the federal Government and direct a single Cabinet member to lead and coordinate the efforts of all
Cabinet agencies to implement that policy.
March 20, 2002
LETTER OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT
You have asked us to provide our views concerning what actions the President can take
unilaterally and without congressional consent towards centralizing border control policy for the
United States Government under the supervision of the Attorney General of the United States.
Under current law,
*
the federal Governments control over the flow of people and goods
into and out of the United States is divided among several agencies in different Cabinet
departments, rather than centralized in a single department. The Immigration and Naturalization
Service (INS) is statutorily housed in the Department of Justice, the U.S. Customs Service in
the Department of the Treasury, and the U.S. Coast Guard in the Department of Transportation.
Thus, each agency is headed by a different Cabinet secretary, each of whom, as principal officers
of the federal Government, reports directly to the President.
In general, the President may not transfer the functions of an agency statutorily created
within one Cabinet department to another Cabinet department without an act of Congress. We
likewise believe that the President may not effectuate that very same transfer simply by
delegating his presidential authority to supervise and control the executive departments to a
particular member of the Cabinet, at least where no statutory authority exists to do so. However,
the President may exercise his own power to establish a comprehensive border control policy for
the federal Government, and then direct a single Cabinet member to lead and coordinate the
efforts of all Cabinet agencies to implement that policy.
*
Editors Note: The Homeland Security Act, Pub. L. No. 107-296, 116 Stat. 2135 (2002), established the
Department of Homeland Security (DHS) as a Cabinet-level department and reorganized the allocation of
statutory duties respecting border control policy that were the subject of this opinion. See 6 U.S.C. § 111(a) (Supp.
II 2002) (establishing DHS); id. § 202(2)-(6) (listing DHSs border control responsibilities); id. § 211(a)
(establishing within DHS the United States Customs Service); id. § 251 (transferring to DHS certain functions of the
Immigration and Naturalization Service); id. § 291(a) (abolishing the Immigration and Naturalization Service); id. §
468(b) (transferring to DHS the functions of the Coast Guard). Opinions of the Office of Legal Counsel in Volume 26
I.
The Constitution expressly provides that [t]he executive Power shall be vested in a
President of the United States of America. U.S. Const. art. II, § 1, cl. 1. He alone is charged
with the power to nominate the principal officers, id. art. II, § 2, cl. 2, and to take Care that the
Laws be faithfully executed, id. art. II, § 3. It is thus well-established that the President is not
only the depositary of the executive power, but the responsible executive minister of the United
States. Relation of the President to the Executive Departments, 7 Op. Atty Gen. 453, 463
(1855).
The scope of the Presidents executive power is limited, however, by the terms of all
valid acts of Congress. Under the Constitution, it is Congress, not the President, that make[s]
all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers
vested by this Constitution in the Government of the United States, or in any Department or
Officer thereof. U.S. Const. art. I, § 8, cl. 18.
Accordingly, Congress may prescribe that a particular executive function may be
performed only by a designated official within the Executive Branch, and not by the President.
The executive power confers upon the President the authority to supervise and control that
official in the performance of those duties, but the President is not constitutionally entitled to
perform those tasks himself. It has long been established that, [i]f the laws . . . require a
particular officer by name to perform a duty, not only is that officer bound to perform it, but no
other officer can perform it without a violation of the law; and were the President to perform it,
he would not only not be taking care that the laws were faithfully executed, but he would be
violating them himself. The President and Accounting Officers, 1 Op. Atty Gen. 624, 625
(1823). Instead the President may control the officer through various means such as the threat of
removal. See, e.g., The Jewels of the Princess of Orange, 2 Op. Atty Gen. 482, 489 (1831)
(although the President could only act through his subordinate officer . . . who is responsible to
him, and who holds his office at his pleasure, the power of removal of the disobedient officer,
and the substitution of one more worthy in his place, would enable the President, through him,
faithfully to execute the law).
We therefore conclude that the President may not transfer the statutory duties and
functions of a bureau in one Cabinet department to another Cabinet department without an act of
Congress. This Office has long held that transfers of statutory authority from one department to
another may normally be accomplished only by legislation or by executive reorganization under
the Reorganization Act. Litigating Authority of the Office of Federal Inspector, Alaska Natural
Gas Transportation System, 4B Op. O.L.C. 820, 823 (1980); see also Department of Labor
Jurisdiction to Investigate Certain Criminal Matters, 10 Op. O.L.C. 130, 132 (1986) (same).
The Reorganization Act, 5 U.S.C. § 901 et seq., once provided the President with a mechanism
for instituting executive reorganization plans, subject to congressional veto, but Congress
retired that authority at the end of 1984, see 5 U.S.C. § 905(b).
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- Centralizing Border Control Policy Under the Supervision of the Attorney General
II.
It has been suggested that the President might reorganize Government operations without
running afoul of the law simply by delegating to a particular individual the Presidents own
constitutionally based executive power to supervise and control certain executive functions.
Under this theory, the President could effectively transfer power over a particular matter from
one Cabinet department to another by delegating to the head of that department the Presidents
power to supervise and control the actions of a subCabinet official in another department, and to
enforce that control through the removal power.
We believe that courts could well decide, however, that the Presidents delegation powers
do not extend so far because some specific things must be done by the President himself. 7
Op. Atty Gen. at 464. Moreover, we caution that an unlawful delegation of power could present
serious consequences for law enforcement in future cases. See, e.g., United States v. Soto-Soto,
598 F.2d 545, 549-50 (9th Cir. 1979) (where FBI agent was not authorized by statute to search
trucks at border, customs authority had not been delegated to agent, and agent conducted search
to discover if truck was stolen rather than to enforce importation law, agents warrantless search
of truck was improper and evidence seized from search was inadmissible under exclusionary
rule).
With regard to the Presidents statutory duties, it is well settled that there exists in the
President an inherent right of delegation. Memorandum re: Delegation of Presidential
Functions, Office of Legal Counsel (Sept. 1, 1955) (1955 Memo). As stated in Myers v.
United States, 272 U.S. 52 (1926), [t]he 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. Id. at 117; see
also 3 U.S.C. § 301 (authorizing President to delegate any function which is vested in the
President by law or any function which [an] officer is required or authorized by law to perform
only with or subject to the approval, ratification, or other action of the President).
Generally speaking, however, acts performable by the President[] as prescribed by the
Constitution are not susceptible of delegation. 1955 Memo (emphasis added). As the Supreme
Court has noted,
[t]here are, undoubtedly, official acts which the Constitution and laws require to
be performed by the President personally, and the performance of which may not
be delegated to heads of departments, or to other officers in the executive branch
of the Government.
McElrath v. United States, 102 U.S. 426, 436 (1880). Thus, the Executive Branch has always
understood that the President may not delegate his pardon power to another man, the Attorney
General or anybody else. 7 Op. Atty Gen. at 464-65. Nor can the President delegate his power
to appoint and remove Executive Branch officials. See id. at 465; 1955 Memo (listing [o]rders
removing Government Officials from office among those actions not delegable).
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- Opinions of the Office of Legal Counsel in Volume 26
To be sure, [w]hether a particular act belongs to one or the other of these classes may
sometimes be very difficult to determine. McElrath, 102 U.S. at 436. We think it likely,
however, that the Presidents authority to control and supervise Executive Branch officials in
one Cabinet department could not be delegated to a separate Cabinet department. After all, such
authority rests substantially on the Presidents removal po