Delegation of Authority to State Governors in End-User Gasoline Allocation Program

May 25, 1979

79-37 MEMORANDUM OPINION FOR THE SECRETARY OF ENERGY Emergency Petroleum Allocation Act of 1973 (15 U.S.C. § 751)—The President—Constitutional Law (Article II, Section 2, Clause 2)—Delegation of Authority to State Governors in End-user Gasoline Allocation Program

This responds to your request for our opinion regarding several ques­ tions arising from a proposed delegation of powers under the Emergency Petroleum Allocation Act of 1973 (EPAA), 15 U.S.C. § 751 et seq.: First, whether the President may constitutionally delegate powers under EPAA to the Governors of the several States and whether the Governors can exer­ cise these powers in the absence of any State enabling legislation or in the presence of State legislation affirmatively prohibiting the exercise o f such powers; second, whether the substantive powers proposed to be delegated to the Governors are within the scope of power delegated to the President by EPAA. We conclude that delegation of specific powers to the Gover­ nors on a permissive basis would clearly be authorized except in situations in which constitutional provisions of the State prevented the exercise of such Federal powers by the Governor.

I. The Constitutionality of Delegating Federal Power to a Governor The delegation of power by Executive order under the EPAA to the Governors of the several States raises two distinct constitutional issues.

First, whether a Governor may constitutionally be delegated the power under a Federal statute in order to implement and enforce Federal law.

Second, whether such a delegation is consistent with the “ state sover­ eignty” values embodied in the Tenth Amendment in the absence of State legislation supportive of the delegations or in the presence of prohibitory State statutory or constitutional provisions.

The Governors of the several States may be delegated the power to implement and enforce Federal substantive law. It is settled that State of­ ficers are under a constitutional obligation to abide by Federal law, see, Coopery. Aaron, 358 U.S. 1 (1958), and that at least some Federal power may be delegated to private citizens, see, Currin v. Wallace, 306 U.S. 1 (1939). In addition, so long as the President retains the authority to withdraw power once delegated, as he has done here, his prerogatives under Article II, § 2, C l. 2, to select and control those who will implement Federal law is preserved.1 The only substantial question raised by the pro­ posed delegation relates to the impact it might have on the sovereign status of the States in our federal system. Cf., National League o f Cities v. Usery, 426 U.S. 833 (1976).

The salient feature of the delegation in regard to the Tenth Amendment is that each Governor will be free to decline the delegation for any or no reason at all. Thus, unlike the situation initially presented to the Supreme Court in Environmental Protection Agency v. Brown, 431 U.S. 99 (1977), the executive branch of any State is completely free to accept or reject the responsibilities attendant to any delegation of Federal power by the Presi­ dent. Given the permissive nature of the delegation, we do not believe that the concerns expressed by the several Courts of Appeals regarding the Tenth Amendment implications of the Clean Air Act and that Act’s im­ position of certain duties on the States are present here. See, e.g., Brown v. Environmental Protection Agency, 521 F. (2d) 827, 837-42, (9th Cir. 1975), judgment vacated, 431 U.S. 99 (1977). There, the Ninth Circuit sug­ gested quite strongly that a Federal statute requiring a State to expend State funds and utilize State personnel to enforce certain provisions of the Clean Air Act would present substantial Tenth Amendment problems. We do not believe that the voluntary assumption of such Federal responsi­ bilities by State officers stands on the same footing as the mandatory re­ quirements of the regulations issued by the Environmental Protection Agency pursuant to the Clean Air A ct.2 Indeed, we believe there is a con­ stitutional presumption that a State officer will enforce Federal laws when called upon to do so, see, Cooper v. Aaron, supra. Thus, at least where no State statutory or constitutional law is to the contrary, the chief executive of a State may be delegated the power to exercise the contemplated func­ tions under § 5(b) of the EPAA.

Where, however, the executive authority of a State is explicitly pro­ hibited by State law from assuming such functions, we doubt that a

Governor can accept a delegation to perform these Federal functions. The threshold inquiry is whether Congress would have intended S*ate law to be preempted by the EPAA. Section 6(b) of that Act, 15 U.S.C. § 755(b), deals specifically with the subject of preemption, but does not suggest a congressional intent to preempt the kind of State law that would be in­ volved here. Because the control of a State’s executive branch by its legislature, including the devotion of State officers to duties other than those prescribed by the State legislatures, appears to us to be a funda­ mental aspect of State sovereignty under the Tenth Amendment. We believe that EPAA should not b£ read, and probably cannot be read, to ef­ fect such preemption. We think that the specificity of the preemption pro­ vision contained in the EPAA, which clearly does not contemplate the kind of preemption involved here, coupled with the substantial constitu­ tional question that would be presented, were the EPAA read to preempt such State law, would be decisive on this point.3 We therefore conclude that although power under the EPAA may be delegated by Executive order to Governors on a permissive basis, such a delegation could not be effected in contravention of State law.

