---------------------------------
                         |                                 |    Deputy Director, Regional
                         |                                 |            Operations
-------------------------|---------------------------------|---------------------------------
   Office of Research    |                                 |             Director
    and Engineering      |---------------------------------|---------------------------------
   49 CFR § 800.2(j)     |                                 |         Deputy Director
-------------------------|---------------------------------|---------------------------------
    Office of Chief      |                                 |
   Financial Officer     |                                 |      Chief Financial Officer
 49 U. S. C. § 1111(h)   |                                 |
    49 CFR § 800.28      |                                 |
-------------------------|---------------------------------|---------------------------------
    Office of Safety     |                                 |
    Recommendations      |                                 |             Director
  and Accomplishments    |                                 |
  49 CFR § 800.2(k)      |                                 |
-------------------------|---------------------------------|---------------------------------

 [3210] 
-------------------------|---------------------------------|---------------------------------
   Office of Railroad,   |                                 |
      Pipeline and       |                                 |
   Hazardous Materials   |                                 |            Director
     Investigations      |                                 |
49 CFR §§ 800.2(f), (i)  |                                 |
-------------------------|---------------------------------|---------------------------------
        National         |                                 |            Director
  Transportation Safety  |---------------------------------|---------------------------------
     Board Academy       |                                 |     President and Academic
   49 U. S. C. § 1117    |                                 |              Dean
-------------------------|---------------------------------|---------------------------------
            Performance-Based Organization for the Delivery of Federal Student
                                  Financial Assistance (13)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |     Deputy Chief Operating      |      Director, Student Aid
                         |            Officer              |            Awareness
-------------------------|---------------------------------|---------------------------------
                         |     Chief Financial Officer     |
                         |---------------------------------|---------------------------------
                         |    Chief Compliance Officer     |
                         |---------------------------------|---------------------------------
                         |   Director, Policy Liaison and  |
                         |       Implementation Staff      |
                         |---------------------------------|---------------------------------
                         |          Audit Officer          |
                         |---------------------------------|---------------------------------
   Office of the Chief   |       Director, Financial       |
    Operating Officer    |         Management Group        |
       20 U. S. C.       |---------------------------------|---------------------------------
     §§ 1018(d)-(e)      |      Director, Budget Group     |
                         |---------------------------------|---------------------------------
                         |    Deputy Chief Information     |
                         |            Officer              |
                         |---------------------------------|---------------------------------
                         |     Director, Application       |
                         |       Development Group         |
                         |---------------------------------|---------------------------------
                         |    Internal Review Officer      |
                         |---------------------------------|---------------------------------
                         |   Director, Strategic Planning  |
                         |      and Reporting Group        |
                         |---------------------------------|---------------------------------
                         |         Senior Adviser          |
-------------------------|---------------------------------|---------------------------------
                            Merit Systems Protection Board (11)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
 Office of the Clerk of  |                                 |
       the Board         |                                 |        Clerk of the Board
 5 CFR § 1200.10(a)(4)   |                                 |
        (2010)           |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Financial   |                                 |
   and Administrative    |                                 |             Director
      Management         |                                 |
 5 CFR § 1200.10(a)(8)   |                                 |
-------------------------|---------------------------------|---------------------------------
  Office of Policy and   |                                 |
      Evaluation         |                                 |             Director
 5 CFR § 1200.10(a)(6)   |                                 |
-------------------------|---------------------------------|---------------------------------

