Extending the Term of the FBI Director ( 2011 )


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  •                Extending the Term of the FBI Director
    It would be constitutional for Congress to enact legislation extending the term of Robert
    S. Mueller, III, as Director of the Federal Bureau of Investigation.
    June 20, 2011
    MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
    You have asked whether it would be constitutional for Congress to en-
    act legislation extending the term of Robert S. Mueller, III, as Director of
    the Federal Bureau of Investigation (“FBI”). We believe that it would.
    President George W. Bush, with the Senate’s advice and consent, ap-
    pointed Mr. Mueller Director of the FBI on August 3, 2001. The statute
    providing for the Director’s appointment sets a 10-year term and bars
    reappointment. See Omnibus Crime Control and Safe Streets Act, Pub.
    L. No. 90-351, § 1101, 82 Stat. 197, 236 (1968), as amended by Crime
    Control Act, Pub. L. No. 94-503, § 203, 90 Stat. 2407, 2427 (1976),
    codified as amended at 28 U.S.C. § 532 note (2006). A bill now pending
    in Congress would extend Mr. Mueller’s term for two years.
    Under the Constitution, see U.S. Const. art. I, § 8, cl. 18, Congress has
    the power to create offices of the United States Government and to define
    their features, including the terms during which office-holders will serve:
    To Congress under its legislative power is given the establishment of
    offices, the determination of their functions and jurisdiction, the pre-
    scribing of reasonable and relevant qualifications and rules of eligi-
    bility of appointees, and the fixing of the term for which they are to
    be appointed, and their compensation—all except as otherwise pro-
    vided by the Constitution.
    Myers v. United States, 
    272 U.S. 52
    , 129 (1926) (emphasis added). In
    the exercise of this authority, Congress from time to time has extended
    the terms of incumbents. Opinions of the courts, the Attorneys General,
    and this Office have repeatedly affirmed the constitutionality of such
    extensions. See In re Investment Bankers, Inc., 
    4 F.3d 1556
    , 1562–63
    (10th Cir. 1993); In re Benny, 
    812 F.2d 1133
    , 1141–42 (9th Cir. 1987);
    In re Koerner, 
    800 F.2d 1358
    , 1366–67 (5th Cir. 1986); Constitutionali-
    ty of Legislation Extending the Terms of Office of United States Parole
    98
    Extending the Term of the FBI Director
    Commissioners, 
    18 Op. O.L.C. 166
     (1994) (“Parole Commissioners”);
    Whether Members of the Sentencing Commission Who Were Appointed
    Prior to the Enactment of a Holdover Statute May Exercise Holdover
    Rights Pursuant to the Statute, 
    18 Op. O.L.C. 33
     (1994); Displaced
    Persons Commission—Terms of Members, 41 Op. Att’y Gen. 88, 89–90
    (1951) (“Displaced Persons Commission”); Civil Service Retirement
    Act—Postmasters—Automatic Separation from the Service, 35 Op.
    Att’y Gen. 309, 314 (1927); see also The Constitutional Separation of
    Powers Between the President and Congress, 
    20 Op. O.L.C. 124
    , 153–
    57 (1996) (“Separation of Powers”) (discussing the opinions).
    Although Congress has the power to set office-holders’ terms, this
    power is subject to any limits “otherwise provided by the Constitution.”
    Myers, 
    272 U.S. at 129
    . Under the Appointments Clause, art. II, § 2,
    cl. 2, the President “shall nominate, and by and with the Advice and
    Consent of the Senate, shall appoint . . . Officers of the United States”; in
    the case of inferior officers, Congress may vest the appointment in the
    President alone, the heads of Departments, or the courts of law. If the
    extension of an officer’s term amounts to an appointment by Congress,
    the extension goes beyond Congress’s authority to fix the terms of ser-
    vice. See Parole Commissioners, 18 Op. O.L.C. at 167 (citing Buckley v.
    Valeo, 
    424 U.S. 1
    , 124–41 (1976) (per curiam)); Shoemaker v. United
    States, 
    147 U.S. 282
    , 300 (1893).
    The traditional position of the Executive Branch has been that Con-
    gress, by extending an incumbent officer’s term, does not displace and
    take over the President’s appointment authority, as long as the President
    remains free to remove the officer at will and make another appointment.
