Concurrent Delegations in the Department of Housing and Urban Development

April 19, 1978

78-21 MEMORANDUM OPINION FOR THE GENERAL COUNSEL, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Department of Housing and Urban Development— Delegations of Authority— 42 U.S.C. §§ 3533, 3535

This responds to your request for our opinion concerning concurrent delegations in the Department of Housing and Urban Development (HUD). Generally, they consist of the delegation of authority by the Secretary of HUD to an officer required to be appointed by the President by and with the advice and consent of the Senate1 and to that officer’s deputy appointed by the Secretary2 in such fashion that the deputy may exercise the authority when both are on duty. The Secretary’s delegations to his or her principal officers3 are authorized, and indeed required, because the Department of Housing and Urban Develop­ ment Act and other statutes administered by the Secretary vest most, if not all, of the functions of the Department in the Secretary.4 But the Act also provides that the principal officers o f the Department are to: perform such functions, powers and duties as the Secretary shall prescribe from time to tim e.5 The delegations to the deputies are based on § 7(d), 42 U .S.C . § 3535(d), pursuant to which: The Secretary may delegate any o f his functions, powers, and duties to such officers and employees o f the Department as he may

'D e p a rtm e n t o f H o u sin g an d U rb an D e v elo p m en t A ct (A c t), § 4 (a ), 79 S tat. 6 6 8 , as a m e n d ed , 42 U .S .C . § 3 5 3 3 (a); see also 4 2 U .S .C . § 3 5 3 3 a. 2S ectio n 7 (c) o f the A c t, 4 2 U .S .C . 3 5 3 5 (c). ’T h e term “ p rin cip al o ffic e r” in clu d es th e U n d e r S e c re ta ry , the A ssista n t S e c re ta rie s, the O eneral C o u n se l, an d the F e d e ra l In su ra n c e A d m in istra to r. A c t, § 4 (a ). W e re fe r to th e m as A ssistant S ec re ta rie s. 4S ection 4 o f th e A c t, 4 2 U .S .C . § 3 5 3 4 ; see also, e.g., th e N atio n al F lood In su ra n c e A ct o f 1968, P u b . L . N o . 9 0 -4 4 8 , T itle X III, 82 S ta t. 57 2 . ’ S ectio n 4 (a ), 4 2 U .S .C . § 3 5 3 3 (a ).

designate, may authorize such successive redelegations of such functions, powers, and duties as he may deem desirable, and may make such rules and regulations as may be necessary to carry out his functions, powers, and duties. We have been advised by your Department that the Assistant Secretaries and their deputies do not, as the result of the concurrent delegations, hold their offices jointly; the deputy does not become the coequal of the Assistant Secretary. The latter retains the responsibility for the subdivision he heads. He has the power to direct his deputy, and prevails in case o f disagreement. While both parties may have the same apparent powers with respect to outsiders, there is no doubt that in the internal relations between the Assistant Secretary and his deputy the form er is the superior. The status o f Assistant Secretary as the officer responsible for his subdivision is made manifest in a HUD handbook entitled “ Organization o f the Department of Housing and Urban D evelopm ent.” It places the duties and responsibilities for the several departmental subdivisions in the Assistant Secretary who heads it, and not jointly in the Assistant Secretary and his deputy who hold a concurrent delegation.6 Thus, the purpose o f the concurrent delegations is not to modify the hierarchical organization o f the Department, but rather is a matter of form and administrative convenience. It is designed above all to enable the deputy to sign documents without having to establish, possibly years later, that the Presidential appointee was absent or disabled at that time, and, second, to lessen the principal’s workload, without detracting from his authority or responsibility, by authorizing the deputy to take action even if the principal is physically available.7 Senator Eagleton has recently challenged the legality o f a concurrent delegation to the Federal Insurance Adm inistrator and to his deputy, see 124 Cong. Rec. S 2521 (Daily E d ., February 28, 1978),8 and has introduced a bill, S. 2602 (95th C ong., 2d sess.), that would in effect prohibit the practice of concurrent delegations to an officer, whether or not he had been appointed by and with the advice and consent of the Senate. Senator Eagleton’s objection to concurrent delegations is based on the proposition that the confirmation process would be “ a m ockery” if, after the Senate’s careful inquiry into the background and qualifications of the person nominated by the President, the same functions can be exercised by someone

