Partisan balance requirements in the age of new formalism.

• Author: Krotoszynski, Ronald J., Jr.
• Position: II. A Historical Overview of Mandatory Partisan Balance Requirements for Independent Federal Agencies C. Acceptance Leads to Even Greater Encroachment through Conclusion, with footnotes, p. 979-1017

3. Acceptance Leads to Even Greater Encroachment

   Into recent times, Congress continues to make the partisan balance requirement a key means of ensuring agency independence. (243) Since 1989, approximately 950 bills have been introduced in Congress that propose to create some new federal administrative body with a mandated split in political party representation among its members. (244) As some in Congress have boasted, partisan balance requirements "may be found from near the beginning to near the end of the 50 titles of the United States Code." (245)

   This continued reliance on mandated partisan balance requirements is the result of Congress's belief that it may constitutionally wield this power over executive branch appointments. (246) It also reflects the legislative branch's belief that such limitations on the President's appointment powers are necessary to ensure that appointments are made based on relevant expertise and not partisanship (247)--all with the hope of enhancing the perceived credibility and operational efficacy of independent federal agencies. (248)

   Congress certainly has embraced with gusto the proposition that historical practice ratifies its power to impose partisan quotas on presidential appointments to agencies it deems "independent." (249) Additionally, Congress has even taken the view that it has the power to impose similar requirements on presidential appointments to agencies housed within cabinet-level departments, (250) "Article I" courts, (251) and even "Article III" courts. (252)

   Moreover, in recent years, Congress has taken the step of requiring the President to seek preclearance from Congress before making certain appointments. The organic act of the Privacy and Civil Liberties Oversight Board requires that the President appoint, in a somewhat paradoxical fashion, five members "without regard to political affiliation, but in no event shall more than 3 members of the Board be members of the same political party." (253) The requirements do not stop there, however. Before appointing a member who is not of the President's own party, the President must "consult with the leadership of that party, if any, in the Senate and House of Representatives." (254) The purpose of this provision is clear: "[T]hose individuals who are not of the same political party as the President can only be appointed after the President has consulted with the leadership of the nominee's party." (255)

   Congress has failed to provide explicit justification for this new requirement on presidential appointment, and this is troubling, given that pre-appointment "consultation" seems to go far beyond the Senate's accepted constitutional role of giving "Advice and Consent" (256) to presidential appointees.

   Perhaps the political context of the time explains Congress's motive for this novel requirement. In 2007, the time the Oversight Board's organic act was amended to include the presidential consultation requirement, both Houses were controlled by Democratic majorities, and Republican President George W. Bush had another two years in the White House. Some scholars have opined that the greatest push for independence in administrative agencies comes at times when the parties enjoy divided control over Congress (or at least one house) and the White House. (257) No matter the motive, the Oversight Board's consultation requirement is just the latest example of a means of securing "independence" that arguably violates the separation of powers doctrine.

   It also bears noting that the executive branch has not simply accepted limitations on the President's constitutional appointment power. The opinions of the Office of Legal Counsel (OLC), a division of the Department of Justice, provide strong counterevidence of presidential acquiescence in congressional efforts to control presidential appointments. (258) In fact, OLC's formal opinions stand in considerable tension with Senator Mitchell's history of a joint or shared vision of the appointment power. Although the OLC has not consistently branded partisan balance requirements as unconstitutional, the office has consistently asserted that limits on the President's appointment power are constitutionally suspect.