 [3211] 
-------------------------|---------------------------------|---------------------------------
  Office of Information  |                                 |
       Resources         |                                 |             Director
      Management         |                                 |
  5 CFR § 1200.10(a)(9)  |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Regional    |                                 |             Director
       Operations        |---------------------------------|---------------------------------
  5 CFR § 1200.10(a)(1)  |                                 |      Regional Director (6)
-------------------------|---------------------------------|---------------------------------
                               Office of Special Counsel (8)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |                                 |  Associate Special Counsel for
                         |     Deputy Special Counsel      |        Investigation and
                         |                                 |         Prosecution (3)
                         |---------------------------------|---------------------------------
                         |                                 |     Senior Associate Special
                         |                                 |    Counsel for Investigation
    Office of Special    |                                 |          and Prosecution
      Counsel            |---------------------------------|---------------------------------
   5 U. S. C. § 1211     |                                 |    Associate Special Counsel,
                         |                                 |      Planning and Oversight
                         |---------------------------------|---------------------------------
                         |                                 |  Associate Special Counsel for
                         |                                 |     Legal Counsel and Policy.
                         |---------------------------------|---------------------------------
                         |                                 |    Director of Management and
                         |                                 |              Budget
-------------------------|---------------------------------|---------------------------------
                           Postal Regulatory Commission (10)*
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
  Office of the General  |         General Counsel         |
        Counsel          |---------------------------------|---------------------------------
    39 CFR § 3002.13     |    Assistant General Counsel    |
        (2009)           |                                 |
-------------------------|---------------------------------|---------------------------------
                         |            Director             |
                         |---------------------------------|---------------------------------
        Office of        |   Assistant Director, Analysis  |
   Accountability and    |      and Pricing Division       |
       Compliance        |---------------------------------|---------------------------------
                         |   Assistant Director, Auditing  |
                         |      and Costing Division       |
-------------------------|---------------------------------|---------------------------------
    Office of Public     |                                 |
      Affairs and        |                                 |
     Governmental        |            Director             |
       Relations         |                                 |
    39 CFR § 3002.15     |                                 |
----------------------------------------------------------------------------------------------

Editor's Note: The preceding image contains the reference for footnote^[16].

 [3212] 
----------------------------------------------------------------------------------------------
                          |      Secretary and Director     |
  Office of the Secretary |---------------------------------|---------------------------------
    and Administration    |    Assistant Director, Human    |
     48 Fed. Reg. 13167   |   Resources and Infrastructure  |
          (1983)          |---------------------------------|---------------------------------
                          |  Assistant Director, Strategic  |
                          |          Planning, etc.         |
--------------------------|---------------------------------|---------------------------------
  Office of the Inspector |                                 |
        General           |        Inspector General        |
    39 CFR § 3002.16      |                                 |
--------------------------|---------------------------------|---------------------------------
                               Federal Maritime Commission (8)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
       Office of the      |                                 |
     Managing Director    |                                 |
     46 CFR § 501.3(h)    |             Director            |
          (2010)          |                                 |
    75 Fed. Reg. 29452    |                                 |
--------------------------|---------------------------------|---------------------------------
 Office of the Secretary  |                                 |
     46 CFR § 501.3(c)    |                                 |            Secretary
--------------------------|---------------------------------|---------------------------------
  Office of the General   |                                 |   Deputy General Counsel for
        Counsel           |                                 |     Reports, Opinions and
    46 CFR § 501.3(d)     |                                 |            Decisions
--------------------------|---------------------------------|---------------------------------
        Bureau of         |                                 |
    Certification and     |                                 |
        Licensing         |                                 |            Director
   46 CFR § 501.3(h)(5)   |                                 |
--------------------------|---------------------------------|---------------------------------
     Bureau of Trade      |                                 |
         Analysis         |                                 |            Director
   46 CFR § 501.3(h)(6)   |                                 |
--------------------------|---------------------------------|---------------------------------
         Bureau of        |                                 |            Director
        Enforcement       |---------------------------------|---------------------------------
   46 CFR § 501.3(h)(7)   |                                 |         Deputy Director
--------------------------|---------------------------------|---------------------------------
         Office of        |                                 |
      Administration      |                                 |
    70 Fed. Reg. 7660     |                                 |            Director
          (2005)          |                                 |
--------------------------|---------------------------------|---------------------------------
                              Surface Transportation Board (4)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
  Office of the Chairman  |  Director of Public Assistance, |
     49 CFR § 1011.3      |    Governmental Affairs and     |
          (2009)          |            Compliance           |
--------------------------|---------------------------------|---------------------------------
   Office of the General  |         General Counsel         |
         Counsel          |---------------------------------|---------------------------------
   49 CFR § 1011.6(c)(3)  |      Deputy General Counsel     |
--------------------------|---------------------------------|---------------------------------
   Office of Proceedings  |             Director            |
     49 CFR § 1011.6(h)   |                                 |
--------------------------|---------------------------------|---------------------------------