‘ H o w ev e r, w e h a v e b e en a d v ise d th at th e s u b se q u e n t c o n c u rre n t d e le g atio n s d id not affe c t the allo c atio n o f re sp o n sib ility set fo rth in th e h a n d b o o k . 7It sh o u ld be n o te d th at th e se re su lts c o u ld a lso h av e b een a c h ie v e d by a re d e le g atio n by the P resid en tial a p p o in te e s p ec ifica lly a u th o riz e d by § 7(d ) o f the A ct; 42 U .S .C . § 3535(d). “T h is p a rtic u la r c o n c u rre n t d e le g a tio n w a s re v o k e d o n F e b ru a ry 24 , 1978; 43 F .R . 77 1 9 . T h is re v o c atio n , h o w e v e r, d o e s n o t re so lv e th e p ro b le m sin ce , a cc o rd in g to a c o m p ila tio n p rep ared by the A m e ric a n L aw D iv isio n o f th e L ib ra ry o f C o n g re ss , c o n c u rre n t d e le g a tio n s h av e b een g iv en to the G e n eral C o u n se l; th e A ssista n t S e c re ta ry fo r H o u sin g — F e d e ra l H o u sin g C o m m issio n e r; and the A ssista n t S e c re ta rie s fo r A d m in is tra tio n , fo r N e ig h b o rh o o d s , V o lu n ta ry A ss o c ia tio n s, and C o n su m e r P ro te c tio n , an d fo r F a ir H o u sin g an d E q u al O p p o rtu n ity .

about whom the Senate knows nothing.9 In support of his position Senator Eagleton submitted a memorandum from the American Law Division of the Library o f Congress which, relying on Buckley v. Valeo, 424 U.S. 1 (1976), and Williams v. Phillips, 360 F. Supp. 1363 (D .D .C . 1973), stay denied, 482 F. (2d) 669 (D .C. Cir. 1973), states: . . . that, although the matter is not free from doubt, the courts are likely to hold that HUD may not administratively create an office which would concurrently exercise functions with a statutorily created office which must be filed by a presidential nominee with the advice and consent of the Senate. [124 Cong. Rec. S. 2523 (Daily, Ed., February 28, 1978)] In our opinion, the two cases cited by the Library of Congress memorandum are inapplicable to the system of concurrent delegations prevailing in your Department. The portion o f the opinion in Buckley v. Valeo pertinent to the problem at hand (pp. 124-141), holds that “ any appointee exercising signifi­ cant authority pursuant to the laws of the United States is an ‘Officer of the United States,’ and must, therefore, be appointed in the manner prescribed by § 2, cl. 2 o f that Article [i.e., Article II of the Constitution]” (at p. 126). Under the concurrent delegations here involved a deputy holding a concurrent delegation unquestionably exercises significant authority pursuant to the laws of the United States; hence he has to be appointed pursuant to one o f the procedures established by Article II, § 2, cl. 2. The constitutional provision states that officers of the United States must be appointed by the President by and with the advice and consent of the Senate, unless in the case o f inferior officers, Congress by law vests the appointment in the President alone, the courts of law, or the heads o f departments. Congress has exercised its power here by vesting the appointment o f inferior officers in your Department in the Secretary. Section 7(c), supra, authorizes the Secretary to appoint “ such officers and employees . . . as shall be necessary to carry out the provisions of this Act and to prescribe their authority and duties.” [Emphasis added.] Deputy Assistant Secretaries unquestionably are inferior officers who can be appointed by a Department h e a d .10 The Deputy Assistant Secretaries of HUD, accordingly, have been appointed by the Secretary pursuant to a statute which authorizes him to do so. The constitutional requirement set forth in Buckley v. Valeo therefore has been met. There is also the implication that a person to whom an authority equal to that of an Assistant Secretary has been delegated cannot be appointed pursuant to § 7(c), because Congress has required that the latter must be appointed by the