   In 1979, during the Carter Administration, OLC issued an opinion concluding that the Age Discrimination in Employment Act of 1967 did not bar the President from considering the age of judicial appointees. (259) In that opinion, OLC readily admitted the power of Congress "to prescribe qualifications for office," including the power to require that the "President appoint members of both parties to certain kinds of boards and commissions." (260) OLC resolved, however, that the "power of appointment belongs to the President, and it cannot be usurped or abridged by Congress." (261) The "balance" between these two realms, the opinion stated, depended on the "nature of the office in question"--the closer the office lies to the President, the more problematic the qualifications become. (262)

   The 1980s saw two Republican administrations and a broader view of the proper scope of the President's appointment power. In 1989, OLC issued an opinion entitled "Common Legislative Encroachments on executive branch Authority." (263) Abandoning the notion of "balance" in the 1979 opinion, the OLC asserted:

   Congress ... imposes impermissible qualifications requirements on principal officers. For instance, Congress will require that a fixed number of members of certain commissions be from a particular political party. These requirements ... violate the Appointments Clause. The only congressional check that the Constitution places on the President's power to appoint "principal officers" is the advice and consent of the Senate. (264) This robust, highly expansive view of the President's Article II appointment power helps to explain the first President Bush's opposition to the seemingly innocuous Udall Foundation bill. (265)

   After the election of President Bill Clinton in 1992, OLC again revised its position regarding the constitutional permissibility of mandatory partisan balance requirements. In 1996, President Clinton's OLC expressed the opinion that the Lobbying Disclosure Act of 1995, which purported to disqualify certain candidates from appointment as U.S. Trade Representative, was an unconstitutional intrusion on the President's appointment power. (266) In doing so, OLC cited its earlier 1979 opinion positing that an appropriate "balance" allows certain congressional restrictions on presidential nominations. (267) OLC argued that a proper analysis depends on the nature of the office--if the "position in question is especially close to the President," then the President must enjoy expansive authority to choose whom he pleases to serve in the executive office at issue. (268)

   To be sure, OLC's opinions reflect the fact that Presidents have not been unanimous in their understanding of the appointment power. However, the point remains that OLC has never accepted any and all congressional encroachments on the President's appointment power. For example, a report by the Congressional Research Service acknowledges that OLC's position has changed over time, but nevertheless concludes that, taken as whole, "they clearly do not endorse the view that [the authority of Congress to set qualifications for office] is broad." (269) The OLC's formal opinions on the President's constitutional appointments authority demonstrate that the executive branch has not simply acquiesced in congressional efforts to shape or control the appointments process--including partisan balance requirements. (270)

   In sum, many factors have driven Congress's use of partisan balance requirements from the 1880s to the present day: a desired focus on expertise above partisanship; an effort to form a bipartisan solution to difficult policy issues; and a desire to foster a sense of legitimacy in the agency's actions in the public's eye. A less benign motive appears to be the desire of Congress to have significant input on the selection of principal officers within the executive branch.

   Whatever its original motivations and justifications, however, the contemporary Congress plainly claims a general power to impose partisan balance requirements on any and all independent federal agencies and is inclined to jealously guard this prerogative. Congress does so without any regard to the effects that this historical practice has played, and continues to play, on the power of the chief executive to faithfully execute the laws. Moreover, when the chief executive does speak out, Congress has demonstrated that it is willing to defend vigorously against challenges to its power to mandate partisan balance requirements.

   3. THE LEGAL AND POLICY IMPLICATIONS OF PARTISAN BALANCE REQUIREMENTS FOR PRESIDENTIAL APPOINTMENTS TO INDEPENDENT FEDERAL AGENCIES

   This Part focuses on the statutory partisan balance requirements that currently encumber Presidents when selecting principal officers to staff so-called independent federal regulatory agencies. We argue that partisan balance requirements, although superficially attractive, have serious detrimental consequences for effective presidential control of independent agencies. Not only are these statutory impediments arguably unconstitutional on separation of powers grounds, but, from a practical (functionalist) perspective, they also work to undermine presidential control of the executive branch. Independent agencies are already highly insulated from direct presidential control by virtue of the fact that their heads enjoy fixed terms of office and protection from presidential removal absent good cause shown (with judicial review available for any such good cause removals). (271)

   Any further attenuation of presidential control arguably constitutes a constitutionally undue burden on the President's ability to faithfully execute the laws of the United States. (272) As Chief Justice John G. Roberts...