What does “the President (and only the President)” mean?
posted by Brian Kalt
I recognize that this post might put me dangerously close to the “pointless incessant barking” category, but I have been puzzling over it for a long time and can think of no better place to solicit some thoughts.
I have found a curiosity in 5 U.S.C. § 3345, the federal statute for appointing acting officers, such as heads of agencies. The statute provides as a default that the first assistant to the old officer automatically takes over in an acting capacity. However, the president can choose certain other people to fill in instead.
The weird part is that the statute specifies that “the President (and only the President)” may do this. For the life of me, I cannot figure out what adding “and only the president” adds, as a legal matter. I have come up with two possible explanations, but both of them seem stupid.
The first possibility is that the drafters of the statute meant to distinguish presidents from acting presidents, and allow only the former to handpick acting officers when vacancies arise. But an acting president is supposed to have all of the powers and duties of an “actual” president (with the possible exception of appointing a vice president under the Twenty-Fifth Amendment). Besides that, if Congress meant to enact such a distinction in this statute, this is far from the most obvious way to phrase it.
The second possibility is that the drafters meant to make this presidential power undelegable. So, for instance, if there was a vacancy in the office of the Deputy Attorney General, the president could handpick an acting DAG, but he could not just let the Attorney General do it himself. But it is hard to see how adding “(and only the President)” accomplishes any of that. Without the parenthetical phrase, the president still could not delegate the power to handpick acting officers–or more precisely, if he let a delegee choose the acting officer, the president would still have to formalize the pick by signing off on it himself. Adding the parenthetical doesn’t change the president’s ability to delegate (de facto) or his need to sign off himself (de jure).
I have not found any other possible explanations, nor have I found any hint in the structure of the statute itself, nor have I found any legislative history that casts light on this. Concurring Opinions readers are pretty smart. Any ideas, folks?
UPDATE: Well, someone was being stupid here, but it wasn’t Congress (hint: it was someone with the initials BK). As you can read in the comments, Congress has given the president a general ability to delegate his statutory authority, and this statute is just hemming that in. Other statutes do this too, and just use different language. Thanks to Jon Weinberg for clearing this up.