‘'T h is a rg u m e n t fails to re a liz e , as w ill be sh o w n in fu rth e r d etail b e lo w , that in c o n firm in g a D ep artm en t h ead an d e v en an A ssista n t S e c re ta ry , the S e n a te d o es not e x p ec t him to m a k e all the d e cisio n s o f th e o ffic e o v e r w h ich he h a s ju risd ic tio n , but ra th e r th at he is e x p ec te d to be resp o n sib le fo r its g e n eral g u id a n c e an d su p erv isio n . I0ln som e A g e n cie s e v en so m e o ffic e rs h o ld in g th e ran k o f A ssista n t S e c re ta ry are a p p o in te d by the D ep artm en t h e ad . See, e.g., the A ssista n t A tto rn e y G e n eral fo r A d m in istra tio n (2 8 U .S .C . § 507); and th e A ssista n t S e c re ta ry o f A g ric u ltu re fo r A d m in istra tio n . R eo rg an iza tio n P lan N o. 2, o f 1953, § 3 , 7 U .S .C . § 2201 n o te , an d see 7 U .S .C . § 2213.

President by and with the advice and consent o f the Senate. In that connection reliance is placed on Williams v. Phillips, supra. That case involved a vacancy in the office of the Director o f the Office of Economic Opportunity, an advice-and-consent position (42 U .S .C . § 2941(a)), which the President had filled on an acting basis for a considerable period of time with a person who had not been confirmed. The district court held that where a statute specifically provides that a position must be filled with a person appointed by the President by and with the advice and consent of the Senate, the President cannot avoid the statutory requirement by filling it, even on an acting basis, with a person who has not been confirm ed by the Senate in the absence of a statutory authoriza­ tio n .1' The statutory structure in your Department is quite different from the one involved in Phillips. The only advice-and-consent position in your Department, the powers and responsibilities o f which are defined by statute, is that of the Secretary. The Department o f Housing and Urban Development Act, § 3(a), 42 U .S.C . § 3532(a). The other departmental positions requiring Senate confirma­ tion are set forth in § 4(a), but the Act does not prescribe their functions and responsibilities; to the contrary, § 4(a) provides that they shall have such powers and duties as may be prescribed by the Secretary.12 On the other hand, § 7(d) provides for a general delegation of authority vested in the Secretary. The statute thus— with the exceptions noted— does not direct what functions must be vested in officers who have been confirmed by the Senate; to the contrary, on its face it permits the Secretary to delegate any of his functions to any officer in the Department. We are not confronted with the situation presented in Phillips, where a statute provided specifically that a certain position had to be filled by an officer confirmed by the Senate. Here the Act, with a few exceptions, gives the Secretary discretion as to the functions he wishes to vest in an Assistant Secretary, and those functions he wishes to retain or delegate to an officer not subject to Senate confirm ation. We are, however, willing to believe arguendo that where a statute requires the confirmation o f an officer, it implicitly provides that a provision such as § 7(d), which authorizes the Secretary to delegate any o f his functions to any officer he may designate, cannot be used to give an unconfirmed officer the same organizational position as an officer who must be confirmed. The requirement o f confirm ation connotes that the officer shall be the head of the departmental subdivision placed in his charge, that he shall be responsible for

