Unconstitutional limbo: why the Smithsonian Institution may violate the separation of powers doctrine
| Autor | Jaclyn B Kurin |
| Cargo | Juris Doctor at George Mason University School of Law (Arlington, United States of America) |
| Páginas | 35-60 |
Licenciado sob uma Licença Creative Commons
Licensed under Creative Commons
35
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 3, p. 35-60, set./dez. 2017.
Como citar esse artigo/How to cite this article: KURIN, Jaclyn. Unconstitutional limbo: why the Smithsonian Institution may vio-
late the separation of powers doctrine. Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 3. p. 35-60, set./dez. 2017.
DOI: 10.5380/rinc.v4i3.50286.
*Juris Doctor at George Mason University School of Law (Arlington, United States of America). E-mail: jbkurin@gmail.com.
Revista de Investigações Constitucionais
ISSN 2359-5639
DOI: 10.5380/rinc.v4i3.50286
Unconstitutional limbo: why the Smithsonian Institution
may violate the separation of powers doctrine
Limbo inconstitucional: por que a Instituição Smithsonian
pode violar a doutrina da separação dos poderes
JACLYN KURIN*
George Mason University School of Law (United States of America)
jbkurin@gmail.com
Recebido/Received: 21.01.2017 / January 1st, 2017
Aprovado/Approved: 20.08.2017 / August 20th, 2017
Abstract
With the opening of the National Museum of Afri-
can-American History, people are once again coming in
mass to the National Mall to see the Smithsonian’s new-
est edition. And just about everyone in America knows of
the Smithsonian--its name recognition is well over 90%
in public surveys. Each year 30 million people visit the
Smithsonian museums along the National Mall in Wash-
ington, D.C., the National Air and Space Museum, the
National Museum of American History, and the Nation-
al Museum of NaturalHistory among them. But is that
about to change? The Smithsonian is an odd government
entity. Despite its private, non-protstatus, the Smithso-
nian still receives federal funds, is chartered by an Act
of Congress, employs a majority civil service sta, and
operates through a board overseen by the Chief Justice
of the Supreme Court, the Vice President, and legislators
from the United States Senate and Congress. As such, the
Smithsonian has been deemed a governmental entity is
some instances and a private entity in others. However,
with a new bill being introduced to Congress and re-
cent Supreme Court precedent regarding government
Resumo
Com a abertura do Museu Nacional de História Afro-Ame-
ricana, as pessoas estão novamente vindo em massa ao
National Mall para ver a mais nova edição do Smithsonian.
E quase todos americanos conhecem o Smithsonian – de
modo que seu reconhecimento ultrapassa os 90% nas pes-
quisas públicas. Todos os anos, 30 milhões de pessoas visi-
tam os museus Smithsonian ao longo do National Mall em
Washington, D.C., o Museu Nacional do Ar e do Espaço, o
Museu Nacional de História Americana e o Museu Nacional
de História Natural. Mas algo pode mudar? O Smithsonian
é uma peculiar entidade governamental. Apesar de sua na-
tureza privada, sem ns lucrativos, o Smithsonian recebe
recursos federais, e amparado por uma lei do Congresso, a
maioria do pessoal empregado é agente público. Seu fun-
cionamento é supervisionado pelo Presidente da Suprema
Corte, pelo Vice-Presidente, e pelos parlamentares do Sena-
do e do Congresso. Deste modo, o Smithsonian ora é consi-
derado como entidade governamental, ora como entidade
privada. No entanto, essa indecisão pode mudar, tendo em
vista um Projeto de Lei apresentado no Congresso e novo
precedente da Suprema Corte. Neste esteio, o Smithsonian
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 3, p. 35-60, set./dez. 2017.
JACLYN KURIN
36
instrumentalities, the Smithsonian may face dissolution
of its current supervisory board less it run the risk of vio-
lating the separation of powers doctrine.
Keywords: unconstitucional; separation of powers;
Smithsonian Institution; American Administrative Law;
governmental entity.
pode ter dissolvido seu atual conselho de supervisão, ve-
redito que gera menos impacto na doutrina da separação
dos poderes.
Palavras-chave: inconstitucionalidade; separação de po-
deres; Instituição Smithsonian; Direito Administrativo nor-
teamericano; entidade governamental.
CONTENTS
1. Introduction; 2. Establishment and description of the Smithsonian; 3. The Smithsonian’s legal sta-
tus; 4. Other government instrumentalities; 5. Analysis: does the Smithsonian violate the separation
of powers; 5.1. The Formalist Objection; 5.2. From Exercising Executive and Legislative Functions to
Aecting Private Rights; 5.3. Ineligibility of Appointment; 6. Conclusion; 7. References.
1. INTRODUCTION
In July 2016, Congresswoman Eleanor Holmes Norton of the District of Colum-
bia introduced Smithsonian Modernization Act that if passed, would change the com-
position of Smithsonian Institution’s governing board—the Board of Regents— and
increase transparency of internal operations and deliberations. Norton justied the
legislation, saying there needs to be greater transparency and accountability of the
Smithsonian’s operations given that it expends taxpayer dollars. Norton was motivated
to introduce the bill because of “[t]he recent history of mismanagement at the Smith-
sonian” under the former Secretary of the Smithsonian, Lawrence Small. Norton explai-
ned that the Board of Regents have signicant “duciary responsibility[ies]” and the
Smithsonian being “supported primarily by federal funds must be accountable to the
American people.”1
But for Norton, transparency is not enough; the composition of the Board of
Regents also needs to be reformed. Norton thinks Board of Regents should “be compri-
sed entirely of private citizens, who can assist with fundraising, to replace highly-placed
public ocials currently serving on the board.”2 Norton’s fundraising complaint seems
largely supercial as the
Smithsonian raises more $200 million in private funds annually. Nevertheless,
Norton’s bill draws attention to the unique high-ranking U.S. ocials who serve on the
Board of Regents--the Vice President of the United States, the Chief Justice of the Supre-
me Court, three members of the U.S. Senate, three members of the House of Represen-
tatives, and nine citizen members.
1 Norton Introduces Bill to Increase Transparency & Accountability at the Smithsonian Institution, NortonHouse.Gov (July
29, 2015). Avaiable at:
-and-accountability-at>.
2 Id.; Smithsonian Modernization Act of 2015.
Unconstitutional limbo: why the Smithsonian Institution may violate the separation of powers doctrine
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Although some legal scholars have in the past drawn attention to the unique
composition of the Smithsonian’s governing board, recent decisions regarding corpo-
rate agencies that constitute government instrumentalities bring to bear special atten-
tion in considering possible separation of powers problems for the Smithsonian espe-
cially in the context of a formalist analysis.
2. ESTABLISHMENT AND DESCRIPTION OF THE SMITHSONIAN
In 1826, James Smithson wrote his will in London. Smithson was the illegitimate
son of an English aristocrat who made a fortune in investments in the early industrial
revolution and also inherited money from his mother.3 In his will, he left a bequest
to his nephew, but noted that if his nephew died without leaving an heir, his fortune
would go “to the United States of America, to found at Washington, under the name of
the Smithsonian Institution, an Establishment for the increase & diusion of knowledge
among men.”4
Smithson died in 1829, and it was only a few years later that ocials in the U.S.
were informed of the bequest, which amounted to about £100,000 or about $500,000,
which then was a large sum of money.5 The U.S. Congress debated for some time whe-
ther or not to accept the funds.6 Opponents pointed to the fact that accepting the
funds and founding an institution as Smithson had specied was not something the
Federal government had the constitutional power to do.7 Supporters ingeniously ar-
gued that the U.S. could accept the bequest and establish the institution under the
powers granted Congress of exclusive legislation over the District of Columbia,8 where
the Smithsonian would be established—even though its purpose would be for “among
men” presumably everywhere.9
Congress passed a bill to acquire the Smithson bequest from England in 1835,
and three years later, the funds came to the U.S. and were deposited in the U.S. Treasury.
Several years of debate ensued in Congress with alternative proposals for what the Smi-
thsonian should be and do—with some proposing a national library, others a national
3 SMITHSONIAN INSTITUTION. General History. Smithsonian Archives. Available at:
-history>.
4 CURRIE, David P. The Smithsonian. The University of Chicago Law Review, Chicago, vol. 70, n. 1, p. 65-71, jan./mar. 2003.
5 SMITHSONIAN INSTITUTION. General History. Smithsonian Archives. Available at:
-history>.
6 SMITHSONIAN INSTITUTION. General History. Smithsonian Archives. Available at:
-history>.
7 SMITHSONIAN INSTITUTION. General History. Smithsonian Archives. Available at:
-history>.
8 UNITED STATES. Constitution art. I, § 8, cl. 17 (exercise exclusive Legislation in all Cases whatsoever, over such District).