 [3213] 
--------------------------|---------------------------------|---------------------------------
                     Federal Mine Safety and Health Review Commission (1)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position        
--------------------------|---------------------------------|---------------------------------
   Office of the General  |                                 |
      Counsel 29 CFR      |                                 |
     § 2706.170(c)        |         General Counsel         |
        (2009)            |                                 |
--------------------------|---------------------------------|---------------------------------
                     Chemical Safety and Hazard Investigation Board (1)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
   Office of the General  |                                 |
         Counsel          |                                 |
  40 CFR § 1600.2 (b)(3)  |         General Counsel         |
         (2009)           |                                 |
--------------------------|---------------------------------|---------------------------------
                                National Mediation Board (1)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
   Office of the General  |                                 |
         Counsel          |                                 |
    29 CFR § 1209.06(e)   |         General Counsel         |
          (2009)          |                                 |
--------------------------|---------------------------------|---------------------------------
                               Commission on Civil Rights (1)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
    Office of the Staff   |                                 |
        Director          |      Associate Deputy Staff     |
      42 U. S. C.         |            Director             |
     § 1975b(a)(2)(A)     |                                 |
--------------------------|---------------------------------|---------------------------------
                                Board of Veterans Appeals (1)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
    Office of the Vice    |                                 |
        Chairman          |                                 |          Vice Chairman
  38 U. S. C. § 7101(a)   |                                 |
----------------------------------------------------------------------------------------------

C

According to data provided by the Office of Personnel Management, reprinted below, there are 1,584 administrative law judges (ALJs) in the Federal Government. Each of these ALJs is an inferior officer and each is subject, by statute, to two layers of for-cause removal. See supra, at ___. The table below lists the 28 federal agencies that rely on ALJs to adjudicate individual administrative cases. The source is available in the Clerk of Court's case file. See ibid.

 [3214] 
-----------------------------------------------------------------
                   AGENCY                       |  TOTAL NUMBER
                                                |     OF ALJs
------------------------------------------------|----------------
     Commodity Futures Trading Commission       |        2
------------------------------------------------|----------------
            Department of Agriculture           |        4
------------------------------------------------|----------------
            Department of Education             |        1
------------------------------------------------|----------------
     Department of Health and Human Services    |
          (Departmental Appeals Board)          |        7
------------------------------------------------|----------------
    Department of Health and Human Services     |
         (Food and Drug Administration)         |        1
------------------------------------------------|----------------
    Department of Health and Human Services     |
   (Office of Medicare Hearings and Appeals)    |       65
------------------------------------------------|----------------
        Department of Homeland Security         |
          (United States Coast Guard)           |        6
------------------------------------------------|----------------
           Department of Housing and            |        2
               Urban Development                |
------------------------------------------------|----------------
          Department of the Interior            |        9
------------------------------------------------|----------------
              Department of Justice             |
        (Drug Enforcement Administration)       |        3
------------------------------------------------|----------------
              Department of Justice             |        1
   (Executive Office for Immigration Review)    |
------------------------------------------------|----------------
                Department of Labor             |       44
            (Office of the Secretary)           |
------------------------------------------------|----------------
          Department of Transportation          |        3
------------------------------------------------|----------------
        Environmental Protection Agency         |        4
------------------------------------------------|----------------
       Federal Communications Commission        |        1
------------------------------------------------|----------------

------------------------------------------------|----------------
                   AGENCY                       |  TOTAL NUMBER
                                                |     OF ALJs
------------------------------------------------|----------------
     Federal Energy Regulatory Commission       |       14
------------------------------------------------|----------------
      Federal Labor Relations Authority         |        3
------------------------------------------------|----------------
          Federal Maritime Commission           |        1
------------------------------------------------|----------------
           Federal Mine Safety and              |
           Health Review Commission             |       11
------------------------------------------------|----------------
           Federal Trade Commission             |        1
------------------------------------------------|----------------
        International Trade Commission          |        6
------------------------------------------------|----------------
        National Labor Relations Board          |       39
------------------------------------------------|----------------
     National Transportation Safety Board       |        4
------------------------------------------------|----------------
        Occupational Safety and Health          |
            Review Commission                   |       12
------------------------------------------------|----------------
  Office of Financial Institution Adjudication  |        1
------------------------------------------------|----------------
       Securities and Exchange Commission       |        4
------------------------------------------------|----------------
         Social Security Administration         |      1,334
------------------------------------------------|----------------
          United States Postal Service          |        1
------------------------------------------------|----------------
                 TOTAL                          |      1,584
-----------------------------------------------------------------

[3215] D

The table below lists 29 departments and other agencies the heads of which are not subject to any statutory for-cause removal provision, but that do bear certain other indicia of independence.

