Authority of the President to Reassign the
            Chairmanship of the Federal Power Commission
The President has the power to remove the commissioner now serving as Chairman of the Federal
  Power Commission and reassign the chairmanship to another commissioner, and if the matter were
  to be litigated by the commissioner following his involuntary removal from chairmanship, the
  President’s power to remove him would probably, but not certainly, be sustained.

                                                                                       May 11, 1961

                 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL*

   A question has arisen concerning the power of the President to designate a new
Chairman of the Federal Power Commission prior to the expiration of the term of
the commissioner now exercising that function under a designation by President
Eisenhower. The problem is current: On January 26, 1961, it was announced that
Mr. James C. Swidler of Tennessee would be designated by the President as the
new Chairman of the Commission. Because the law pertaining to the designation
of the Chairman is somewhat ambiguous, there is ground for the proposition that
the incumbent Chairman cannot be removed by the President until his term as a
member ends. For the incumbent Chairman, Jerome K. Kuykendall, this will not
occur until June 22, 1962. According to press reports, Mr. Kuykendall’s associates
say that he has no intention of resigning. If he takes the position that the President
cannot remove him from the chairmanship, the administration will be faced with
an embarrassing impasse arising out of the January 26th announcement that Mr.
Swidler is to be Chairman. If Mr. Kuykendall is removed, the matter might be
forced into litigation.
   Mr. Kuykendall’s remedies, in the event of his removal by the President are:
(1) to sue in the five-judge court of claims under 28 U.S.C. § 1491 for the $500
additional salary allowed to the Chairman of the Federal Power Commission; 1 or
(2) to test his successor’s right to office as Chairman by a suit against him in the
District Court for the District of Columbia in the nature of quo warranto. This
action is specifically authorized by District of Columbia Code sections 16-1601
through 16-1611, and may be maintained by a private person directly interested in
the federal office involved. Newman v. United States ex rel. Frizzell, 238 U.S. 537
(1915); see Wiener v. United States, 357 U.S. 349, 351 n.* (1958). A suit for
reinstatement in the district court against the removing authority, the form

    *
      Editor’s Note: This opinion for the Attorney General addresses the same issue as the opinion for
the Assistant Special Counsel to the President, rendered three months earlier and also included in this
volume (Authority of the President to Designate Another Member as Chairman of the Federal Power
Commission, 1 Op. O.L.C. Supp. 206 (Feb. 28, 1961)).
    1
      While Chairman, a commissioner’s compensation is $500 more per annum than he would other-
wise receive. Pub. L. No. 84-854, §§ 105(7), 106(45), 70 Stat. 736, 737–38 (1956) (codified at 5 U.S.C.
§§ 2204(7), 2205(45) (1958)).




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             Authority of the President to Reassign the Chairmanship of the FPC


normally used to test the legality of dismissals of subordinate employees of the
government under the civil service laws, would not be available to Mr. Kuykendall
because the President is not subject to suit in personam testing the legality of his
official actions. Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866).
   In the event that Mr. Kuykendall pursues either of the remedies available to
him, there is some risk that a decision adverse to the President which might be
entered by a lower court will not be accepted for review by the Supreme Court.
Mr. Kuykendall’s term expires in 14 months. Because the question is confined to
the Federal Power Commission alone, and because prospective difficulties can be
clarified by a new reorganization plan for the Federal Power Commission, the
Supreme Court may not consider the matter sufficiently important to review on
certiorari.2
   I have reviewed the relevant statutes and legal materials bearing on this prob-
lem and conclude: (1) substantial arguments can be made for both sides of the
question; but (2) if the matter were to be litigated by Mr. Kuykendall following his
involuntary removal from chairmanship, the President’s power to remove him
would probably, but not certainly, be sustained. The qualification I have stated is
necessary because the laws pertaining to the Federal Power Commission chair-
manship are sufficiently ambiguous to subject litigation of the question to definite
risks for both sides.

                                                  I.

