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.
January 17, 2009 at 7:51 pm
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Responses (7)
C Smith - January 17, 2009 at 8:52 pm
Sounds like one of those “contextual arguments”. You probably had to be there.
Seems like it’s trying to limit usupers.
Bruce Boyden - January 17, 2009 at 10:54 pm
Is that phrase used in any other statutes? Legislators love to copy.
Jon Weinberg - January 17, 2009 at 11:17 pm
A wide variety of statutes explicitly authorize the President to delegate to some other officer authority granted to him by the statutes in question; in those circumstances, the President would *not* need to sign off on that other officer’s decision. If a statute is silent about delegation, whether the President can delegate authority granted by that statute (say, by executive order) is a matter of legislative intent. The language you quote was designed to make the legislative intent clear.
Brian Kalt - January 18, 2009 at 7:47 am
Bruce, the phrase does not appear in any other statute.
Jon, I think you’re right. It appears to be an effort to negate 3 U.S.C. § 301, which gives presidents the power to completely delegate any of their statutory authority. Other statutes (see, e.g., 22 U.S.C. § 7431) restrict the president and just use different phrasing.
Thanks, Jon.
Jon Weinberg - January 18, 2009 at 8:49 am
As to your first question, Brian, consider Knauff v. Shaughnessy, 338 US 537 (1950). I mention this case because I teach it (though this aspect isn’t why). Congress authorizes the President to make rules under which it will be illegal for “any alien to . . . enter . . . the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe.” The President issues an order delegating his rulemaking authority to the Secretary of State, who in turn promulgates rules giving certain authority to exclude to the Attorney General. The AG excludes Knauff. Knauff protests, among other things, that the statute unconstitutionally delegated power to the President, and Congress rejects that, noting in passing that the President could delegate his own authority to lower federal officers. But nobody takes seriously the argument that the President had to personally sign the order excluding Knauff or the regulations pursuant to which he was excluded.
Jon Weinberg - January 18, 2009 at 9:02 am
Oops — a victim of retro-editing. My last comment was an answer to a question posed in a *previous* version of yours . . .
Brian Kalt - January 18, 2009 at 9:05 am
Sorry about that. I should have just updated instead of overwriting.
To those keeping score at home, my question that Jon was answering was whether there are any examples of silent statutes being interpreted as implicitly allowing for delegation. Given the existence of 3 U.S.C. § 301, I’m guessing there are plenty of others too.
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