II. The Power to Require End-user Allocation of Gasoline Under EPAA Under the proposed Executive order, a Governor would be empowered to require motor-gasoline retail sales outlets in his State or a locality thereof to supply gasoline to vehicles on an “ odd-even plate number basis,” to require purchasers of gasoline to purchase a specified minimum amount of gasoline, and finally to require retailers to be open or closed for the sale of gasoline at specified times of the day or on specified days. The question is whether EPAA authorizes the type of such end-user allocation controls.

This question can be subdivided into two parts: First, whether EPAA authorizes the application of mandatory allocation measures applicable to end-users; second, if EPAA does authorize these, whether it authorizes the specific type of powers proposed to be delegated.

End-user Allocation Under § 4 o f EPAA, 15 U.S.C. § 753, the President was directed to

1 The substantiality o f the constitutional question presented is apparent under all the Courts o f Appeals decisions consolidated for review in the Supreme C ourt in Environmental Protection Agency v. Brown, supra. Certainly, the requirement that the Governor o f a State perform Federal duties is one that could detract substantially from his ability to perform State duties imposed on him by State law. Indeed, it is difficult to conceive o f a m ore signifi­ cant infringement on State authority than to conscript the Governor o f a State, even a willing G overnor, into the Federal service in contravention o f State law reserving the services o f the Governor to the people o f his Slate. establish a “ mandatory allocation” program by regulation. As explained in the Conference Report on the Act: The mandatory allocation program will operate to compel the al­ location of product throughout the various levels of the petroleum market. It may be necessary, in selective cases, to compel the allocation of product to particular end-users, such as hospitals, units of government, or persons engaged in energy production and transportation; but it is not generally expected that the regulation promulgated by the President will be burdened with the complex­ ities of assigning fuels to users unless such assignment is necessary to carry out the purposes of the Act. When required, however, it is intended that the President would have full authority under this Act to identify permissible uses of covered fuels and to restrict the amounts which may be made available to such uses.4 In 1974, the Federal Energy Administration (now the Federal Energy Regulatory Commission), exercising the power granted by § 4 of EPAA, promulgated regulations specifically covering the allocation of certain petroleum products to end-users. See 10 CFR §§ 211.10-211.17, reprinted in 39 F.R. 35511-19 (Oct. 1, 1974). Thus, from an early date the agency charged with exercising the power of allocation clearly read that statute as authorizing allocation of various petroleum products covered by the Act to end-users. This evidence is significant because it is a familiar rule of statutory construction that an agency’s contemporaneous interpretation of a statute is normally given great weight. See, Maynard v. Elliott, 283 U.S. 273 (1931). In connection with its consideration of what ultimately became the Energy Policy and Conservation Act, 42 U.S.C. §§ 6261 et seq., the Congress reviewed in some detail the allocation regulations that had been issued by the Federal Energy Administration. See H. Rept.

94-340, 94th Cong., 1st sess., 65-69 and 185-203 (1975). The conse­ quences of this review were the reenactment of EPAA and the addition to it of additional tools to be used by the President to deal with energy alloca­ tion and shortages. Under such circumstances, the contemporaneous in­ terpretation of the EPAA in 1974 is “ presumptively the correct interpreta­ tion of the law.” See 2A Sutherland, Statutory Construction § 49.09 (4th ed. 1973); Cammarano v. United States, 358 U.S. 498, 508-09 (1959). We believe that the prior interpretations of the EPAA would be viewed as cor­ rect interpretations and clearly within the scope of EPA A .5 Specific End-user Controls In its consideration of the proposed EPCA in 1975, the House

This language, coupled with the broad authority conferred on the Presi­ dent by § 4 as explained by the language quoted above from the conference report, provides substantial support for a determination that the controls that would be authorized by the proposed Executive order were “ necessary” to carry out the purposes of EPA A.6 L eon U lm an Deputy Assistant Attorney General Office o f Legal Counsel

‘ The Tem porary Emergency court o f Appeals suggested in dictum that § 4 would provide a basis for a regulation that would have provided for preferential treatm ent by gasoline retailers for identifiable commercial customers. See, Reeves v. Simon, 507 F. (2d) 455, 461 (1974), cert, denied, 420 U .S. 991 (1975). The Reeves case is necessarily grounded on the proposition that EPA A permits the regulation o f gasoline retailers as part o f a program o f end-user allocation.