   The Office of the Chairman of the Federal Power Commission was created and
defined by the Federal Water Power Act of 1930, which provided:

        That a commission is hereby created and established, to be known as
        the Federal Power Commission (hereinafter referred to as the “com-
        mission”) which shall be composed of five commissioners who shall
        be appointed by the President, by and with the advice and consent of
        the Senate, one of whom shall be designated by the President as
        chairman and shall be the principal executive officer of the commis-
        sion: Provided, That after the expiration of the original term of the
        commissioner so designated as chairman by the President, chairmen
        shall be elected by the commission itself, each chairman when so
        elected to act as such until the expiration of his term office.

Pub. L. No. 71-412, 46 Stat. 797, 797.


    2
      If Mr. Kuykendall sues in the district court (from which appeal can be taken to the Court of
Appeals for the District of Columbia Circuit) his action for relief quo warranto would become moot
when his term as a member expires. It is most likely therefore that he will sue in the Court of Claims
for the extra salary due him.




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           Supplemental Opinions of the Office of Legal Counsel in Volume 1


    This language indicates that the Chairman is simply a commissioner who, in
addition to his responsibilities as a voting member of the Commission performing
adjudicatory and quasi-legislative functions, also performs executive and adminis-
trative functions as principal executive officer of the agency. The designation of a
new Chairman therefore merely constitutes a reassignment of those executive and
administrative functions. The former Chairman continues to act as a commissioner
performing the same adjudicatory and quasi-legislative functions as any other
commissioner.
    In 1949, as a result of studies undertaken by a task force of the Commission on
Reorganization of the Executive Branch of the Government, commonly known as
the Hoover Commission, President Truman forwarded to the Congress, under the
provisions of the Reorganization Act of 1949, Pub. L. No. 81-109, 63 Stat. 203
(codified at 5 U.S.C. §§ 133z et seq. (1958)), certain changes in the manner of
selecting and in the executive role of the chairmen of four independent regulatory
commissions, including the Federal Power Commission. Reorganization Plans
Nos. 1 to 13 of 1950, H.R. Doc. No. 81-504 (1950). The changes pertaining to the
latter were set forth in Reorganization Plan No. 9 of 1950, 3 C.F.R. 166 (Supp.
1950), which became effective on May 24, 1950, 64 Stat. 1265. Section 3 of the
Plan changed the manner of selection of the Chairman from election by the
commissioners to designation by the President:

      Designation of Chairman.—The functions of the Commission with
      respect to choosing a Chairman from among the commissioners
      composing the Commission are hereby transferred to the President.

A similar provision appeared in the plans submitted for the three other commis-
sions. H.R. Doc. Nos. 81-511, 81-512, 81-514 (1950). As is shown by the history
of the plans discussed herein, it was the President’s purpose to make uniform his
powers with respect to the appointment of the chairmen of such commissions.
   The solution to the problem of the President’s power to reassign the chairman-
ship of the Federal Power Commission turns upon the technical effect that
section 3 of Reorganization Plan 9 had upon the provisions of the Federal Water
Power Act of 1930, quoted above. One view is that section 3 did not affect the
Chairman’s term because it made no reference to it; the other, which I set out in
detail herein, is that no specific grant of a power of removal was necessary once
designation of the Chairman had been vested in the President.
   In considering the technical effect of section 3, it should be noted that Dean
Landis, in his Report on Regulatory Agencies to the President-Elect, viewed the
law as being so ambiguous that a new reorganization plan for the Federal Power
Commission was necessary “making clear that the tenure of its Chairman is at the
pleasure of the President.” Staff of S. Comm. on the Judiciary, 86th Cong., Report
on Regulatory Agencies to the President-Elect 85 (Comm. Print 1960) (recom-
mendation 3). In discussing presidential control of chairmanships, Dean Landis




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           Authority of the President to Reassign the Chairmanship of the FPC