The table identifies six criteria that may suggest independence: (1) whether the agency consists of a multi-member commission; (2) whether its members are required, by statute, to be bipartisan (or nonpartisan); (3) whether eligibility to serve as the agency's head depends on statutorily defined qualifications; (4) whether the agency has independence in submitting budgetary and other proposals to Congress (thereby bypassing the Office of Management and Budget); (5) whether the agency has authority to appear in court independent of the Department of Justice, cf. 28 U. S. C. §§ 516-519; and (6) whether the agency is explicitly classified as "independent" by statute. See generally Breger § Edles 1135-1155; supra, at 35-36. Unless otherwise noted, all information refers to the relevant agency's organic statute, which is cited in the first column. The list of agencies is nonexhaustive.

------------------------------------------------------------------------------|------------|------------------------------
                             |                |               |   Statutory   |            |               |
           Department        |  Multi-Member  |  Bipartisan   |  Eligibility  |     OMB    |  Litigation   |   Explicit
           or Agency         |                |               |    Criteria   |   Bypass   |   Authority   |   Statement
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        Securities and       |                |               |               |    Yes     |               |
           Exchange          |      Yes       |     Yes       |               |    12      |      Yes      |
          Commission         |                |               |               |  U. S. C.  |  15 U. S. C.  |
       15 U. S. C. § 78d     |                |               |               |    § 250   |     § 78u     |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
         Architectural       |                |               |               |            |               |
      and Transportation     |                |               |     Yes       |            |               |
            Barriers         |      Yes       |               |   (related    |            |      Yes      |
           Compliance        |                |               |  experience)  |            |               |
             Board           |                |               |               |            |               |
      29 U. S. C. § 792      |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        Arctic Research      |                |               |     Yes       |            |               |
           Commission        |      Yes       |               |   (related    |            |               |
           15 U. S. C.       |                |               |  knowledge,   |            |               |
             § 4102          |                |               |  experience)  |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------

 [3216] 
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
         Broadcasting        |                |               |      Yes      |            |               |
           Board of          |                |               | (citizenship; |            |               |
          Governors          |      Yes       |     Yes       |   related     |            |               |     Yes
         22 U. S. C.         |                |               |   knowledge)  |            |               |
           § 6203            |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
            Central          |                |               |               |            |               |     Cf.
         Intelligence        |                |               |               |            |               |   Freytag
            Agency           |                |               |               |            |               |  501 U. S.,
          50 U. S. C.        |                |               |               |            |               | at 887, n. 4
            § 403-4          |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        Commission of        |                |               |      Yes      |            |               |
          Fine Arts          |      Yes       |               |   (related    |            |               |
         40 U. S. C.         |                |               |  knowledge)   |            |               |
           § 9101            |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
           Commodity         |                |               |               |            |               |
        Futures Trading      |                |               |      Yes      |            |               |
          Commission         |      Yes       |     Yes       |   (related    |            |     Yes       |     Yes
          7 U. S. C.         |                |               |  knowledge)   |            |   § 2(a)(4)   |
          § 2(a)(2)          |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
       Defense Nuclear       |                |               |      Yes      |            |               |
      Facilities Safety      |                |               | (citizenship; |            |               |
             Board           |      Yes       |     Yes       |     expert    |            |               |     Yes
          42 U. S. C.        |                |               |   knowledge)  |            |               |
            § 2286           |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
       Equal Employment      |                |               |               |            |               |
          Opportunity        |                |               |               |            |     Yes       |
           Commission        |      Yes       |     Yes       |               |            |  § 2000e-5(f) |
          42 U. S. C.        |                |               |               |            |               |
           § 2000e-4         |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
         Export-Import       |                |               |               |            |               |
          Bank of the        |                |               |               |            |     Yes       |     Yes
        United States*       |      Yes       |     Yes       |               |            |  § 635(a)(1)  |
          12 U. S. C.        |                |               |               |            |               |
            § 635a           |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
          Farm Credit        |                |               |               |            |               |
         Administration      |      Yes       |     Yes       |      Yes      |            |     Yes       |     Yes
           12 U. S. C.       |                |               | (citizenship) |            |   § 2244(c)   |
         §§ 2241, 2242       |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
            Federal          |                |               |               |            |               |
        Communications       |                |               |      Yes      |            |     Yes       |
          Commission         |     Yes        |     Yes       | (citizenship) |            |   § 401(b)    |
          47 S. U. C.        |                |               |               |            |               |
        §§ 151, 154          |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        Federal Deposit      |                |               |      Yes      |            |               |
           Insurance         |                |               | (citizenship; |    Yes     |     Yes       |
          Corporation        |     Yes        |     Yes       |    related    |   § 250    |   § 1819(a)   |
          12 S. U. C.        |                |               |  experience)  |            |               |
        §§ 1811, 1812        |                |               |               |            |               |
------------------------------------------------------------------------------|------------|------------------------------