9 SMITHSONIAN INSTITUTION. General History. Smithsonian Archives. Available at:
-history>.
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 3, p. 35-60, set./dez. 2017.
JACLYN KURIN
38
university, an astrophysical observatory, a museum, and an agricultural research center.
Finally, in 1846, Congress passed and President Polk signed into law the statue esta-
blishing the Smithsonian. Sections of that act are reproduced below:
AN ACT TO ESTABLISH THE “SMITHSONIAN INSTITUTION” FOR THE INCREASE AND DIFFU-
SION OF KNOWLEDGE AMONG MEN.
James Smithson, esquire, of London, in the Kingdom of Great Britain, having by his last
will and testament given the whole of his property to the United States of America, to
found at Washington, under the name of the “Smithsonian Institution,” an establishment
for the increase and diusion of knowledge among men; and the United States having,
by an act of Congress, received said property and accepted said trust; Therefore, For the
faithful execution of said trust, according to the will of the liberal and enlightened donor;
Be it Enacted By the Senate and House of Representatives of the United States of America
in Congress assembled. That the President and Vice-President of the United States, the
Secretary of State, the Secretary of the Treasury, the Secretary of War, the Secretary of the
Navy, the Postmaster-General, the Attorney General, the Chief Justice, and the Commis-
sioner of the Patent
Oce of the United States; and the mayor of the city of Washington, during the time for
which they shall hold their respective oces, and such other persons as they may elect
honorary members, be, and they are hereby constituted, an “establishment,” by the name
of the “Smithsonian Institution,” for the increase and diusion of knowledge among
men; and by that name shall be known and have perpetual succession, with the powers,
limitations, and restrictions, hereinafter contained, and no other. . .
And be it further enacted, That the business of the said Institution shall be conducted at
the City of Washington by a board of regents, by the name of regents of the “Smithsonian
Institution,” to be composed of the Vice-President of the United States, the Chief Justice
of the United States, and the Mayor of the City of Washington, during the time for which
they shall hold their respective oces; three members of the Senate, and three members
of the House of Representatives; together with six other persons, other than members of
Congress, two of whom shall be members of the national institute in the City of Washing-
ton, and resident in the said city; and the other four thereof shall be inhabitants of States,
and no two of them of the same State. And the regents to be selected as aforesaid shall
be appointed immediately after the passage of this act-the members of the Senate by
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the President thereof, the members of the House by the Speaker thereof, and the six other
persons by Joint resolution of the Senate and House of Representatives...
And the said Regents shall meet in the City of Washington, on the rst Monday of Sep-
tember next after the passage of this act, and organize by the election of one of their
number as chancellor, who shall be the presiding ocer of said board of regents, by the
name of the Chancellor of the “Smithsonian Institution,” and a suitable person as secre-
tary of said Institution, who shall also be the secretary of said board of regents; . . .
And be it further enacted, That, in proportion as suitable arrangements can be made
for their reception, all objects of art and of foreign and curious research, and all objects
of natural history, plants, and geological and mineralogical specimens, belonging, or
hereafter to belong, to the United States, which may be in the city of Washington, in
whosesoever custody the same may be, shall be delivered to such persons as may be
authorized by the board of regents to receive them, and shall be arranged in such order,
and so classed, as best [to] facilitate the examination and study of them, in the building
so as aforesaid to be erected for the institution; . . .
And be it further enacted, That the secretary of the board of regents shall take charge of
the building and property of said institution, and shall, under their direction, make a fair
and accurate record of all their proceedings, to be preserved in said institution; and the
said secretary shall also discharge the duties of Librarian and of keeper of the museum,
and may, with the consent of the board of regents, employ assistants; and the said o-
cers shall receive for their services such sums as may be allowed by the board of regents,
to be paid semi-annually on the rst day of January and July; and the said ocers shall
be removable by the board of regents, whenever, in their judgment, the interests of the
institution require any of the said ocers to be changed.10
Of note, the Smithsonian “Establishment” of which the President of the Uni-
ted States serves as the “presiding ocer” has only rarely met – formally nine times in
all, and for the last time in 1877.11 The business of the Smithsonian is conducted by
the Board of Regents. The founding act charged the Regents with the building of the
10 UNITED STATES. An Act to Establish the Smithsonian Institution for the Increase & Diusion of Knowledge Among Men,
9 Stat 102 (1846). Available at: .
11 Conference on the Future of the Smithsonian Institution is Held, Smithsonian Archives (1927). Available at:
si.edu/collections/siris_sic_11657>. GOODE, George Brown (Ed.). The Smithsonian Institution, 1846-1896, The History of its
First Half Century. New York: De Vinne Press, 1897.
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 3, p. 35-60, set./dez. 2017.
JACLYN KURIN
40
institution’s headquarters, now popularly known as the Castle. The Chancellor was in
the rst years of the Smithsonian the Vice President of the United States, but after a
series of deaths, the oce became, by custom occupied by the Chief Justice. The Se-
cretary served as the executive ocer of the Smithsonian, selected by the Regents, but
not on the board. In its early years, the Smithsonian’s budget came entirely from the
funds left by Smithson. In the mid-1850s the Smithsonian received its rst appropriated
budget from the federal government. Given that the position of Mayor of the District
of Columbia was superseded by the Governor in 1871 and that oce abolished after
1874, the position was dropped from the Board of Regents in a 1894 amendment to the
Smithsonian statute. In 1970, the statute was again amended so that nine, rather than
six citizens served on the board.
Currently, the Smithsonian is a complex museum, research and educational
organization.
It has grown to include 19 museums, most but not all of them authorized by
Congress. It receives $840 million in annual appropriations from Congress via the Inte-
rior and Related Agencies Subcommittee in the House and Appropriations Subcommit-
tee on the Interior, Environment and Related Agencies Committee in the Senate. It also
gets grants from government agencies like NASA, US AID, and the Department of Edu-
cation. It receives gifts from donors, foundations and corporate sponsors amounting to
over $200 million. It runs businesses like Smithsonian magazine and a cable television
channel that generate more than $150 million in revenue annually. The funds that came
with the Smithson bequest have grown to an endowment of over $1 billion. Of its 6,500
employees, over 4,000 are federal employees paid with annually appropriate funds, the
others are known as “trust-fund” employees, and they are paid with nonfederal, private
funds and earned revenue.12
The Smithsonian’s Board of Regents meets regularly, several times a year. Its
powers include electing the Secretary, approving the submission of the federal budget
to Congress, approving annual trust fund spending and the investment of the Smithso-
nian endowment, accepting gifts, designating names of galleries and museums, selec-
ting sites of new museums, approving strategic and other plans, appointing members
of museum boards, acquiring properties, and exercising other governance functions.
All Regents serve as principal ocers as they are entitled to one vote.13-14 Approval or
disproval of any action is done by majority vote.16
12 SMITHSONIAN INSTITUTION. Smithsonian Institution FY 2016 Budget Justication to Congress. Available at:
www.si.edu/content/pdf/about/fy2016-budgetrequest.pdf>.
13 See UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225, 1240
(2015) (Alito, J. concurring) (“ever multimember body heading agency must also be a principal ocer [because] every member
could cast the deciding vote with a particular decision.”); Bylaws of the Board of Regents §2.06 (2014) 16 Bylaws of the Board
of Regents §2.06 (2014).
14 20 U.S.C. § 44; Smithsonian Inst. Bylaws of the Board of Regents §2.09 (2014).
Unconstitutional limbo: why the Smithsonian Institution may violate the separation of powers doctrine
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Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 3, p. 35-60, set./dez. 2017.
Regents may abstain from voting on an action. Eight members are required for
quorum.17
3. THE SMITHSONIAN’S LEGAL STATUS
Congress, the Smithsonian itself, the Department of Justice Oce of Legal Cou-
nsel 15 and even the courts have been hard pressed to take on the challenge of dening
the Smithsonian exact legal status; for doing so can pose a nightmare in considering
where in and out of the government it belongs, and whether or not its status violates
the separation of powers.16
In 1927, former U.S. President Howard Taft, then serving as Chief Justice and
also Smithsonian Chancellor, declared, “the Smithsonian Institution is not, and has ne-
ver been considered a government bureau. It is a private institution under the guar-
dianship of the Government.”17
Taft’s argument was reframed by the Oce of Legal Counsel in 1976, which
opined:
The Smithsonian is an establishment created by Federal statutes in order to fulll a basic
trust obligation originating in the will of James Smithson. But it is so uniquely distincti-
ve a fusion of public and private cooperation and of joint action by all three traditional
branches of our government that it seems fairly evident that the Congress could not have
meant it to be treated as a traditional agency.18
The Oce of Legal Counsel considered whether the Smithsonian was in the exe-
cutive branch, but although the Vice President is a member of the Board of Regents, he
is ex ocio and not appointed to that post by the President and thus “under no executi-
ve power of control or appointment.” If the Smithsonian were an “executive agency” the
fact that fteen of its seventeen members – the three senators, three representatives
and nine citizens – were appointed by Congress would raise serious separation of
15 UNITED STATES. Memorandum for the Director, Oce of Personnel Management from Assistant Attorney General Ulman,
3 Op. O.L.C. 274, 277 (1979) (“The Smithsonian is sui generis: a fusion of a private and public body and a joint instrument, in a
sense, of all three branches of the Government.”)