observed that “[t]he situation with respect to the Federal Power Commission is
somewhat confused in this respect due to a palpable error in the drafting of the
reorganization plan covering that agency.” Id. at 31. These comments would
undoubtedly be used to support Mr. Kuykendall’s position in litigation.
    In considering this problem a clear distinction must be drawn between the issue
at hand—the President’s power to control the term of the incumbent of an office
which is purely executive and administrative—and the entirely distinct question of
the President’s power to remove from office as commissioners members of a
tribunal performing quasi-judicial and quasi-legislative functions. The chairman-
ship of the Federal Power Commission does not carry with it any increased powers
insofar as concerns the latter: the Chairman, like his fellow commissioners, has
only one vote on matters which must be considered by the Commission in its
regulatory capacity. The chairmanship is simply an additional assignment to a
commissioner of duties and responsibilities of an executive nature. Cases concern-
ing the term of office as commissioner of a commissioner of an independent
agency performing regulatory functions, therefore, may be put aside. See, e.g.,
Wiener v. United States, 357 U.S. 349 (1958); Humphrey’s Ex’r v. United States,
295 U.S. 602 (1935). The question at hand is concerned only with the intent of the
President and the Congress in changing the manner of designating the Commis-
sion’s executive head, as that intent was manifested and made effective by
Reorganization Plan 9.
    The purpose of changing the mode of selecting the Chairman from election by
the commission to designation by the President was explained in President
Truman’s message transmitting Reorganization Plans 1 to 13 of 1950 to the
Congress:

          In the plans relative to four commissions—the Interstate Com-
       merce Commission, the Federal Trade Commission, the Federal
       Power Commission, and the Securities and Exchange Commission—
       the function of designating the Chairman is transferred to the Presi-
       dent. The President by law now designates the Chairmen of the other
       three regulatory commissions covered by these plans. The designa-
       tion of all Chairmen by the President follows out the general concept
       of the Commission on Organization for providing clearer lines of
       management responsibility in the executive branch. The plans are
       aimed at achieving more fully these management objectives and are
       not intended to affect the independent exercise of the commissions’
       regulatory functions.

H.R. Doc. No. 81-504, at 5.
    Under section 6(a) of the Reorganization Act of 1949, a reorganization plan
proposed by the President becomes effective sixty days of continuous session after
it is submitted to the Congress, unless either house passes a resolution stating that




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           Supplemental Opinions of the Office of Legal Counsel in Volume 1


that house does not favor the plan. 63 Stat. at 205 (codified at 5 U.S.C. § 133z-
4(a)). Legislative inaction constitutes acquiescence.
   No objection to Plan 9 was raised in the House of Representatives. But because
of concern that designation of the Chairman by the President might derogate from
the independence of the Federal Power Commission, as well as for other reasons, a
resolution was introduced in the Senate stating that the Senate was not in favor of
that plan. S. Res. 255, 81st Cong. (1950).
   Hearings on Senate Resolution 255 and similar resolutions for other plans were
conducted by the Senate Committee on Expenditures in the Executive Depart-
ments. Reorganization Plans Nos. 7, 8, 9, and 11 of 1950: Hearings on S. Res.
253, 254, 255, and 256 Before the S. Comm. on Expenditures in the Executive
Departments, 81st Cong. (1950) (“Reorganization Hearings”). At the hearings,
Budget Director Frederick J. Lawton explained:

           The plans affecting the Interstate Commerce Commission, the
       Federal Trade Commission, and the Federal Power Commission pro-
       vide that the President shall designate a Commissioner to serve as
       Chairman. These provisions will vest uniformly in the President the
       function of designating Commission Chairmen. At present he al-
       ready designates the Chairmen in the Federal Communications
       Commission, the National Labor Relations Board, and the Civil Aer-
       onautics Board. The Commission on Organization itself took no po-
       sition on this issue, pro or con. The task force of the Commission,
       which reported on the regulatory commissions, however, recom-
       mended:

          The Chairman of each Commission should be designated by the
          President.

          In support of this proposal the task force stated:

          This will facilitate communication between the President and the
          Commission on matters of mutual concern and assist in coordina-
          tion with the rest of the Government without impairing the inde-
          pendence of the Commission. It will also promote more effective
          internal administration of the Commission.

          Since the President now designates some Chairmen and does not
       designate others, and since Presidential designation has these ad-
       vantages pointed out by the task force, these plans authorize Presi-
       dential designation of Chairmen in all cases.

Id. at 30–31.




