Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion

• Decision Date: 15 June 1999
• Docket Number: 99-13
• Citation: 23 Op. O.L.C. 126
• Parties: Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

23 Op. O.L.C. 126

Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion

No. 99-13

United States Department of Justice

June 15, 1999

RANDOLPH D. MOSS Acting Assistant Attorney General Office of Legal Counsel.

Authority of the United States to Enter Settlements Limiting the Future Exercise of Executive Branch Discretion

The Attorney General may enter into settlements that would limit the future exercise of executive branch discretion when that discretion has been conferred upon the executive branch pursuant to statute and there exists no independent statutory limitation on the authority of the executive branch to so limit the future exercise of that discretion.

The Attorney General's power to enter into settlements that would limit the future exercise of discretion that has been conferred upon the executive branch directly by the Constitution is constrained by the very constitutional provisions that vest discretionary authority in the President and therefore necessarily preclude the President from subjecting the exercise of that discretion to the control of the other party to a settlement or to judicial enforcement.

Article III of the Constitution does not preclude the executive branch from entering into judicially enforceable, discretion limiting settlements as a general matter or bar federal courts from entering consent decrees that limit executive branch discretion whenever such decrees purport to provide broader relief than a court could have awarded pursuant to an ordinary injunction. Article III limitations may arise however, when, for example, the terms of the governmental promise are too amorphous to be susceptible to Article III federal judicial enforcement.

Although there may be sound policy reasons to reaffirm Attorney General Meese's 1986 policy regulating the use of discretion limiting settlements, the concerns that led to its adoption do not, in general, amount to legally binding limitations on the scope of the executive branch's power to settle litigation in a manner that may limit the future exercise of executive branch discretion.

MEMORANDUM OPINION FOR THE ASSOCIATE ATTORNEY GENERAL

This memorandum addresses the degree to which federal law places restrictions on the authority of the United States to enter into litigation settlements that purport to limit the exercise of executive branch discretion.^[1] It focuses primarily on the concerns about the legality of discretion-limiting settlements that led to the adoption of Attorney General Meese's 1986 policy regulating the use of such settlements by attorneys acting under the supervision of the Attorney General. In doing so, the memorandum addresses a central legal tenet of Attorney General Meese's policy: that it is unconstitutional for the courts to enter consent decrees limiting the exercise of executive branch discretion where the courts would not have had the power to order such relief had the matter been litigated.

Attorney General Meese issued the 1986 policy on consent decrees and settlement agreements pursuant to his litigation and settlement authority. The policy [ 127] requires the Attorney General, the Deputy Attorney General or the Associate Attorney General, to approve proposed consent decrees or settlement agreements that:

(1) commit the executive branch to expend unappropriated funds or seek appropriations from Congress;

(2) commit the executive branch to promulgate, amend, or revise regulations; or

(3) divest discretionary power granted by Congress or the Constitution to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties.^[2]

Determining whether a settlement of the type identified in the Meese Policy conforms to federal law requires a close analysis of the relevant statutory and constitutional provisions. A context-specific inquiry is beyond the scope of this memorandum, however, and thus our intent is to set forth the basic approach that should guide an evaluation of the legal validity of executive branch settlements that purport to limit the exercise of executive branch discretion.^[3]

Our analysis proceeds with a summary of our legal conclusions. We then outline our understanding of the basic parameters of the Meese Policy and the types of settlements to which it is directed. Next, we set forth the general legal principles that establish the background against which the types of settlements identified in the Meese Policy must be evaluated. Finally, we apply the general legal principles to the types of settlements to which the Meese Policy is directed.

I. Summary of Conclusions

Due to the length of this memorandum, it is useful to state our conclusions in summary form at the outset. In general, we conclude that the Attorney General is free to enter into settlements that would limit the future exercise of executive branch discretion when that discretion has been conferred upon the executive branch pursuant to statute and there exists no independent statutory limitation on [ 128] the authority of the executive branch to so limit the future exercise of that discretion. Significant general statutory limitations that, among others, must be considered in evaluating the lawfulness of possible discretion-limiting settlement terms are those contained in the Administrative Procedure Act, which sets forth restrictions on the manner in which the executive branch may adopt and revise regulatory rules and procedures, and the Anti-Deficiency Act, which restricts the authority of executive branch actors to incur financial obligations on behalf of the United States. With respect to settlements that would limit the future exercise of discretion that has been conferred upon the executive branch directly by the Constitution, such as the discretion that is conferred upon the President by the Pardon Power or the Recommendations Clause, the scope of the Attorney General's settlement power is constrained by the very constitutional provisions that vest discretionary authority in the President and therefore necessarily preclude the President from subjecting the exercise of that discretion to the control of the other party to a settlement or to judicial enforcement.

In addition, we conclude that Article III may place independent constitutional limitations on the power of federal courts to enforce settlements that the Attorney General otherwise would have the legal authority to enter. These limitations may arise when, for example, the terms of the governmental promise are too amorphous to be susceptible to Article III federal judicial enforcement. We do not believe, however that Article III precludes the executive branch from entering into judicially enforceable discretion limiting settlements as a general matter or that Article III bars federal courts from entering consent decrees that limit executive branch discretion whenever such decrees purport to provide broader relief than a court could have awarded pursuant to an ordinary injunction.

From these general conclusions, it is possible to set forth in summary form the main determinations that we have reached regarding the extent to which federal law would preclude discretion-limiting settlements of the type that are subject to the requirements of the Meese Policy.

First, the Meese Policy in sections 11(A)(2) and 11(B)(2) raises concerns about the authority of the executive branch to enter into settlements that would commit the United States to expend unappropriated funds or seek appropriations from Congress. See Meese Policy at 3-4. We conclude that there is no per se constitutional bar against executive branch settlements that obligate the future expenditure of unappropriated funds. As the Antideficiency Act itself makes clear, Congress may authorize the executive branch to obligate funds in advance of appropriations. Thus, settlements that incur such obligations are permissible so long as there is statutory authority, whether explicit or implicit, for the assumption of the future financial obligation. Implicit authority to assume such obligations should not be readily inferred from general statutory authority, however, nor should the interest in settling litigation be thought in and of itself, at least as a general matter, to justify a construction of general statutory authority that would suffice to permit [ 129] such an obligation to be incurred. We also conclude that the Constitution does limit the ability of the executive branch to settle litigation on terms that would require executive branch officers to seek appropriations from Congress. This limitation arises primarily from the Recommendations Clause.

Second, the Meese Policy in sections 11(A)(1) and 11(B)(1) raises concerns about the authority of the executive branch to enter into settlements that would convert the otherwise discretionary authority of executive branch agencies to promulgate, amend, or revise regulations into a mandatory regulatory duty. See Meese Policy at 3. We conclude that there is no per se constitutional prohibition against such settlements, and that, in the main, the executive branch's authority to enter into settlements that impose such limitations will be determined by the statutes that govern the executive branch agency on whose behalf the settlement would be entered. We emphasize that the Administrative Procedure Act generally limits the manner by which executive branch agencies may adopt, amend, or revise regulatory rules and procedures, and thus that it will be important to ensure that the terms of any settlement limiting the otherwise discretionary regulatory authority of an executive branch agency conform to the terms of that Act.

Third, the Meese Policy in sections 11(A)(3) and 11(...