    In 1951, for example, the Acting Attorney General concluded that Con-
    gress by statute could extend the terms of two members of the Displaced
    Persons Commission: “I do not think . . . that there can be any question as
    to the power of the Congress to extend the terms of offices which it has
    created, subject, of course, to the President’s constitutional power of
    appointment and removal.” Displaced Persons Commission, 41 Op. Att’y
    Gen. at 90 (citation omitted). The Acting Attorney General “noted that
    such joint action by the Executive and the Congress in this field is not
    without precedent,” 
    id.,
     and gave as examples the extensions of the terms
    of members of the Reconstruction Finance Corporation, see Reconstruc-
    tion Finance Corporation Act, Pub. L. No. 80-548, § 2, 62 Stat. 261, 262
    99
    
    35 Op. O.L.C. 98
     (2011)
    (1948), and the Atomic Energy Commission, see Atomic Energy Act,
    Pub. L. No. 80-899, § 2, 62 Stat. 1259, 1259 (1948). In both instances,
    “no new nominations were submitted to the Senate and the incumbents
    continued to serve.” Displaced Persons Commission, 41 Op. Att’y Gen. at
    91.
    In 1987, without discussing this traditional view, this Office reversed
    course and concluded that a statute extending the terms of United States
    Parole Commissioners was “an unconstitutional interference with the
    President’s appointment power,” because “[b]y extending the term of
    office for incumbent Commissioners appointed by the President for a
    fixed term, the Congress will effectively reappoint those Commissioners
    to new terms.” Reappointment of United States Parole Commissioners,
    
    11 Op. O.L.C. 135
    , 136 (1987). Seven years later, however, we returned
    to the earlier view, finding that Congress could extend the terms of
    Parole Commissioners. See Parole Commissioners, 18 Op. O.L.C. at
    167–68. We noted that the extension of an incumbent’s term creates a
    “potential tension” between Congress’s power “to set and amend the term
    of an office” and the prohibition against its appointing officers of the
    United States, id., but that whether any conflict actually exists “depends
    on how the extension functions,” id. at 168. In particular, “[i]f applying
    an extension to an incumbent officer would function as a congressional
    appointment of the incumbent to a new term, then it violates the Ap-
    pointments Clause.” Id. “The classic example” of a statute raising the
    potential tension would be one lengthening the tenure of an incumbent
    whom the President may remove only for cause. Id. On the other hand, if
    Congress extends the term of an incumbent whom the President may
    remove at will, “there is no violation of the Appointments Clause, for
    here the President remains free to remove the officer and embark on the
    process of appointing a successor—the only impediment being the con-
    stitutionally sanctioned one of Senate confirmation.” Id. In these circum-
    stances, the “legislation leaves the appointing authority—and incidental
    removal power—on precisely the same footing as it was prior to the
    enactment of the legislation.” Id. (citations omitted). Because Parole
    Commissioners were removable at will, we concluded that the extension
    of their terms was constitutional. See id. at 169–72.
    The courts have gone even further in sustaining congressional power to
    extend the terms of incumbents. They uniformly rejected the argument
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    Extending the Term of the FBI Director
    that Congress could not extend, by two to four years, the tenure of bank-
    ruptcy judges, even though those judges were removable only for cause.
    In the most prominent of these cases, In re Benny, the Ninth Circuit held
    that “the only point at which a prospective extension of term of office
    becomes similar to an appointment is when it extends the office for a very
    long time.” 
    812 F.2d at 1141
    . Because of our concerns about Congress’s
    extending the terms of officers with tenure protection, we have questioned
    the reasoning of that opinion, see Separation of Powers, 20 Op. O.L.C. at
    155 & nn.89, 90, but the opinion does support the power of Congress to
    enact legislation that would lengthen the term of the incumbent FBI
    Director. 1
    In any event, even under the longstanding Executive Branch approach,
    which makes it relevant whether a position is tenure-protected, Congress
    would not violate the Appointments Clause by extending the FBI Direc-
    tor’s term. As we have previously concluded, the FBI Director is remova-
    ble at the will of the President. See Memorandum for Stuart M. Gerson,
    Acting Attorney General, from Daniel L. Koffsky, Acting Assistant
    Attorney General, Office of Legal Counsel, Re: Removal of the Director
    of the Federal Bureau of Investigation (Jan. 26, 1993). No statute purports
    to restrict the President’s power to remove the Director. Specification of a
    term of office does not create such a restriction. See Parsons v. United
    States, 
    167 U.S. 324
    , 342 (1897). Nor is there any ground for inferring a
    restriction. Indeed, tenure protection for an officer with the FBI Director’s
    broad investigative, administrative, and policymaking responsibilities
    would raise a serious constitutional question whether Congress had “im-
    1 Concurring in the judgment in In re Benny, Judge Norris argued that there was no
    “principled distinction between congressional extensions of the terms of incumbents and
    more traditional forms of congressional appointments,” because “[b]oth implicate the
    identical constitutional evil—congressional selection of the individuals filling nonlegisla-
    tive offices.” 
