March 26, 1984
I have signed today H.R. 2809, a bill to establish a National Fish and Wildlife Foundation. H.R. 2809 would establish the National Fish and Wildlife Foundation to encourage and administer donations of real or personal property, in connection with U.S. Fish and Wildlife Service programs and other activities to conserve fish, wildlife, and plant resources of the United States. The Foundation's governing board of nine directors would be appointed by the Secretary of the Interior. H.R. 2809 would also authorize the Attorney General to sue the Foundation if it should appear that the Foundation's actions are inconsistent with the purposes of the act.
I have signed H.R. 2809 because it promotes important conservation and preservation goals and encourages private sector initiative to aid us in attaining those goals. I must note my serious reservations about the approach taken in the bill. Before this bill was passed, the Department of Justice advised the Congress that the bill's provisions, taken together, create ambiguity about whether the Foundation is to be a private entity or an establishment within the executive branch. The statements in the bill to the effect that the Foundation shall be a nonprofit, charitable corporation and that it shall not be an agency or establishment of the United States are contradicted by the facts that the Foundation is established by Congress, funded by Congress, and endowed with the sole purpose of assisting and benefiting a Federal agency, the U.S. Fish and Wildlife Service; its property is made exempt from condemnation by State and local governments; and its Directors are all appointed by the Secretary of the Interior. Moreover, the bill exempts the Foundation from certain provisions of the United States Code which would be clearly inapplicable if the Foundation were truly nongovernmental.
Entities which are neither clearly governmental nor clearly private should not be created. The Supreme Court has recently warned against constitutional innovations merely because they seem to be expedient. Establishment of the Foundation under the terms of the bill is an unwise and dangerous precedent. I have, therefore, given serious consideration to vetoing the bill even though I support its laudable objectives. I have not done so because the Attorney General has advised that the bill can be given a constitutional construction.
I have been advised by the Attorney General that the governmental character of the Foundation predominates. Under the Supreme Court's cases, the character of an agency will be determined by its functions, not its label, Buckley v. Valeo, 424 U.S. 1 (1976). On this basis, the Foundation must be regarded as an establishment within the executive branch. The Directors of the Foundation, therefore, will be removable at the discretion of the Secretary of the Interior, because they are appointed by him and they exercise no powers which insulate them from removal at will. Accordingly, I will direct the Secretary to ensure compliance by the Directors of the Foundation with their statutory purposes through the exercise of the removal power. It will not be necessary to enforce compliance through suit by the Attorney General, an aspect of the bill which raises significant constitutional issues. In addition, I have directed the Attorney General and the Secretary to examine the other provisions of the bill to determine how they should be given effect consistent with constitutional principles.
Note: As enacted, H.R. 2809 is Public Law 98 - 244, approved March 26.