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          Authority of the President to Reassign the Chairmanship of the FPC


    The task force referred to by Mr. Lawton was the Hoover Commission’s Com-
mittee on Independent Regulatory Commissions, whose report had been transmit-
ted to the Congress on January 13, 1949. Task Force Report on Regulatory
Commissions [Appendix N], Prepared for the Commission on Organization of the
Executive Branch of the Government (Jan. 1949). This report, after a complete
survey of the independent regulatory commissions, had recommended that the
Chairman of each commission should be designated from among the members by
the President and should serve as Chairman at his pleasure, although protected
against removal as a member. The purpose of this recommendation was, first, to
facilitate communication between the President and the Commission by having
each commission headed by the member most acceptable to the President; and
second, to strengthen the Chairman’s role as administrative head of the agency by
conferring presidential support upon him, thereby improving the internal admin-
istration of the commission. Id. at 31–33.
    The members of the Federal Power Commission did not appear as witnesses in
the hearings. On behalf of the Commission, however, its Chairman submitted to
the committee a brief statement favoring Reorganization Plan 9. Reorganization
Hearings at 214–15. Mr. Thomas C. Buchanan, a member of the Commission,
submitted a separate statement, in which he took the position that the provision in
the plan for presidential designation of the Chairman did not affect the Chairman’s
term. He stated:

          The provision for the selection of the Chairman by the President
      changes only the method of “choosing” and does not affect the term
      of the Chairman so selected under existing law.

         The term of a Federal Power Commissioner is presently 5 years,
      therefore, a President in the fourth year of his term might select as
      Chairman the member of the Commission nominated by him and
      confirmed by the Senate during that year. Under the terms of plan 9
      as applied to the old law, the Chairman so selected would serve as
      such not only during the fourth year of the Presidential term in which
      he was appointed, but likewise 4 years of the succeeding term even
      though there may be a change in the Presidential office.

Id. at 215–16.
    The Senate Committee, in reporting against the resolution of disapproval, did
not refer to this testimony. It recommended that Plan 9 be permitted to go into
effect. S. Rep. No. 81-1563 (1950). In debates on the floor of the Senate, Senator
Edwin C. Johnson of Colorado, who opposed presidential designation of the
chairmen of independent regulatory commissions, quoted, in the course of his
remarks, Commissioner Buchanan’s statement about the term of the Chairman’s
office. 96 Cong. Rec. 7381 (1950). The matter was not otherwise discussed,
however, and the debate turned to other aspects of the plan. The resolution of



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           Supplemental Opinions of the Office of Legal Counsel in Volume 1


disapproval was defeated, thereby permitting Reorganization Plan 9 of 1950 to
become effective. 96 Cong. Rec. 7383 (1950).
   That Commission Buchanan’s opinion was quoted on the floor of the Senate by
an opponent of Reorganization Plan 9 is not of significance in determining the
meaning and effect of the plan. There is nothing in the legislative history to
indicate that either the committee or the Senate considered Commissioner
Buchanan’s view to be correct. Moreover, the legislative history of plans proposed
under the Reorganization Act of 1949 cannot be read as evidencing the kind of
legislative intent associated with the enactment of statutes. Under the Act, it is the
President who promulgates reorganization plans. Congress cannot change the
wording or the effect of his plans. It must either reject each plan totally by a
resolution of disapproval or acquiesce by silence. Unless a plan is disapproved,
therefore, the Congress must be deemed to have acquiesced in the President’s
intent in promulgating it.
   As noted above, substantially the same language was used in section 3 of Reor-
ganization Plans 7, 8, 9, and 10 (H.R. Doc. Nos. 81-511, 81-512, 81-513, and 81-
514) to confer on the President authority to designate the Chairmen of the
Interstate Commerce Commission (“ICC”), Federal Power Commission, Federal
Trade Commission, and Securities and Exchange Commission. Although the plan
for the ICC was disapproved by Senate Resolution 253, 81st Cong., 96 Cong. Rec.
7173, the plans for the other three commissions, including the provisions in each
plan’s section 3, became effective. Reorg. Plan No. 8 (64 Stat. 1264–65), No. 9
(64 Stat. 1265), No. 10 (64 Stat. 1265–66). Further, Budget Director Lawton’s
testimony quoted above reflects that the President’s powers were to be uniform
with respect to the chairmanship of all four of the commissions to be affected. The
intent of Reorganization Plan 9 is therefore clear.
   The foregoing history demonstrates that it was the purpose of the President, in
proposing section 3 of that plan, and the intent of the Congress in acquiescing
therein, that the Chairman, as chief administrative and executive officer of the
Commission, should be acceptable to the incumbent President. This intent was
implemented by the provisions of section 3 as is shown by a reading of the plain
language of the section and the statute it affected.
   I do not find that the failure of Reorganization Plan 9 to mention the term of the
Chairman as specified in the Federal Water Power Act of 1930 resulted in a
technical defect which prevented the plan from accomplishing its manifest
purpose. The term of the Chairman, as specified in the 1930 Act, was merely an
incident of the method of selection; the provision fixing that term therefore fell
when that method was abandoned.
   Since the Chairman was to be elected, he had to be chosen for some specified
period; in this instance, the Congress determined that this period should be the
term of membership of the commissioner elected as Chairman. The term, however,
was made expressly contingent upon the mode of selection, because the statute, in