Editor's Note: The preceding image contains the reference for footnote^[17].

 [3217] 
--------------------------------------------------------------------------------------------------------------------------
      Federal Election       |                |               |      Yes      |    Yes     |     Yes       |
          Commission         |     Yes        |     Yes       |   (general)   | § 437d(d)  |    § 437d     |
      2 U. S. C. § 437c      |                |               |               |            |    (a)(6)     |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
       Federal Housing       |                |               |               |            |               |
        Finance Agency       |                |               |               |    Yes     |               |      Yes
        12 U. S. C. A.       |                |               |               |   § 250    |               |
        § 4511 (Supp.        |                |               |               |            |               |
           2010)             |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
            Federal          |                |               |               |            |               |
          Retirement         |                |      Cf.      |      Yes      |            |               |
       Thrift Investment     |     Yes        |   § 8472(b)   |   (related    |            |               |
            Board            |                |      (2)      |   knowledge)  |            |               |
       5 U. S. C. § 8472     |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        International        |                |               |      Yes      |            |               |
            Trade            |                |               | (citizenship; |     Yes    |      Yes      |      Yes
         Commission          |     Yes        |     Yes       |     expert    |   § 2232   |   § 1333(g)   |
         19 U. S. C.         |                |               |  knowledge)   |            |               |
           § 1330            |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        Marine Mammal        |                |               |               |            |               |
          Commission         |                |               |      Yes      |            |               |
          16 U. S. C.        |     Yes        |               |    (related   |            |               |
           § 1401            |                |               |   knowledge)  |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
         Millennium          |                |               |               |            |               |
         Challenge           |                |     Cf.       |      Yes      |            |               |
        Corporation †        |     Yes        |   § 7703(c)   |   (related    |            |               |
          22 U. S. C.        |                |    (3)(B)     |  experience)  |            |               |
            § 7703           |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
           National          |                |               |               |            |               |
         Credit Union        |                |               |      Yes      |            |               |
        Administration       |     Yes        |     Yes       |   (related    |     Yes    |               |      Yes
          12 U. S. C.        |                |               |  experience)  |   § 250    |               |
           § 1752a           |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
            National         |                |               |               |            |               |
         Archives and        |                |     Yes       |      Yes      |            |               |
            Records          |                |               |   (related    |            |               |      Yes
        Administration       |                |               |   knowledge)  |            |               |
          44 U. S. C.        |                |               |               |            |               |
        §§ 2102, 2103        |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
            National         |                |               |      Yes      |            |               |
           Council on        |     Yes        |               |   (related    |            |               |
           Disability        |                |               |  experience)  |            |               |
       29 U. S. C. § 780     |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
  National Labor-Management  |                |               |      Yes      |            |               |
            Panel            |     Yes        |               |   (related    |            |               |
       29 U. S. C. § 175     |                |               |   knowledge)  |            |               |
--------------------------------------------------------------------------------------------------------------------------

Editor's Note: The preceding image contains the reference for footnote^[18].