" T h e o p in io n o f th e C o u rt o f A p p e a ls w h ile d e n y in g a stay o f the lo w e r c o u rt's d e cisio n su g g este d th at the P resid e n t h as th e p o w e r to a p p o in t an o fficial w h o had not b een c o n firm ed by the S en ate o n an actin g b a sis fo r a lim ited p e rio d o f tim e. l2T h e o n ly e x c e p tio n is th e A ssista n t S e c re ta ry d e sig n a te d to be the F ederal H ou sin g C o m m is sio n e r. H e “ sh all a d m in is te r, u n d e r th e su p e rv isio n and d ire c tio n o f the S e c re ta ry , d e p artm e n tal p ro g ram s re la tin g to th e p riv a te m o rtg ag e m a rk e t.” B ut e v en th is p ro v isio n d o e s not p re c lu d e th e d e le g a tio n o f o th e r fu n c tio n s to h im . A g a in it c o u ld be im p lie d from 42 U .S .C . § 3 5 3 3 a , w h ic h e sta b lis h e s th e O ffice o f th e F e d e ra l In su ra n c e A d m in istra to r, that C o n g re ss e x p ec te d th at th e S e c re ta ry w o u ld d e le g a te to him th e re sp o n sib ility fo r the in su ran ce p ro g ram s ad m in iste re d by H U D .

it, and that he alone shall have the overall power and authority, under the supervision of the Secretary, to direct and control the manner in which all other officers assigned to his subdivision perform their duties. On the other hand, he is not and cannot be expected to perform or even to supervise personally all the activities assigned to his subdivision as long as he retains the overall direction.13 A concurrent delegation that would remove a Deputy Assistant Secretary from the general supervision and control of the Assistant Secretary and give him equal powers of performance and equal control over a departmental subdivision might well be inconsistent with the confirmation requirement for the position of Assistant Secretary. However, as we have been advised by your Department, the concurrent delegations are not designed to impair the Assistant Secretary’s responsibility for and control over the subdivision that is in his charge. The concurrent delegations generally refer to the Assistant Secretary’s “ power and authority,” i.e., the day-to-day execution o f the statutes in his charge, whose performance must by necessity be delegated and perhaps subdelegated. The delegations do not, however, erode the Assistant Secretary’s legal accountability. That responsibility is not included in the concurrent delegation to the deputy and remains vested in the Assistant Secretary.14 A comparison o f the Handbook with the concurrent delegations reproduced at 124 Cong. Rec. S. 2523-2525 (Daily E d., February 28, 1978) demonstrates the difference between the powers and authorities covered by the delegations and the hierarchical responsibilities that are not affected. We conclude that because the Assistant Secretaries retain both responsibility for and control over the action of the Deputy Assistant Secretaries, the concurrent delegations do not conflict with the confirmation process and, therefore, constitute a valid exercise of the Secretary’s authority.

Joh n M . H arm o n Assistant Attorney General Office o f Legal Counsel

l3In Barr v. Matteo, 3 6 0 U .S . 5 6 4 , 5 7 3 (1 9 5 9 ), the C o u rt stated th at “ the c o m p le x itie s and m a g nitude o f g o v e rn m e n ta l a c tiv ity h av e b e c o m e so g re a t th at th e re m u st o f n e ce ssity b e a de le g atio n an d re d e le g atio n as to m an y fu n c tio n s. . . . ” See also. Cooper v. O'Connor, 9 9 F . (2d) 135, 142 (D C . C ir. 19 3 8 ), c e rt, d e n ie d , 3 0 5 U .S . 6 4 3 (1 9 3 8 ). l4See in th is c o n te x t th e v a rio u s d e le g a tio n s in 24 C F R P art 3 w h e re it is sp elled o u t th a t the several co n cu rre n t d e le g a tio n s to d e p u tie s c o n ta in ed in th a t P art are su b je c t to the general supervision o f th e p rin c ip a l. In o rd e r to av o id fu tu re m isu n d e rsta n d in g s, it m a y be d e sirab le to include sim ila r c la u se s in all c o n c u rre n t d e le g atio n s.