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           Authority of the President to Reassign the Chairmanship of the FPC


providing that the Chairman should “be elected by the commission itself,”
provided in the clause immediately following: “each chairman when so elected to
act as such until the expiration of his term of office.” Pub. L. No. 71-412, 46 Stat.
at 797 (emphasis added). The term of the Commissioner elected to act as Chair-
man, therefore, was contingent solely upon the manner in which he was chosen—
i.e., election. When the manner of selection was changed from election by the
commission to presidential designation, the qualifying clause defining the
Chairman’s term became a nullity.
    If this analysis is sound, and I believe it is, then Commissioner Buchanan’s
view is erroneous not only as a matter of the general intent of section 3, but also
with regard to its technical effect. Assuming section 3 did not modify the provi-
sions of the 1930 Act fixing the term of the Chairman, those provisions continue
to apply to an elected Chairman; therefore the result envisaged by Commissioner
Buchanan cannot follow. A commissioner designated as Chairman by the
President under Plan 9 is not “elected” under the language of the 1930 Act; since
he was not elected, such a Chairman cannot rely on the 1930 definition of his term
to sustain his continued incumbency.
    The editors of the United States Code have apparently taken the view that
section 3 of Reorganization Plan 9 modified the language of the 1930 Act limiting
the Chairman’s term, even though it made no express reference to it. As published
in the Code, the law reads:

       A commission is created and established, to be known as the Federal
       Power Commission (hereinafter referred to as the “commission”)
       which shall be composed of five commissioners who shall be ap-
       pointed by the President, by and with the advice and consent of the
       Senate, one of whom shall be designated by the President as chair-
       man and shall be the principal executive officer of the commission.
       Each chairman, when so designated, shall act as such until the expi-
       ration of his term of office.

16 U.S.C. § 792 (1958). But if the view be accepted that the language of section 3
modified the language in the 1930 Act defining the Chairman’s term, I see no
reason why that effect should be confined to substituting “when so designated” for
“when so elected.” If the 1930 Act was changed at all it was changed for accom-
plishing the whole intent of the Plan; the change adopted by the editors of the
Code is not provided by either the language or the purpose of the Plan.

                                          II.

   Even if it should be assumed, contrary to the conclusion reached above, that the
provisions of the Federal Water Power Act limiting the term of the chairmanship
subsist under Reorganization Plan 9, it can be argued that the President neverthe-




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              Supplemental Opinions of the Office of Legal Counsel in Volume 1


