Barr)
You have asked for our opinion as to whether the Constitution in any way limits the authority of the federal government to submit to binding arbitration.1 Specifically, you have asked us to explain and expand on advice we issued on September 19, 1994, in which we confirmed our earlier oral advice that “the Office of Legal Counsel no longer takes the view that the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, bars the United States from entering into binding arbitration.” Memorandum from Dawn Johnsen, Deputy Assistant Attorney General, to David Cohen, Director, Commercial Litigation Branch, Civil Division, re: Binding Arbitration (Sept. 19, 1994).2 Below, we reiterate this conclusion and, pursuant to your request, set forth the reasoning by which we reached it. In addition, we consider, again pursuant to your request, the various other constitutional provisions that may be implicated when the federal government enters into binding arbitration. We should point out, however, that Executive Order No. 12778 remains in effect. Look for 56 Fed. Reg. 55195 (1991). That order forbids litigation counsel for federal agencies from seeking or agreeing to enter into binding arbitration. Id. § 1(c)(3). Therefore, while a constitutionally valid statute may compel litigation counsel to enter into binding arbitration, litigation counsel may not voluntarily agree to binding arbitration.3
Sawyer
1 Several components of the Department of Justice have submitted comments on the subject of binding arbitration. See Memorandum from Carol DiBattiste, Director, Executive Office for United States Attorneys, to Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, re: Sober dating Binding Arbitration Involving the Federal Government as a Party (Mar. 1, 1995) (“EOUSA memorandum”); Memorandum from Frank W. Hunger, Assistant Attorney General, Civil Division, to Walter Dellinger, Assistant Attorney General, Office of Legal Counsel. re: Constitutionality of Binding Arbitration Involving the Federal Government as a Party (Feb. 28, 1995) (“Civil Division memorandum”); Memorandum from Lois J. Schiffer, Assistant Attorney General, Environment and Natural Resources Division, to Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, re: Binding Arbitration Involving the Federal Government as a Party (Feb. 24, 1995) (“ENRD memorandum”).
2 The Office of Legal Counsel has never issued an opinion on the matter. Then-Assistant Attorney General for the Office of Legal Counsel William Barr, however, testified that the Appointments Clause would prohibit the government from entering into binding arbitration unless arbitrators were appointed by one of the methods described in that Clause, which they typically are not. See Hearing before the Subcommittee on Oversight of Government Management of the Senate committee on Governmental Affairs Regarding the Use of Alternative Dispute Resolution by Federal Agencies ( P. Barr); Hearing before the Subcommittee on Administrative Law and Government Relations of the House Committee on the Judiciary Regarding the Use of Alternative Dispute Resolution by Federal Agencies ( P. In addition, the Civil Division has issued a manual entitled “Guidance on the Use of Alternative Dispute Resolution for Litigation in the Federal Courts” (Aug. 1992). That manual asserted that “[t]he Government cannot enter into agreements to the Civil Division has issued a manual entitled “Guidance on the Use of Alternative Dispute Resolution for Litigation in the Federal Courts” (Aug. 1992). That manual asserted that “[t]he Government cannot enter into agreements to participate in binding arbitration.” Id. at 4. The legal basis cited for this assertion was the Appointments Clause. Id. at 4 n.8.
3 The President’s power is at its lowest ebb where the President issues an executive order that is contrary to other law. See Youngstown Piece Pipe Co. v. , 343 U.S. 579 (1952). For this reason, we doubt that Exec. Order No. 12778 is meant to forbid entering into binding arbitration where there is a statutory or other legal obligation to do so. So, for instance, if the Federal Arbitration Act, 9 U.S.C. § 1 et seq., were to require the enforcement of a contractual binding arbitration provision, we would not interpret Executive Order No. 12778 as attempting to override this statute.