 [3218] 
--------------------------------------------------------------------------------------------------------------------------
       National Science      |                |               |               |            |               |
           Foundation        |                |               |      Yes      |            |               |
           42 U. S. C.       |     Yes        |               |   (related    |            |               |      Yes
       §§ 1861, 1863,        |                |               |   expertise)  |            |               |
             1864            |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
          Peace Corps        |                |               |               |            |               |
           22 U. S. C.       |                |               |               |            |               |      Yes
            § 2501-1         |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
       Pension Benefit       |                |               |               |            |               |
           Guaranty          |                |               |               |            |               |
        Corporation †        |     Yes        |               |               |            |      Yes      |
          29 U. S. C.        |                |               |               |            |               |
            § 1302           |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
          Railroad           |                |               |               |            |               |
         Retirement          |                |               |               |            |               |
           Board             |     Yes        |               |               |            |      Yes      |      Yes
      45 U. S. C. § 231f     |                |               |               |            |               |
--------------------------------------------------------------------------------------------------------------------------

Editor's Note: The preceding image contains the reference for footnote^[19].

[1] The current salary for the Chairman is $673,000. Other Board members receive $547,000. Brief for Petitioners 3.

[2] The Government asserts that "petitioners have not pointed to any case in which this Court has recognized an implied private right of action directly under the Constitution to challenge governmental action under the Appointments Clause or separation-of-powers principles." Brief for United States 22. The Government does not appear to dispute such a right to relief as a general matter, without regard to the particular constitutional provisions at issue here. See, e.g., Correctional Services Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (equitable relief "has long been recognized as the proper means for preventing entities from acting unconstitutionally"); Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ("[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution"); see also Ex parte Young, 209 U.S. 123, 149, 165, 167, 28 S.Ct. 441, 52 L.Ed. 714 (1908). If the Government's point is that an Appointments Clause or separation-of-powers claim should be treated differently than every other constitutional claim, it offers no reason and cites no authority why that might be so.

[3] When Perkins was decided in 1886, the Secretary of the Navy was a principal officer and the head of a department, see Rev. Stat. § 415, and the Tenure of Office Act purported to require Senate consent for his removal. Ch. 154, 14 Stat. 430, Rev. Stat. § 1767. This requirement was widely regarded as unconstitutional and void (as it is universally regarded today), and it was repealed the next year. See Act of Mar. 3, 1887, ch. 353, 24 Stat. 500; Myers v. United States, 272 U.S. 52, 167-168, 47 S.Ct. 21, 71 L.Ed. 160 (1926); see also Bowsher v. Synar, 478 U.S. 714, 726, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Perkins cannot be read to endorse any such restriction, much less in combination with further restrictions on the removal of inferiors. The Court of Claims opinion adopted verbatim by this Court addressed only the authority of the Secretary of the Navy to remove inferior officers.

[4] Contrary to the dissent's suggestion, post, at 12-14 (opinion of BREYER, J.), the second layer of tenure protection does compromise the President's ability to remove a Board member the Commission wants to retain. Without a second layer of protection, the Commission has no excuse for retaining an officer who is not faithfully executing the law. With the second layer in place, the Commission can shield its decision from Presidential review by finding that good cause is absent— a finding that, given the Commission's own protected tenure, the President cannot easily overturn. The dissent describes this conflict merely as one of four possible "scenarios," see post, at 3170-3172, but it is the central issue in this case: The second layer matters precisely when the President finds it necessary to have a subordinate officer removed, and a statute prevents him from doing so.

[5] The dissent quotes Buckley v. Valeo, 424 U.S. 1, 138, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), for the proposition that Congress has "broad authority to `create' governmental `"offices"' and to structure those offices `as it chooses.'" Post, at 3165. The Buckley Court put "`offices'" in quotes because it was actually describing legislative positions that are not really offices at all (at least not under Article II). That is why the very next sentence of Buckley said, "But Congress' power ... is inevitably bounded by the express language" of the Constitution. 424 U.S., at 138-139, 96 S.Ct. 612 (emphasis added).

[6] The dissent attributes to Madison a belief that some executive officers, such as the Comptroller, could be made independent of the President. See post, at 3173-3174. But Madison's actual proposal, consistent with his view of the Constitution, was that the Comptroller hold office for a term of "years, unless sooner removed by the President"; he would thus be "dependent upon the President, because he can be removed by him," and also "dependent upon the Senate, because they must consent to his [reappointment] for every term of years." 1 Annals of Cong. 612 (1789).