less retains power to reassign that executive and administrative function to another
commissioner prior to the expiration of the current Chairman’s term as a member
of the Commission. It is a well-established rule that when the Congress sets forth a
limitation to the term of an executive or administrative post, but vests in the
President the power to designate the incumbent of that post, the President acquires,
as an incident of the power to appoint, the power to remove a designee prior to the
expiration of his term. Parsons v. United States, 167 U.S. 324 (1897); Myers v.
United States, 272 U.S. 52 (1926); Morgan v. TVA, 115 F.2d 990 (6th Cir. 1940),
cert. denied, 312 U.S. 701 (1941). Therefore, when the function of designating the
Chairman was conferred upon the President by section 3 of Reorganization Plan 9,
it was unnecessary to add any language to the plan expressly reserving to him
power to reassign the chairmanship prior to expiration of the term limited in the
Water Power Act. “The provision for a removal from office at pleasure was not
necessary for the exercise of that power by the President, because of the fact that
he was then regarded as being clothed with such power in any event.” Parsons,
167 U.S. at 339; see Myers, 272 U.S. at 164. The executive functions3 of the
Chairman of the Federal Power Commission, like those of the United States
Attorney in Parsons and the postmaster in Myers, are to be performed by the
President’s designee; and, as in those cases, the law presumes that the designee
will perform those functions for the specified term, unless sooner removed by the
President.
    It is open to us to argue that any other interpretation with respect to the power
of the President to relieve a presidential appointee from the performance of purely
executive functions prior to the expiration of a statutory term would raise serious
constitutional questions. Myers, 272 U.S. 52; see Wallace v. United States, 257
U.S. 541, 545 (1922); United States v. Perkins, 116 U.S. 483, 484 (1886).
    Whether the “executive function” contention set forth above can be sustained in
litigation is not clear. While it is true that the functions of the Chairman are
“executive” in the sense that he is the Commission’s chief manager, those
functions can be analogized to the administrative role of a chief judge. Under such
a view, the “executive” functions are purely incidental and subsidiary to the
performance of the Commission’s regulatory role. Relying on the rationale of
Wiener, Mr. Kuykendall could contend that in establishing the Commission as an
independent regulatory agency, and giving its Chairman a fixed term, Congress
put him beyond the pale of executive control; the independence of the commis-
sioner designated as Chairman, under this view, cannot be compromised by the
threat of presidential removal except as expressly provided by law.
    It is possible to answer this by showing that, in its non-regulatory functions, the
Federal Power Commission is not independent of executive control. Its budget

     3
       As noted above, the commissioner who is relieved by the President of the executive and adminis-
trative functions of the chairmanship continues to exercise the independent regulatory functions of a
commissioner.




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          Authority of the President to Reassign the Chairmanship of the FPC


must be submitted through the President (31 U.S.C. §§ 11, 16 (1958)); internal
management surveys may be required by the Bureau of the Budget under 31
U.S.C. § 18 (1958) (see General Government Matters Appropriation Act, 1961,
Pub. L. No. 86-642, 74 Stat. 473, 475 (1960)); and Dean Landis has pointed out
that even proposed legislation to be submitted by the independent agencies must
be cleared through the Bureau of the Budget. Report on Regulatory Agencies to
the President-Elect at 31. Moreover, the Commission’s subordinate employees are
subject to the Civil Service laws and regulations (16 U.S.C. § 793 (1958)), which
are promulgated by the President under the Civil Service Act (5 U.S.C. § 631
(1958); see Exec. Order No. 10577, 3 C.F.R. 218 (1954–1958), 19 Fed. Reg. 7521
(1954)). Apart from these express statutory powers, the President has some
measure of responsibility for the regulatory agencies under his constitutional duty
to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. While
the theory of the independent regulatory commission requires that its administra-
tion of the regulatory laws should be independent of executive control, the laws
administered by the Chairman in his executive capacity are not regulatory at all—
they are substantially the same as those administered by the head of any depart-
ment or office. The chairmanship, therefore, is not an office which is independent
in the way that the office of commissioner is independent. The threat of presiden-
tial removal does not compromise the chairmanship of the Federal Power Com-
mission any more than it compromises the chairmanships of the other regulatory
agencies.

                                         III.

   For the foregoing reasons I conclude that the President has power to remove
Mr. Kuykendall from the chairmanship of the Commission, and to reassign the
chairmanship to another commissioner. But in arriving at this conclusion, it should
be noted that Mr. Kuykendall can find respectable support for the contrary
proposition. He would rely upon Commissioner Buchanan’s statement, the
comment in Dean Landis’s report, and the interpretation of the effect of Reorgani-
zation Plan 9 by the editors of the U.S. Code. The latter, under 1 U.S.C. § 204(a)
(1958), is prime facie, but not conclusive, evidence of the law. Therefore, the
question is not entirely free from doubt, and it may well be preferable to seek a
legislative solution under the current reorganization plan proposals rather than run
the risks of litigation.

                                          NICHOLAS deB. KATZENBACH
                                             Assistant Attorney General
                                              Office of Legal Counsel




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