November 25, 1985
I have today signed H.R. 3038, a bill providing for appropriations for the Department of Housing and Urban Development and several independent agencies, including the Federal Emergency Management Agency (FEMA).
This bill would also authorize FEMA, through a new "national board,'' to oversee an emergency food and shelter program. I am deeply concerned about the membership of the Board. Under this bill the Board is to be composed of seven members who would be officers of the executive branch because the Board will perform executive functions. If read literally, the bill would permit six private organizations to appoint members of the Board, in violation of the appointments clause of the Constitution (Article II, section 2, clause 2). In order to avoid this constitutional infirmity, I direct the Director of FEMA to construe this provision as granting him complete discretionary authority to determine who should be appointed to the national board. The organizations mentioned in the bill may make recommendations, but only the Director, as the ``head of a department,'' id., is authorized to appoint members to the Board.
The bill also provides, in section 413, that ``[n]o part of any appropriation contained in this Act shall be available to implement, administer, or enforce any regulation which has been disapproved pursuant to a resolution of disapproval duly adopted in accordance with the applicable law of the United States.'' The ``applicable law of the United States'' includes, of course, the Constitution and the decision of the Supreme Court in INS v. Chadha. Under the Constitution and that decision, the ``resolution of disapproval'' referred to in section 413 must be a joint resolution presented to the President for approval or disapproval.
Note: H.R. 3038, approved November 25, was assigned Public Law No. 99 - 160.