[7] The Government implausibly argues that § 7217(d)(3) "does not expressly make its three specified grounds of removal exclusive," and that "the Act could be construed to permit other grounds." Brief for United States 51, n. 19. But having provided in § 7211(e)(6) that Board members are to be removed "in accordance with [§ 7217(d)(3)], for good cause shown," Congress would not have specified the necessary Commission finding in § 7217(d)(3)—including formal procedures and detailed conditions—if Board members could also be removed without any finding at all. Cf. PCAOB Brief 6 ("Cause exists where" the § 7217(d)(3) conditions are met).

[8] Contrary to the dissent's assertions, see post, at ___ _ ___, the Commission's powers to conduct its own investigations (with its own resources), to remove particular provisions of law from the Board's bailiwick, or to require the Board to perform functions "other" than inspections and investigations, § 7211(c)(5), are no more useful in directing individual enforcement actions.

[9] One "may be an agent or employee working for the government and paid by it, as nine-tenths of the persons rendering service to the government undoubtedly are, without thereby becoming its office[r]." United States v. Germaine, 99 U.S. 508, 509 (1879). The applicable proportion has of course increased dramatically since 1879.

[10] For similar reasons, our holding also does not address that subset of independent agency employees who serve as administrative law judges. See, e.g., 5 U.S.C. §§ 556(c), 3105. Whether administrative law judges are necessarily "Officers of the United States" is disputed. See, e.g., Landry v. FDIC, 204 F.3d 1125 (C.A.D.C.2000). And unlike members of the Board, many administrative law judges of course perform adjudicative rather than enforcement or policymaking functions, see §§ 554(d), 3105, or possess purely recommendatory powers. The Government below refused to identify either "civil service tenure-protected employees in independent agencies" or administrative law judges as "precedent for the PCAOB." 537 F.3d 667, 699, n. 8 (C.A.D.C.2008) (Kavanaugh, J., dissenting); see Tr. of Oral Arg. in No. 07-5127 (CADC), pp. 32, 37-38, 42.

[11] We express no view on whether the Commission is thus an "executive Departmen[t]" under the Opinions Clause, Art. II, § 2, cl. 1, or under Section 4 of the Twenty-Fifth Amendment. See Freytag v. Commissioner, 501 U.S. 868, 886-887, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991).

[12] The Board argued below that petitioners lack standing to raise this claim, because no member of the Board has been appointed over the Chairman's objection, and so petitioners' injuries are not fairly traceable to an invalid appointment. See Defendants' Memorandum of Points and Authorities in Support of Motion to Dismiss the Complaint in Civil Action No. 1:06-cv-00217-JR (DC), Doc. 17, pp. 42-43; Brief for Appellees PCAOB et al. in No. 07-5127 (CADC), pp. 32-33. We cannot assume, however, that the Chairman would have made the same appointments acting alone; and petitioners' standing does not require precise proof of what the Board's policies might have been in that counterfactual world. See Glidden Co. v. Zdanok, 370 U.S. 530, 533, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962) (plurality opinion).

[13] Petitioners contend that finding the Commission to be the head will invalidate numerous appointments made directly by the Chairman, such as those of the "heads of major [SEC] administrative units." Reorg. Plan No. 10, § 1(b)(2), at 1266. Assuming, however, that these individuals are officers of the United States, their appointment is still made "subject to the approval of the Commission." Ibid. We have previously found that the department head's approval satisfies the Appointments Clause, in precedents that petitioners do not ask us to revisit. See, e.g., United States v. Smith, 124 U.S. 525, 532, 8 S.Ct. 595, 31 L.Ed. 534 (1888); Germaine, 99 U.S., at 511; United States v. Hartwell, 6 Wall. 385, 393-394, 18 L.Ed. 830 (1868).

[14] See Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995).

[15] See Lebron, supra.

[16] The officers in this agency are part of the "excepted service," but enjoy tenure protection similar to that enjoyed by career SES appointees. See 5 U. S. C. § 2302(a)(2)(B); Plum Book, p. v (distinguishing "excepted service" from "Schedule C"); id., at 202 (describing schedule C |positions).

[17] See Lebron, 513 U.S. 374.

[18] See Lebron, supra

[19] See Lebron, supra.