16 COLUMBIA. Dong v. Smithsonian Inst. United States Court of Appeals, District of Columbia Circuit. 125 F.3d 877, 877 (D.C.
Cir. 1997) 125 F.3d 877, 879. (“Indeed, if the Smithsonian were to wield executive powers, the method by which its Regents are
appointed would appear to violate the Constitution’s separation of powers principles.”).
17 SMITHSONIAN INSTITUTION. Memorandum to Peter Powers, General Counsel, the Smithsonian Institution from Deputy
Assistant Attorney General Ulman, 19 feb. 1976.
18 SMITHSONIAN INSTITUTION. Memorandum to Peter Powers, General Counsel, the Smithsonian Institution from Deputy
Assistant Attorney General Ulman, 19 feb. 1976.
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JACLYN KURIN
42
powers issues since the Congress cannot appoint executive ocers of the U.S. under
Article II, Section II of the Constitution.
The Oce of Legal Counsel also opined that the Smithsonian, given its func-
tion, could not be considered an “independent regulatory agency,” and “not the sort of
instrumentality of the United States which the Congress intended to include” as either
“administrative,” or “executive,” or “regulatory” at least in the context of particular laws.19
The Oce of Legal Counsel in 1976 wrote that “it could be argued that the Smithso-
nian is ... an arm of the Congress itself,” but has failed to take up or buttress that argu-
ment.20 The best the Oce of Legal Counsel could come up with is that the “bequest
was accepted and has since been treated by the United States as a solemn testamen-
tary trust independent of any traditional branch or role of government but operated as
a responsibility of the Nation.”21 In another opinion, the Oce of Legal Counsel wrote,
“The Smithsonian is sui generis: a fusion of a private and public body and a joint instru-
ment, in a sense, of all three branches of the Government.”22 Thus, in the mindset of one
analyst, the practice of Constitutional avoidance about the Smithsonian’s status had
been strictly abided.23
This practice has generally resulted in various opinions from the Oce of Legal
Counsel treating the Smithsonian’s legal status in the context of particular legislation.24
The U.S.
Attorney General has found that the Smithsonian enjoys sovereign immunity
from state and local regulation in some instances because the Smithsonian is “so clo-
sely connected” to the federal government.25 The Smithsonian has federal sovereign
immunity for some lawsuits, except those that Congress has explicitly authorized, whi-
ch include FTCA, Copyright Act, the Tucker Act for contract, and discrimination under
Title VII of the Civil Rights Act.26 In O’Rourke, the Court found the FTCA did apply to the
19 SMITHSONIAN INSTITUTION. Memorandum to Peter Powers, General Counsel, the Smithsonian Institution from Deputy
Assistant Attorney General Ulman, 19 feb. 1976.
20 SMITHSONIAN INSTITUTION. Memorandum to Peter Powers, General Counsel, the Smithsonian Institution from Deputy
Assistant Attorney General Ulman, 19 feb. 1976.
21 SMITHSONIAN INSTITUTION. Memorandum to Peter Powers, General Counsel, the Smithsonian Institution from Deputy
Assistant Attorney General Ulman, 19 feb. 1976.
22 SMITHSONIAN INSTITUTION. Memorandum for the Director, Oce of Personnel Management from Assistant Attorney Gene-
ral Ulman. Opinion of the Oce of Legal Concern, Washington, vol. 3, 1979.
23 See, e.g., UNITED STATES. O’Rourke v. Smithsonian Inst. Press, 399 F.3d 113, 114 (2d Cir. 2005); SMITHSONIAN INSTITUTION.
Memorandum to Peter Powers, General Counsel, the Smithsonian Institution from Deputy Assistant Attorney General Ulman,
19 feb. 1976.
24 See KMIEC, Douglas W. The Status of the Smithsonian Institution Under the Federal Property and Administrative Services
Act. Opinion of the Oce of Legal Concern, Washington, vol. 12, 122-127, june 1988. Available at:
le/24096/download>.
25 See SMITHSONIAN INSTITUTION. Memorandum to Assistant General Counsel, the Smithsonian Institution from Deputy
Assistant Attorney General Moss, 25 apr. 1997.
26 SMITHSONIAN INSTITUTION. Legal Nature of the Smithsonian. Available at: .
Unconstitutional limbo: why the Smithsonian Institution may violate the separation of powers doctrine
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Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 3, p. 35-60, set./dez. 2017.
Smithsonian because the denition of a federal agency “includes ... independent esta-
blishments of the United States.27
In Cotton v. Adams, the court found the Smithsonian was subject to FOIA be-
cause Congress had amended the denition of a qualifying agency “to include those
entities which may not be considered agencies under section 551(1) of Title 5, U.S.Code,
but which perform governmental functions and control information of interest to the
public.”28 The court stated that “The Smithsonian is subject to the FOIA because it per-
forms governmental functions as a center of scholarship and national museum respon-
sible for the safekeeping and maintenance of national treasures.” The court also found
other factors indicative FOIA’s applicability, including that “the Smithsonian receives
federal funds for many of its operations, that it is chartered by an Act of Congress, and
that it has a majority of civil service employees. Furthermore, the Smithsonian receives
the benets of agency status by virtue of the fact that it receives representation from
the United States Attorney, absolute governmental immunity in libel suits, and other
benets in property transfers.”29
In Rivera v. Heyman, the district court dismissed the plainti’s claim that the
Smithsonian had discriminated against him in violation of the Rehabilitation Act of
1973. The court, ruled that such lawsuits did not apply to the Smithsonian because at
that time the Rehabilitation Act incorporated the Civil Rights Act’s limited sovereign
immunity waiver provision.30 Under that provision, suits against the federal govern-
ment extended only to “executive agencies as dened in Section 105 of title 5” or those
listed in the Act.31 In Rivera the court rule against the plainti because the Smithsonian
was not a listed entity nor was the Smithsonian an “executive” agency because it lacked
characteristics of being an establishment in the executive branch. Specically, the Smi-
thsonian didn’t report to the President or perform an executive activity.32-33-34
27 UNITED STATES. O’Rourke v. Smithsonian Inst. Press, 399 F.3d 113, 114 (2d Cir. 2005) The Court of Federal Claims held that
the Smithsonian Institution fell within term “United States,” for purposes granting the Court exclusive jurisdiction over copyright
infringement because – more than two-thirds of Smithsonian’s workforce were federal employees, Congress appropriated funds
expressly for Smithsonian’s preparation and publication of books, judgments against Smithsonian were paid from United States
Treasury, Smithsonian was represented by federal attorneys, and persons responsible for Smithsonian’s operations were either
United States ocials of highest rank or Congressional appointees.
28 COLUMBIA. Cotton v. Adams. District Court for the District of Columbia - June 26. 1992. 798 F. Supp. 22, 24.
29 COLUMBIA. Cotton v. Adams. District Court for the District of Columbia - June 26. 1992. 798 F. Supp. 22, 24.
30 NEW YORK. Rivera v. Heyman. District Court for the Southern District of New York - 982 F. Supp. 932. October 7, 1997, 982 F.
Supp. 932 (S.D.N.Y. 1997), a’d in part, rev’d in part, 157 F.3d 101 (2d Cir. 1998).
31 NEW YORK. Rivera v. Heyman. District Court for the Southern District of New York - 982 F. Supp. 932. October 7, 1997, 982 F.
Supp. 932 (S.D.N.Y. 1997), a’d in part, rev’d in part, 157 F.3d 101 (2d Cir. 1998).
32 NEW YORK. Rivera v. Heyman. District Court for the Southern District of New York - 982 F. Supp. 932. October 7, 1997, 982 F.
Supp. 932 (S.D.N.Y. 1997), a’d in part, rev’d in part, 157 F.3d 101 (2d Cir. 1998).
33 42 USC § 2000e-16(a)
34 29 U.S.C. § 633a
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JACLYN KURIN
44
However, the Smithsonian became subject to suits under Title VII and Rehabi-
litation Act when Congress amended the Workforce Investment Act, which added the
Smithsonian to the list of federal government employers that are prohibited from en-
gaging in such discrimination. Similarly, Congress amended the Age Discrimination in
Employment Act, adding the Smithsonian to the list of entities prohibited from discri-
minating on account of age in Federal Government employment.
