General Counsel - Air National Guard - Legal Opinions (2005) Page: 4 of 153
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08/10/2005 12:04 FAX 2025140563 DOJ OLC 1 UU4
Base Closure Act (which under current law expires on April 15, 2006) serves as "the exclusive
authority for selecting for closure and realignment, or for carrying out any closure or realignment
of, a military installation inside the United States." Act 2909(a).2 The Act's scope is broad: It
defines "installation" as a "base, camp, post, station, yard, center, horneport facility for any ship,
or other activity under the jurisdiction of the Department of Defense, including any leased
facility." Id. 2910(4). And "[t]he term 'realignment' includes any action which both reduces
and relocates functions and civilian personnel positions but does not include a reduction in force
resulting from workload adjustments, reduced personnel or funding levels, or skill imbalances."
Id. 2910(5).
In addition to reaching broadly, the Act also establishes an "elaborate selection process"
for accomplishing its purpose, by assigning specific roles to several federal actors who are
subjected to rigid statutory deadlines. Dalton, 511 U.S. at 464 (opinion of Court). The process
for the 2005 round begins when the Secretary of Defense certifies to Congress that a need exists
to close and realign military installations and that such closures and realignments would "result
in annual net savings for each of the military departments." Act 2912(b)(1)(B). The process
may proceed thereafter only if, no later than March 15, 2005, the President nominates for Senate
consideration persons to constitute the Defense Base Closure and Realignment Commission. Id.
2912(d). Although the Commission's actions are expressly subject to the approval or
disapproval of the President (as explained below) and the Act does not restrict the removal of
commissioners, the Commission is "independent" of other federal departments, agencies, or
commissions. Id. 2902(a); see generally Removal of Holdover Officials Serving on the Federal
Housing Finance Board and the Railroad Retirement Board, 21 Op. O.L.C. 135, 135, 138 n.5
(1997); see also Memorandum for Alberto R. Gonzales, Counsel to the President, from M.
Edward Whelan III, Acting Assistant Attorney General, Office of Legal Counsel, Re: Holdover
and Removal of Members ofAmtrak 's Reform Board at 3-6 (Sept. 22, 2003) (Part II), available at
www.usdoj.goviolc/opinions.htm.
The next step after the nomination of commissioners is for the Secretary of Defense to
develop a list of the military installations in the United States that he recommends for closure or
realignment; he must submit that list to the Commission by May 16, 2005. Act 2914(a). In
preparing his list, the Secretary must "consider all military installations inside the United States
equally without regard to whether the installation has been previously considered or proposed for
closure or realignment by the Department." Id. 2903(c)(3)(A). The Secretary's
recommendations must be based on his previously established and issued "force-structure plan"
and a "comprehensive inventory of military installations." Id. 2912(a)(1). Congress also has
2 The Act makes an exception bfor closures and realignmet s not covered by 10 U.S.C. 2687. S e Act
* 2909(c)(2). Section 2687 applies to closures of military installations at which 300 or more civilians are emnaployed
and to realignments of such installations that involve a reduction by more than 1,000 (or 50 percent) of the civilian
personnel. In other words, small closures and realiments are not subject to the Act's exclusivity provision. This
does not mean, however, that such closures and realignments canno be carried out under the Act.
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United States. Defense Base Closure and Realignment Commission. General Counsel - Air National Guard - Legal Opinions (2005), text, January 6, 2006; (https://digital.library.unt.edu/ark:/67531/metadc25246/m1/4/: accessed April 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.