Tuesday, June 29, 2010

OLC: Emoluments Clause Not Applicable to Nongovernmental Members of ACUS

The Office of Legal Counsel released a memorandum last week that opined that the Emoluments Clause does not apply to nongovernmental members of the Administrative Conference of the United States (ACUS)--that nongovernmental members do not hold an "Office of . . . Trust" within the meaning of the Clause.

The Emoluments Clause, Article I, Section 9, Clause 8, forbids anyone "holding any Office of Profit or Trust" from accepting, without congressional consent, "any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

ACUS was established in 1964 to develop recommendations to improve federal agency procedure.  It consists of between 75 and 101 governmental and nongovernmental members, including a Chairman and a Council.  The Chair is appointed by the President for a five-year term, with the advice and consent of the Senate; the Council is composed of the Chair and ten other governmental and nongovernmental members, the latter ten for three-year terms without Senate involvement.  The Chair may appoint to ACUS, with Council approval, not more than 40 nongovernmental members for two-year terms; they are selected by the Chair to "provide [a] broad representation of the views of private citizens and [to] utilize diverse experiences," and "shall be members of the practicing bar, scholars in the field of adminstrative law or government, or others specially informed by knowledge and expertise with respect to Federal administrative procedure."  5 U.S.C. Sec. 593(b)(6).

ACUS ceased operations in 1995.  Congress reauthorized it 2008, and it began operations last year.

The OLC opinion that the Emoluments Clause does not apply to nongovernmental members is, according to the Office, in line with its most recent opinions on application of the Clause to nongovernmental members of advisory committees.  But it wasn't always so.  As the opinion explains:

In 1993 our Office advised that the Emoluments Clause applied to the nongovernmental members of ACUS. . . .  First, we noted that ACUS was a "Federal agency established by statute."  Second, although we acknowledged that ACUS was an advisory committee as well as an agency, we cited to our then prevailing view that "Federal advisory committee members hold offices of profit or trust within the meaning of the Emoluments Clause."  Third, we noted that the Conference's advice and recommendations "have had (and were intended to have) a significant effect on the Government's administrative processes."  Finally, we observed that "under the Conference's own by-laws, its members may be considered to be special government employees subject to Federal conflict of interest statutes and regulations.

Opinion at 3. 

Subsequent opinions have read the Clause's requirement for an office of profit or trust more narrowly.  In the opinion released last week, the Office ruled that nongovernmental members of ACUS do not fall within this category, because they serve without compensation, they are not given access to classified information, are likely to constitute only a minority of the Conference and the Council, and have authority over only certain limited decisiions of the Chair.  The fact that they are special government employees subject to federal conflict of interest rules was not determinative.



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