In Dong, a case involving the privacy rights of a Smithsonian employee of the
Hirschhorn Museum and Sculpture Garden, the court found that the Smithsonian’s was
not an “agency” covered under the Privacy Act.35 Similar to Rivera, the court reasoned
that based on the denition of agency “it is plain that the Smithsonian is not an esta-
blishment in the executive branch.” Additionally, the Dong Court held that the Adminis-
trative Procedures Act did not apply to the Smithsonian because it lacked “substantial
independent authority to take nal binding action aecting the rights and obligations
of individuals, particularly by the characteristic procedures of rule-making and adjudi-
cation.” 36
Courts have similarly rejected the idea that the Smithsonian is not a government
controlled corporation. In Dong, the court rejected that argument because the relevant
section listed only corporations in the executive branch.37A federal corporation may
however be considered a government instrumentality subject to coverage without
being strictly established in the executive branch.38 For example, the Tennessee Valley
Authority is a government corporation, understood to be outside of the executive bran-
ch – it being essentially a government-run business. However, Assistant Attorney Gene-
ral Ulman found Section 461(a) of the Act, 42 U.S.C. § 661(a), authorizes the President
to promulgate regulations implementing § 459 for the executive branch, including any
wholly owned Federal corporation created by act of Congress, [and therefore] may co-
ver payments for Federal workers’ compensation payments from the Tennessee Valley
Authority (TVA) retirement system.”39 Thus TVA may be a Federal instrumentality based
on the view that the retirement system was established by a “under statutory authority
to further its purposes by enhancing the welfare of its employees.”40
35 COLUMBIA. Dong v. Smithsonian Inst. United States Court of Appeals, District of Columbia Circuit. -, (D.C. Cir. 1997) 125
F.3d 877.
36 COLUMBIA. Dong v. Smithsonian Inst. United States Court of Appeals, District of Columbia Circuit. -, (D.C. Cir. 1997) 125
F.3d 877.
37 COLUMBIA. Dong v. Smithsonian Inst. United States Court of Appeals, District of Columbia Circuit. -, (D.C. Cir. 1997) 125
F.3d 877.
38 See UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 (2015);
UNITED STATES. Lebron v. Nat’l R.R Passenger Corp. Supreme Court Of The United States. 513 U.S. 374, 377-78 (1995).
39 UNITED STATES. Memorandum for the Director, Oce of Personnel Management from Assistant Attorney General Ulman.
Opinion of the Oce of Legal Concern, Washington, vol. 3, 274-242, 1979.
40 UNITED STATES. Memorandum for the Director, Oce of Personnel Management from Assistant Attorney General Ulman.
Opinion of the Oce of Legal Concern, Washington, vol. 3, 274-242, 1979.
Unconstitutional limbo: why the Smithsonian Institution may violate the separation of powers doctrine
45
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4. OTHER GOVERNMENT INSTRUMENTALITIES
The TVA opinion raises the question of how the status of other federal instru-
mentalities may bear on the status of the Smithsonian, its constitutionality and regard
for the separation of powers.
Consider Lebron v. National Railroad Passenger Corporation, in which Michael
Lebron, an artist, sued Amtrak because it rejected his lease of a billboard advertisement
at Penn Station in New York. Lebron’s advertisement consisted of a photo-montage
depictions of war in Nicaragua including a Coors beer can and textual criticism of the
Coors family for supporting the Contras, a right-wing counter-revolutionary group.41
Lebron had signed a contract giving Amtrak approval as to the character, text, illustra-
tion, design, and operation of the advertisement. Amtrak deemed the artistic depiction
on the billboard to be “political” and rejected the work. Lebron sued
Amtrak claiming the basis for the rejection violated the First Amendment. The
case went to the Supreme Court over the issue of Amtrak’s governmental status, with
Lebron rst claiming Amtrak was close to the government and then later a “government
entity.” The court, with Scalia writing for the majority, held that Amtrak was a govern-
ment instrumentality, thus part of the Government for purposes of a First Amendment
claim.42 Although the Federal statute chartering Amtrak disavowed it was a govern-
ment agency, the Court found the disclaimer is insucient for exempting the Gover-
nment from Constitutional restrictions where the government has used Amtrak as an
instrument for government action. Thus, the court considered several factors in deter-
mining what about Amtrak’s status that qualied it as a government instrumentality.
Scalia noted that “Amtrak was created by a special statute, explicitly for the fur-
therance of federal governmental goals.” Six of the corporation’s directors are appoin-
ted by the President of the United States – four of them with the advice and consent
of the Senate. For Scalia, Amtrak “is established and organized under federal law for
the very purpose of pursuing federal governmental objectives, under the direction and
control of federal governmental appointees. It is in that respect no dierent from the
so-called independent regulatory agencies such as the Federal Communications Com-
mission or the Securities Exchange Commission, which are run by Presidential appoin-
tees with xed terms.” The directors, except for the Secretary of Transportation are “not,
by the explicit terms of the statute, removable by the President for cause, and are not
impeachable by Congress.”43
If Amtrak’s status is suggestive of some of the characteristics of the Smithso-
nian, another case, Dep’t of Transp. v. Ass’n of Am. Railroads asserts that a government
41 UNITED STATES. Lebron v. Nat’l R.R Passenger Corp. Supreme Court Of The United States. 513 U.S. 374, 377-78 (1995).
42 UNITED STATES. Lebron v. Nat’l R.R Passenger Corp. Supreme Court Of The United States. 513 U.S. 374, 377-78 (1995).
43 513 U.S. 374, 397-98.
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JACLYN KURIN
46
instrumentality exercising vested power that aects private rights must comply with
the constitutional separation of power requirements. In 2008, under the Passenger Rail
Investment and Improvement Act, Congress gave Amtrak and the Federal Railroad Ad-
ministration the authority to issue metrics and standards concerning the on-time and
delayed performance of passenger railroad service on track caused by host railroads,
like the members of The Association of Railroads. The Association sued the Department
of Transportation—because it held all of Amtrak’s preferred stock and most of its com-
mon stock, claiming it was unconstitutional for Congress to allow Amtrak as a private
company to exercise authority over such standards. The District Court rejected the As-
sociation’s claim, but the DC Circuit reversed on the separation of powers claim that a
private corporation could not constitutionally be granted regulatory power. The Supre-
me Court vacated the Circuit ruling on the grounds that Amtrak was a governmental
entity under the purposes of the Act.
Justice Kennedy, writing for the majority, noted that both the Respondent and
the Court of Appeals relied upon statutory directives that Amtrak “shall be operated
and managed as a for prot corporation” and is “not a department, agency, or instru-
mentality of the United States Government.” §§ 24301(a)(2)-(3). But he rejected that
assertion, noting the appointees to the Amtrak board of directors, and that it had re-
ceived about $1 billion a year from the federal government. Kennedy cited Lebron and
wrote that, for purposes of Amtrak’s status as a federal actor or instrumentality under
the Constitution, the practical reality of federal control and supervisions prevails over
Congress’ disclaimer of Amtrak’s governmental status. Treating Amtrak as governmen-
tal for these purposes, moreover, is not an unbridled grant of authority to an unaccou-
ntable actor. The political branches created Amtrak, control its Board, dene its mission,
specify many of its day to day operations, have imposed substantial transparency and
accountability mechanisms, and, for all practical purposes, set and supervise its annual
budget. Accordingly, the Court holds that Amtrak is a governmental entity, not a priva-
te one, for purposes of determining the constitutional issues presented in this case.44
Kennedy asserted that “exercise of governmental power must be consistent
with the design and requirements of the Constitution, including those provisions rela-
ting to the separation of powers.”45
Though he concurs with Kennedy, Justice Thomas takes the matter further. He
argues that “A determination that Amtrak acts as a government entity in crafting the
metrics and standards says nothing about whether it properly exercises governmental
power when it does so.”
44 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225.
45 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225.
Unconstitutional limbo: why the Smithsonian Institution may violate the separation of powers doctrine
47
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Thomas does not believe Amtrak is “properly constituted to exercise a power
under one of the Vesting Clauses.”46 To the extent Amtrak’s promulgation of metrics
and standards rules for the private railroads to follow constitute legislative power, Tho-
mas says it is unconstitutional. “Amtrak is not Congress.” Amtrak’s rules do not “comply
with bicameralism and presentment” under Article I, § 7.”47
Justice Alito’s concurrence explains more about what constitutional restrains
would qualify to make Amtrak remain subject to Presidential control.48 “[A]ccountability
demands that principal ocer be appointed by the President, and this principle applies
with special force to those who can ‘exercise signicant authority’ without direct super-
vision.”49 Alito acknowledges that “a multimember body may head an agency,” such as
in the case of Free Enterprise Fund. But in such instances, Alito claries, that “those who
head agencies must be principal ocers.”50 Alito says “because agency heads must be
principal ocers, ever multimember body heading an agency must also be a principal
ocer.” “[E]very member of a multimember body could cast the deciding vote with a
particular decision.”51 Therefore, because “anyone who has the unilateral authority to
tip a nal decision one way or the other cannot be an inferior ocer.”52
Alito discounts the notion that Amtrak’s president could be an inferior ocer.
But even entertaining the idea the Amtrak president was, there would still be consti-
tutional defects.53 Under Art. II § 2, cl. 2, Congress would be able to vest the head of a
department with the authority to appoint of an inferior ocer. However, “it is not clear
that Amtrak is a Department.”54
Members of Congress, with power over the Smithsonian’s legislation and bud-
get also sit on its Board of Regents. Given the arguable need for a federal instrumentali-
ty to comply with the separation of powers, the case of Metro. Washington Airports Auth.
(MWAA) v. Citizens for Abatement of Aircraft Noise, Inc., may be instructive. MWAA, con-
cerned with the operation of District of Columbia area airports, challenged the consti-
tutionality of a review board created by legislation transferring control of airports from
Congress to a local authority. The Federal Government has a strong and continuing
46 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225. at 1253
(Thomas, J. concurring).
47 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225. at 1254
(Thomas, J. concurring).
48 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225. at 1240
(Alito, J. concurring)
49 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225. at 1240
(Alito, J. concurring)
50 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 at 1239.
51 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 at 1239.
52 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 at 1239.
53 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 at 1239.
54 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 at 1239.
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 3, p. 35-60, set./dez. 2017.
JACLYN KURIN
48
interest in the ecient operation of the airports, which are vital to the smooth con-
duct of Government business conditioned the transfer to the Airport Authority provi-
ded that legislators had voting rights on Board of Review, which had authority over air
transportation decisions.55
The Supreme Court stated that for a separation of powers analysis, it is unne-
cessary to determine as the Court of Appeals did, that the Board of Review exercised
“quintessentially executive power” by making ‘key operational decisions’ aecting a lo-
cal public airport (public entity). It is sucient to conclude that Congress exceeded its
constitutional authority in its manner of inserting itself into the execution of the airport
aairs. Specically, by requiring members of Congress be on the Board of Review, ca-
pable of vetoing particular plans regarding the operation or management of airport
failed to comply with legislative power constraints of bicameralism and presentment.56
Congress’ conditioning of transfer of District of Columbia area airports to local
authority upon creation of Board of Review composed of congressmen and having veto
power over decisions of local authority’s directors violated separation of powers. The
Court stated that “if the power is executive, the Constitution does not permit an agent
of Congress to exercise it.” The Court then turned to analyze whether Congress exerci-
sing veto power over the airport’s board of directors’s decision was an unconstitutional
exercise of legislative power. The Court stated that “if the power is legislative, Congress
must exercise it in conformity with the bicameralism and presentment requirement.”57
5. ANALYSIS: DOES THE SMITHSONIAN VIOLATE THE SEPARATION
OF POWERS?
5.1. The Formalist Objection
The doctrine of separation of powers reects a view that the Constitution res-
tricts the exercise of Federal Government power that may be judicially redressible. The
two prominent views for separation of powers analysis are functionalism and formalism.
Functionalists believe that “Congress is substantially free reign to innovate as
long as the particular scheme satises the functional aims of the constitutional struc-
ture taken as a whole.”58
55 UNITED STATES. Metro. Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise. Supreme Court of United
States. Inc., 501 U.S. 252, 266-(1991).
56 UNITED STATES. Metro. Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise. Supreme Court of United
States. Inc., 501 U.S. 252, 266 (1991).
57 UNITED STATES. Metro. Washington Airports Auth. v. Citizens for Abatement of Aircraft Noise. Supreme Court of United
States. Inc., 501 U.S. 252, 266 (1991) at 276.
58 MANNING, John F. Separation of Powers As Ordinary Interpretation. Harvard Law Review, Cambridge, vol. 124, p. 1942-2040,
1939.
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Functionalist are interested in maintaining a “workable government.” The “pri-
mary concern is whether the challenged government scheme disrupts the proper ba-
lance between coordinate branches.” The problem with Functionalism, as one scholar
notes, is that the approach “guards against sudden grasps of power, but not against
step-by-step encroachment that result in large power grabs.”59
Formalism, on the other hand, invokes a strict textualist approach to the Cons-
titution. A formalist will enforce what he regards as the text’s formal lines of separa-
tion.” A challenged exercise of government power is checked against Constitutional
“procedural requirements,” such as the Vesting and Appointments Clauses. The “Consti-
tution draws sharply dened and judiciable enforceable lines among the three distinct
government branches.” Formalists also believe the Constitution’s structure within the
document support a “free standing separation of powers.” Therefore, the challenged
arrangement must aect powers in a manner or degree that is constitutionally prohi-
bited.”60Although a formalist analysis may be more restrictive on government arrange-
ments and possibly less supportive of realistic means for governance or the New Deal
administrative state, the advantages of formalism is that the adherence to Constitu-
tional text is more reliable. The analysis construes the Constitution in a manner that
gives notice of prohibited behavior and thus promotes more consistent rulings, and
reliance in devising a statutory scheme or other exercise of Vested federal government
power. Accordingly, this paper applies a formalist analysis in reviewing challenged go-
vernment action discussed below.
Determining whether a branch of the Federal Government or its delegate viola-
tes the separation of powers turns on whether the Constitution forbids allocating “le-
gislative, executive, or judicial powers of the Federal Government” stemming from the
Vesting Clauses “to an ineligible entity.”61
Justice Thomas analyzes a separation of power by applying the non-delegation
doctrine.
Justice Thomas says that “[t]he Constitution does not vest the Federal Govern-
ment with an undierentiated governmental power” but instead “identies three types
59 STRAUSS, Peter. Formal & Functional Approcaches to Separation of Powers Questions – A Foolish Inconsistency? Cornell Law
Review, New York, vol. 72, n. 3, p. 488-526, mar. 1987. p. 513.
60 MANNING, John F. Separation of Powers As Ordinary Interpretation. Harvard Law Review, Cambridge, vol. 124, p. 1942-2040,
1939. Manning explains — This aspect of formalism makes itself felt in so-called “encroachment” cases, which deal with the
claim that Congress has violated the separation of powers through its regulation or oversight of the executive or judicial powers.
Because the Necessary and Proper Clause, as noted, gives Congress at least some authority to prescribe-and thus to shape and
channel--the means by which all the branches carry their powers into execution,one cannot demonstrate impermissible legis-
lative encroachment merely by showing that a statute regulates or structures the exercise of another branch’s powers. Rather,
the challenged arrangement must somehow aect those powers in a manner or to a degree that the Constitution otherwise
prohibits.
61 In short, the “private non delegation doctrine” is merely one application of the provisions of the Constitution that forbid
Congress to allocate power to an ineligible entity, whether governmental or private. UNITED STATES. Dep’t of Transp. v. Ass’n
of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 at 1225.
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JACLYN KURIN
50
of governmental power and in the Vesting Clauses, commits them to three branches of
Government.” Article I § 1 vests all legislative powers in the Congress.62 And under Arti-
cle II § 1, the executive power vests in the President of the United States.63 Thomas says
“[t]hese grants are exclusive ... [and w]hen the Government is called upon to perform
a function that requires an exercise of legislative, executive, or judicial power, only the
vested recipient of that power can perform it.”64
Additionally Thomas notes that the Constitution not only “allocate[es] power
among the dierent branches[,]”but it also “identies certain restrictions on the manner
in which those power are to be executed.”65 The Constitution requires, in Article I, § 7 cl.
2, that Congress exercise its legislative power through the manner of bicameralism and
presentment. The Article states that “[e]very Bill which shall have passed the House of
Representatives and the Senate, shall, before it become a Law, be presented to the Pre-
sident of the United States; If he approve he shall sign it, but if not he shall return it...”66
Thomas says that “the Constitution is less specic about how the President shall
exercise [executive] power, it is clear that he may carry out his duty to take care that the
laws be faithfully executed with the aid of subordinates.”67
Congress improperly delegates power when it “authoriz[es] an entity to exercise
power in a manner inconsistent with the Constitution.”68 Congress “improperly dele-
gates legislative power to itself when it authorizes itself to act without bicameralism
and presentment.”69 Congress also acts in a manner inconsistent with the Constitution
when it “authorizes the exercise of executive power” to “individuals or groups outside
the President’s control to perform a function that requires the exercise of that power.”70
Thomas recognizes that in some cases “[i]t may never be possibly perfect to dis-
tinguish between legislative and executive power, but that does not mean we may look
the other way when the Government asks us to apply a legally binding rule that is not
enacted by Congress pursuant to Article I.”71
62 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 at 1225.
63 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1240 (Thomas,
J. concurring)
64 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 at 1225.
65 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 at 1225.
66 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225 at 1225
67 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225, 1253 (2015)
(Thomas, J. concurring).
68 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. 1225, 1253 (2015)
(Thomas, J. concurring).
69 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. (citing INS v. Chadha,
462 U.S. 919, 959 (1983)).
70 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. (citing Free Enter-
prise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010)).
71 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. at 1251-52 (2015)
(Thomas, J. concurring).
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In instances where the court is uncertain whether the power at issue is executive
or legislative, the Court has analyzed the power from both perspectives.
According to Justice Thomas, it should matter little whether the Smithsonian is
labeled a federal agency, a trust instrumentality, or private entity. The ultimate question
whether the government created “entity is properly constituted to exercise a power un-
der one of the Vesting clauses.”72 If it is not “properly constituted to do so, it is no better
qualied to be an agent of that power that a purely private entity.”73 Thus, the question
is whether the Board of Regents properly constituted to exercise a power under one of
the Vesting Clauses?
The analysis has two steps. The rst is to classify the power the legislation pur-
ports to authorize the entity (government instrumentality) to exercise. Second would
be to “determine whether the Constitution’s requirements for the exercise of that power
have been satised.”74 According to Justice Thomas the:
rst constraint is illustrated by the Court’s holdings in Springer v. Philippine Islands, 277
U.S. 189 (1928), and Bowsher v. Synar, 478 U.S. 714 (1986). Springer involved the validity
of Acts of the Philippine Legislature that authorized a committee of three—two legisla-
tors and one executive—to vote corporate stock owned by the Philippine Government.
Because the Organic Act of the Philippine Islands incorporated the separation-of-powers
principle, and because the challenged statute authorized two legislators to perform the
executive function of controlling the management of the government-owned corpora-
tions, the Court held the statutes invalid.75
The second constraint is illustrated by our decision in Chadha. That case involved the
validity of a statute that authorized either House of Congress by resolution to invali-
date a decision by the Attorney General to allow a deportable alien to remain in the
United States. Congress had the power to achieve that result through legislation, but
the statute was nevertheless invalid because Congress cannot exercise its legislative
power to enact laws without following the bicameral and presentment procedures
specied in Article I.76
72 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct. at 1251-52 (2015)
(Thomas, J. concurring).
73 at 1251-52 (2015) (Thomas, J. concurring).
74 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct., 1253 (2015)
(Thomas, J. concurring).
75 UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States. 135 S. Ct., 1253 (2015)
(Thomas, J. concurring).
76 135 S. Ct. 1225 (citing UNITED STATES. Lebron v. Nat’l R.R Passenger Corp. Supreme Court Of The United States. 513 U.S.
374, 377-78 (1995)).
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In Dong, the court said in dicta it was concerned about having members of the
judicial and legislative branches serving on the Smithsonian’s governing board becau-
se if the Institution was an executive branch establishment this could constitute a vio-
lation of the separation of powers.77
5.2. From Exercising Executive and Legislative Functions to Aecting
Private Rights
The status of a number of actions by the Smithsonian and its Board of Regents in-
dicate possible separation of powers problems inherent in the work of the Smithsonian.
In 1988, the Oce of Legal Counsel oered its opinion that the Smithsonian
was as an executive agency under the Federal Property and Administrative Services
Act (“Property Act”), 40 U.S.C. §§ 471-54478 The Property Act is administered under the
General Services Administration and establishes procedures for the management of
governmental property. According to Section 3, the Property Act applies to “executive
agencies” and to “federal agencies 79” dened as:
(a) The term “executive agency” means any executive department or independent es-
tablishment in the executive branch of the Government, including any wholly owned
Government corporation.
(b) The term “Federal agency” means any executive agency or any establishment in the
legislative or judicial branch of the Government (except the Senate, the House of Repre-
sentatives, and the Architect of the Capitol and any activities under his direction).
As the Oce of Legal Counsel noted, “it has long been understood that tran-
sactions with the Smithsonian involving federal property or appropriated funds are
subject to federal property and contract law.”80 Both the Smithsonian and Oce of
Legal Counsel agree the Property Act applies to the Smithsonian. The Smithsonian took
the position that it was not an executive agency, but rather a Federal agency for the
77 COLUMBIA. Dong v. Smithsonian Inst. United States Court of Appeals, District of Columbia Circuit. 125 F.3d 879 (D.C. Cir.
1997).
78 KMIEC, Douglas W. The Status of the Smithsonian Institution Under the Federal Property and Administrative Services Act.
Opinion of the Oce of Legal Concern, Washington, vol. 12, 122-127, june 1988. Available at:
le/24096/download>. p. 124.
79 40 U.S.C. §§ 471-544.
80 Act of Dec. 30, 1982, Pub. L. No. 97-394, 96 Stat. 1966, 1991-92 (1982) (provisions for appropriations to the Smithsonian pre-
sume the applicability of the procurement provisions of the Property Act); 45 Comp. Gen. at 686-88; 12 Comp. Gen. 317 (1932).
Unconstitutional limbo: why the Smithsonian Institution may violate the separation of powers doctrine
53
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purposes of The Property Act. Because Congress did not specify the status of the Smi-
thsonian for the Property Act and the legislative history was silent, the Oce of Legal
Counsel in its analysis found the strongest evidence in the fact that The Property Act re-
pealed the Smithsonian’s prior statutory authority for certain property exchanges and
replaced it with a provision applicable only to executive agencies.81
If the Property Act places the Smithsonian more rmly in the executive branch
with regard to its source of funds, spending and acquisition of property, the court’s
consideration of Cotton buttresses that notion. In Cotton, the court considered the Smi-
thsonian in terms of it governmental functions and found that it serves as “a center of
scholarship and national museum responsible for the safekeeping and maintenance of
national treasures.”82 The court considered that the Smithsonian received federal funds
for many of its operations and has a majority of civil service employees. The Smithso-
nian employs more than 4,000 civil service sta – the other 2,000 are trust fund em-
ployees. The Smithsonian’s federal workers in the competitive service are paid for with
federally appropriated funds, while the trust fund workers are paid with funds from
business activities, gifts, grants, contracts and payout from the Smithsonian endow-
ment. As Picard notes, “by denition, the competitive service includes “all civil service
positions in the executive branch.”83
Who then oversees the Smithsonian workforce? Seemingly, by its founding
charter, the trust-funded, non-civil service Smithsonian Secretary hired by the Board of
Regents. But if the Regents are exercising executive power, they would seem to lack the
requisite condition of having employees, particularly its executive branch civil service
sta being subject to the President’s control.
This issue became interesting during one of the Smithsonian’s major controver-
sies. In 1995, the Smithsonian’s National Air and Space Museum planned an exhibition
of the Enola Gay—the plane that dropped the atomic bomb on Hiroshima, leading to
the end of World War II and ushering in the nuclear age. Veterans groups were shown
the script of the exhibit in the planning stage and were incensed by what they saw as
overly kind treatment of the Japanese as victims and the demonization of American
forces and leaders in the decision to drop the bomb. The protested to members of Con-
gress and to President Clinton. 81 members of Congress signed a letter calling for the
dismissal of the Air and Space Museum director Martin Harwitt.84 President Clinton as
81 KMIEC, Douglas W. The Status of the Smithsonian Institution Under the Federal Property and Administrative Services Act.
Opinion of the Oce of Legal Concern, Washington, vol. 12, 122-127, june 1988. Available at:
le/24096/download>. p. 124.
82 COLUMBIA. Cotton v. Adams. District Court for the District of Columbia - June 26. 1992. 798 F. Supp. 22, 24.
83 5 U.S.C. § 2102 (a)(1) (2006).
84 HIRSCH, Arthur. Smithsonian Cancels Exhibit on Atomic Bomb. Baltimore Sun Times, Baltimore, jan. 31, 1995. Available at:
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the head of the executive branch had no removal authority, no ability to re Harwitt nor
dismiss Heyman. In the end, Harwitt resigned.85
For Regents, the process of removal is more complex and rare. There is only one
instance where a Regent was removed from his position.86 Congress removed the Re-
gent by joint resolution. This was during the Civil War. The Regent was a member of the
House of Representatives and the reason for his expulsion was for providing “aid and
comfort to enemies of the government.”87-88
If there are issues with executive functions, the Smithsonian has also ventured
into what seem like legislative matters. The Board of Regents has promulgated stan-
dards and directives that decree what may be accepted into the national collections,
rules about what kind of donations may be accepted and so on without necessarily ha-
ving explicit legislative authority to do so. These may be regarded as somewhat minor
infractions, but sometimes they emerge as contentious. For example, most of the Smi-
thsonian’s national museums have been created by Congressional legislation, but the
Smithsonian has itself created the Cooper-Hewitt Smithsonian Design Museum and the
Anacostia Community Museum without legislation, earning Congressional criticism.
This seeming Smithsonian infringement on legislative authority emerged in a
controversy in 1985 where the former Smithsonian Secretary S. Dillon Ripley had nego-
tiated a $5 million gift from the Government of Saudi Arabia for support of a Center for
Islamic Arts and Culture to be part of the Smithsonian International Center, to be loca-
ted in the Smithsonian’s newly built Quadrangle building complex adjacent to its Cas-
tle headquarters on the National Mall and largely underground.89 The Smithsonian’s
plan was for the Quadrangle to house the National Museum of African Art, the Sackler
Gallery of Asian Art and the International Center. Ripley’s plan was to couple the Saudi
gift with appropriated federal funds to support the enterprise, and in the Smithsonian
agreement with the Saudis, the Smithsonian agreed to rename a gallery the Asian and
African Gallery.90 Sidney Yates, the chair of the House subcommittee on appropriations
overseeing the Smithsonian’s federal budget the arrangement, and renaming some-
thing approved by Congress came as a surprise to him and were unacceptable. The
85 Ocial Resigns Over Exhibit of Enola Gay, New York Times (May 3, 1995), Available at:
us/ocial-resigns-over-exhibit-of-enola-gay.html>.
86 H.R.J. Res. 21, 37th Cong. (1868).
87 H.R.J. Res. 21, 37th Cong. (1868).
88 SMITHSONIAN. 20 U.S.C. §§ 44-80; Smithsonian Inst. Bylaws of the Board of Regents §§ 1.01-6.06 (2014); Smithsonian
Directives (2013).
89 BATTIATA, Mary. Saudi Gift Controversy at the Smithsonian. Washington Post, Washington, 9 oct. 1985. Available at:
www.washingtonpost.com/archive/lifestyle/1985/10/09/saudi-gift-controversy-at-thesmithsonian/ac61fda89bf5-4398-9b-
78-296ed18e7678/>.
90 BATTIATA, Mary. Saudi Gift Controversy at the Smithsonian. Washington Post, Washington, 9 oct. 1985. Available at:
www.washingtonpost.com/archive/lifestyle/1985/10/09/saudi-gift-controversy-at-thesmithsonian/ac61fda89bf5-4398-9b-
78-296ed18e7678/>.
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55
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 3, p. 35-60, set./dez. 2017.
Regents agreed to renege on the deal, and returned the Saudi gift.91 The Washington
Post opined that the controversy could “be attributed to the Smithsonian’s unique, qua-
si-federal status,” as well as Ripley’s ruling style which Congressional critics charged was
“Kremlinesque” as he failed to “tell Capitol Hill too much about what it was doing.”92
The question is whether or not these indiscretions really amount to much le-
gally. For Scalia, dissenting in Mistretta v. United States, declared that, “where no go-
vernment power is at issue, there is no strict constitutional impediment to a branchless
agency...”93 Scalia dissented on the formation of a Sentencing Commission because “[t]
he lawmaking function of the Sentencing Commission is completely divorced from any
responsibility for execution of the law or adjudication of private rights under the law.94
“[T]he Commission neither exercises any executive power on its own, nor is subject to
control of the President ...”95 “The only functions it performs...are data collection and
intragovernmental advice giving and educational [activities] ...similar to the functions
performed by congressional agencies and even congressional sta [that] neither deter-
mine nor aect private rights, and do not constitute an exercise of government power.96
Courts and the Oce of Legal Counsel have seized on the similar notion that
the work “currently exercised by the presently existing congressional agencies” such as
the “functions undertaken by the Library of Congress, the basic accounting tasks of the
Government Accounting Oce, and all of the duties of the Architect of the Capitol can
comfortably be described as in aid of the legislative process.”97 Even the Smithsonian’s
and its bureaus’ activities, the Oce of Legal Counsel claims, “t under a broad cons-
truction” of providing aid to the legislative branch. In short, the Oce of Legal Counsel
opines, that the exercise of powers by such agencies “may be deemed constitutionally
harmless.”98
So, does the Smithsonian exercise government power that might aect private
rights?, because that was indeed the issue in Dep’t of Transp., where Amtrak with FRA
91 BATTIATA, Mary. Saudi Gift Controversy at the Smithsonian. Washington Post, Washington, 9 oct. 1985. Available at:
www.washingtonpost.com/archive/lifestyle/1985/10/09/saudi-gift-controversy-at-the smithsonian/ac61fda89bf5-4398-9b-
78-296ed18e7678/>.
92 BATTIATA, Mary. Saudi Gift Controversy at the Smithsonian. Washington Post, Washington, 9 oct. 1985. Available at:
www.washingtonpost.com/archive/lifestyle/1985/10/09/saudi-gift-controversy-at-the smithsonian/ac61fda89bf5-4398-9b-
78-296ed18e7678/>.
93 UNITED STATES. Mistretta v. United States. Supreme Court of United States. 488 U.S. 361, 423 (1989) (Scalia, J., dissenting).
94 UNITED STATES. Mistretta v. United States. Supreme Court of United States. 488 U.S. at 420 (1989).
95 UNITED STATES. Mistretta v. United States. Supreme Court of United States. 488 U.S. at 420 (1989).
96 UNITED STATES. Mistretta v. United States. Supreme Court of United States. 488 U.S. at 420-412 (1989). (emphasis added)
97 DELLINGER, Walter. The Constitutional Separation of Powers Between the President and Congress. Opinion of the Oce of
Legal Concern, Washington, vol. 20. p. 124-181, may 1996. Available at:
nions/1996/05/31/op-olc-v020-p0124_0.pdf>. p. 172.
98 DELLINGER, Walter. The Constitutional Separation of Powers Between the President and Congress. Opinion of the Oce of
Legal Concern, Washington, vol. 20. p. 124-181, may 1996. Available at:
nions/1996/05/31/op-olc-v020-p0124_0.pdf>. p. 172.
Revista de Investigações Constitucionais, Curitiba, vol. 4, n. 3, p. 35-60, set./dez. 2017.
JACLYN KURIN
56
was exercising government power by creating a regulatory standard that aected pri-
vate rights. When a government instrumentality performs a function that determines
or aects private rights or the prerogatives of the other branches,” that entity is exerci-
sing government powers.99
The Smithsonian has historically exercised such powers with regard to excava-
tions and the collection of both antiquities and objects of natural history. The Anti-
quities Act of 1906 provided a federal mechanism for the retrieval of these objects on
federal land.100 Many of the sites were Native American historic and prehistoric sites.
Excavating on those sites required a permit, and such permits were originally issued
only by the Smithsonian Institution.101 This had the advantage of professionalizing ar-
chaeology early on by restricting such activities to competent scholars and scientists.
But it also restricted access and availability of Native items to their tribes and tribal
members. Other laws through the 20th century authorized the Smithsonian to “coo-
perate with any State, educational institution, or scientic organization in the United
States to continue independently or in cooperation anthropological researches among
the American Indians and the natives of lands and the excavation and preservation of
archaeological remains.102 Such provided that “all such cooperative work and division
of the result thereof shall be under the direction of the Secretary of the Smithsonian
Institution.”103 “Where lands under the jurisdiction of the Bureau of Indian Aairs or the
National Park Service, cooperative work would proceed under regulations and condi-
tions as the Secretary of the Interior may provide.”104
This role of the Smithsonian extended to lands that might be ooded by Gover-
nment built dams with consequences for private property. “The Secretary of the Smi-
thsonian Institution is authorized to cooperate with any State, educational institution,
or scientic organization in the United States for continuing paleontological investi-
gations, and the excavation and preservation of fossil remains, in areas which will be
ooded by the construction of Government dams or otherwise be made unavailable
99 See UNITED STATES. Dep’t of Transp. v. Ass’n of Am. Railroads. Supreme Court of the United States.135 S. Ct. 1225, 1253
(2015); UNITED STATES. Mistretta v. United States. Supreme Court of United States. 488 U.S. 361, 425 n3 (1989) (Scalia, J.,
dissenting) In his dissent, Justice Scalia argued – There are of course agencies within the Judicial Branch (because they operate
under the control of courts or judges) which are not themselves courts, see, e.g., 28 U.S.C. § 601 et seq. (Administrative Oce
of the United States Courts), just as there are agencies within the Legislative Branch (because they operate under the control of
Congress) which are not themselves Senators or Representatives, see, e.g., 31 U.S.C. § 701 et seq. (General Accounting Oce).
But these agencies, unlike the Sentencing Commission, exercise no governmental powers, that is, they establish and determine
neither private rights nor the prerogatives of the other Branches. They merely assist the courts and the Congress in their exercise
of judicial and legislative powers. Mistretta, 488 U.S. at 425 n3 (Scalia, J., dissenting).
100 UNITED STATES. The Antiquities Act, 1900-06 (codied 16 U.S.C. §§ 431- 433 (2009))
101 UNITED STATES. The Antiquities Act, 1900-06 (codied 16 U.S.C. §§ 431- 433 (2009))
102 20 U.S.C. § 69.
103 20 U.S.C. § 70.
104 20 U.S.C. § 70.
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for such investigations because of such construction.”105 Even now, with the passage
of the National Museum of the American Indian Act in 1989 which applies solely to the
Smithsonian,106 and the Native American Graves Protection and Repatriation Act (NA-
GPRA), passed in 1990,107 the Department of Interior relies on discretionary standards
developed and promulgated by the Smithsonian to make decisions about repatriation
of human materials, sacred and funerary objects to Native peoples.108 To the extent that
the Smithsonian engages in these types of activities and establishes standards aec-
ting private rights, it is either an impermissible exercise of executive power—assuming
it is a legislative agency; but if it is in the legislative branch then it is an impermissible
exercise of legislative power because the Regent resolution process fails to comply with
the bicameralism and presentment requirement.
5.3. Ineligibility of Appointment
The most obvious violation of the separation of powers is the membership on
the Board of Regents, particularly with regard to its Congressional members. According
to the U.S. Constitution:
No Senator or Representative shall, during the Time for which he was elected, be appoin-
ted to any civil Oce under the Authority of the United States, which shall have been
created, or the Emoluments whereof shall have been increased during such time; and
no Person holding any Oce under the United States, shall be a Member of either House
during his Continuance in Oce.109
The question then becomes, does being a Regent of the Smithsonian qualify as
holding any Oce under the United States?
According to DOJ, “The most common problem under the Ineligibility Clause
arises from legislation that creates a commission or other entity and simultaneously
requires certain ...members be Representatives or Senators, either ex ocio or by se-
lection or nomination by congressional leadership.”110 Although advisory or purely ce-
105 20 U.S.C. § 78.
106 UNITED STATES. National Museum of the American Indian Act, Public Law. 101-185, 103 Stat. 1336 (Nov. 28, 1989) .
107 UNITED STATES. Native American Graves Protection and Repatriation Act, Public Law. 101-601, 104 Stat. 3048 (Nov. 16, 1990).
108 MITTAL, Anu K. Key Federal Agencies’ and the Smithsonian Institution’s eorts to Identify and Repatriate Indian Hu-
man Remains and Objects. Available at: .
109 UNITED STATES. Constitution. art. I, § 6, cl. 2
110 DELLINGER, Walter. The Constitutional Separation of Powers Between the President and Congress. Opinion of the Oce of
Legal Concern, Washington, vol. 20. p. 124-181, may 1996. Available at:
nions/1996/05/31/op-olc-v020-p0124_0.pdf>. p. 160.
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JACLYN KURIN
58
remonial roles are permissible, appointing a currently serving member of Congress to
a role in which he would perform executive functions would violate the Ineligibility
Clause.111Given that the Smithsonian Congressional Regents are appointed respecti-
vely by the President of the Senate and the Speaker of the House, ie., their role as Re-
gents would violate the ineligibility clause to the extent the duties of the Regents were
regarded as performing executive functions.
According to DOJ “designating a member of Congress to serve on a commission
with any executive functions, even in what was expressed a purely ceremonial role,
may render the delegation of signicant governmental authority to the commission
unconstitutional as a violation of the anti-agrandizement principle.”
Both M WAA and Springer struck down on general separation of powers prin-
ciples provisions that envisioned the presence of legislators on managerial boards of
public entities engaged in proprietary activities.112
Interestingly enough, the same problem might not obtain for judges and parti-
cularly the Chief Justice who serves on the Board of Regents. In Mistretta v. United States,
“the principle of separation of powers does not absolutely prohibit Article III judges
from serving on commissions...”113
6. CONCLUSION
The Smithsonian cannot survive a formalist critique of its status as a violation of
the separation of powers. While the Smithsonian is clearly a government entity, and as it
itself describes an “instrumentality” of the U.S., its powers are unclear. Its powers cannot
be clearly described as judicial, legislative or executive. Its connection to the Vesting
clauses is also unclear. While they perhaps tend toward the executive, the Smithsonian
governing Board of Regents has no direct connection with the President of the United
States. Though the President is legally the presiding ocer of the “establishment, that
body exercises no power and has not met in almost 90 years. Furthermore, no one on
the Board of Regents, nor the Secretary of the Smithsonian is appointed by the Presi-
dent. The composition of the Board of Regents is problematic, particularly members of
Congress. Norton’s idea for the reformation of the Board, which would mean Congress
appointing all private individuals to the Board of Regents would eliminate the latter
problem. Alternatives might be reforming the Smithsonian to make it more clearly
federal and executive, like the National Archives and Record Administration that has a
111 DELLINGER, Walter. The Constitutional Separation of Powers Between the President and Congress. Opinion of the Oce of
Legal Concern, Washington, vol. 20. p. 124-181, may 1996. Available at:
nions/1996/05/31/op-olc-v020-p0124_0.pdf>. p. 160.
112 Currie (“as an original matter one might argue that the separation of power provisions with which we are concerned . . . apply
only to the business of governing, not to government-run business.”).
113 UNITED STATES. Mistretta v. United States. Supreme Court of United States. 488 U.S. 361, 404 (1989)
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similar mission or putting the Smithsonian under say the Department of the Interior in
the executive branch, or placing it under the Congress, like the Library of Congress. But
these alternatives remain unexplored and would involve a radical reformulation of the
Smithsonian’s functions and certainly its board. More appropriately, the Smithsonian is
likely to continue as has for 170 years, an early form of encroachment on the three bran-
ches theory of government, a bundle of contradictions and compromises based upon
historical idiosyncrasy and convenience, bereft of principle, but none-the-less eective
as the world’s largest and most popular museum, educational and research complex.
7. REFERENCES
BATTIATA, Mary. Saudi Gift Controversy at the Smithsonian. Washington Post, Washington, 9 oct.
1985. Available at:
controversy-at-the smithsonian/ac61fda89bf5-4398-9b78-296ed18e7678/>.
CURRIE, David P. The Smithsonian. The University of Chicago Law Review, Chicago, vol. 70, n. 1,
p. 65-71, jan./mar. 2003.
DELLINGER, Walter. The Constitutional Separation of Powers Between the President and Congress.
Opinion of the Oce of Legal Concern, Washington, vol. 20. p. 124-18, may 1996. Available at: <
https://www.justice.gov/sites/default/les/olc/opinions/1996/05/31/op-olc-v020-p0124_0.pdf>.
GOODE, George Brown (Ed.). The Smithsonian Institution, 1846-1896, The History of its First
Half Century. New York: De Vinne Press, 1897.
HIRSCH, Arthur. Smithsonian Cancels Exhibit on Atomic Bomb. Baltimore Sun Times,
Baltimore, jan. 31 1995. Available at:
features/1995031159_1_heyman-atomic-enola-gay>.
KMIEC, Douglas W. The Status of the Smithsonian Institution Under the Federal Property and Ad-
ministrative Services Act. Opinion of the Oce of Legal Concern, Washington, vol. 12, 122-127,
june 1988. Available at: .
MANNING, John F. Separation of Powers As Ordinary Interpretation. Harvard Law Review, Cam-
bridge, vol. 124, p. 1942-2040, 1939.
MITTAL, Anu K. Key Federal Agencies’ and the Smithsonian Institution’s eorts to Identify
and Repatriate Indian Human Remains and Objects. Available at:
sets/130/126466.pdf>.
SMITHSONIAN INSTITUTION. General History. Smithsonian Archives. Available at:
chives.si.edu/history/general-history>.
SMITHSONIAN INSTITUTION. Legal Nature of the Smithsonian. Available at:
legal history>.
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SMITHSONIAN INSTITUTION. Memorandum for the Director, Oce of Personnel Management
from Assistant Attorney General Ulman. Opinion of the Oce of Legal Concern, Washington,
vol. 3, 1979.
SMITHSONIAN INSTITUTION. Smithsonian Institution FY 2016 Budget Justication to Con-
gress. Available at: .
STRAUSS, Peter. Formal & Functional Approcaches to Separation of Powers Questions – A Foolish
Inconsistency? Cornell Law Review, New York, vol. 72, n. 3, p. 488-526, mar. 1987.
UNITED STATES. Memorandum for the Director, Oce of Personnel Management from Assistant
Attorney General Ulman. Opinion of the Oce of Legal Concern, Washington, vol. 3, 274-242,
1979.
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