    812 F.2d at 1143
     (footnotes omitted). This argument would seem to deny
    that any extension of an incumbent’s term could be constitutional. Judge Norris’s reason-
    ing, however, may depend in part on the protected tenure of the bankruptcy judges in In
    re Benny whose terms were extended: “By extending the terms of known incumbents,
    Congress can guarantee that its choices will continue to serve for as long as Congress
    wishes, unless the officers can be removed.” 
    Id.
     (emphasis added). A footnote to this
    sentence discusses the circumstances in which Congress may confer tenure protection on
    officers, 
    id. at 1143 n.5,
     but does not acknowledge the President’s power to remove an
    officer who is serving at will.
    101
    
    35 Op. O.L.C. 98
     (2011)
    pede[d] the President’s ability to perform his constitutional duty” to take
    care that the laws be faithfully executed. Morrison v. Olson, 
    487 U.S. 654
    , 691 (1988). The legislative history of the statute specifying the
    Director’s term, moreover, refutes any idea that Congress intended to
    limit the President’s removal power. See 122 Cong. Rec. 23,809 (1976)
    (statement of Sen. Byrd) (“Under the provisions of my amendment, there
    is no limitation on the constitutional power of the President to remove the
    FBI Director from office within the 10-year term.”); 
    id. at 23,
    811 (state-
    ment of Sen. Byrd) (“The FBI Director is a highly placed figure in the
    executive branch and he can be removed by the President at any time, and
    for any reason that the President sees fit.”). 2
    Here, therefore, the issue is whether we continue to believe that the ap-
    proach outlined in our earlier opinions and particularly in Parole Commis-
    sioners is correct. In connection with the pending bill, it has been argued
    that any legal act causing a person to hold an office that otherwise would
    be vacant is an “Appointment” under the Constitution, art. II, § 2, cl. 2,
    and thus requires use of the procedure laid out in the Appointments
    Clause. According to the argument, if legislation appoints an officer, the
    President’s authority to remove him does not cure the defect. The Consti-
    tution forbids the appointment, whether or not the President may later act
    to undo it, and in practice the political costs of undoing the extension
    through removal of the incumbent may be prohibitive. Furthermore,
    whereas the process under the Constitution of nomination, confirmation,
    and appointment places on the President alone, with the advice and con-
    sent of the Senate, the responsibility for selection of an individual, legisla-
    tion enabling an office-holder to serve an extended term without being
    reappointed diffuses that responsibility among the President and the
    members of the House and Senate. 3
    We disagree with this argument. We begin with the fundamental obser-
    vation that legislation extending a term “does not represent a formal
    2  President Clinton, in fact, did remove FBI Director William S. Sessions. See Memo-
    randum for Senate Committee on the Judiciary, from Vivian Chu, Legislative Attorney,
    Congressional Research Service, Re: Director of the FBI: Position and Tenure at 5 &
    n.39 (June 1, 2011).
    3 See The President’s Request to Extend the Service of Director Robert Mueller of the
    FBI Until 2013: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (2011)
    (statement of John Harrison, Professor of Law, University of Virginia School of Law).
    102
    Extending the Term of the FBI Director
    appointment by Congress.” Separation of Powers, 20 Op. O.L.C. at 156.
    Director Mueller holds an office, and if his term is extended by Congress,
    he will continue to hold that office by virtue of appointment by President
    Bush, with the advice and consent of the Senate, in strict conformity with
    the requirements of the Appointments Clause. Rather than an exercise of
    the power to select the officer, the pending legislation, as a formal matter,
    is an exercise of Congress’s power to set the term of service for the office.
    That the legislation here would enable Director Mueller to stay in an
    office he would otherwise have to vacate does not in itself constitute a
    formal appointment, any more than Congress makes an appointment when
    it relieves an individual office-holder from mandatory retirement for age,
    thereby lifting an impending legal disability and enabling him to retain his
    position. 4 In neither situation has Congress prescribed a method of ap-
    pointment at variance with the Appointments Clause. Cf. Buckley, 
    424 U.S. at 124
    –41.
    Nor is the term extension contemplated by the pending legislation func-
    tionally the equivalent of a congressional appointment. Whether the
    extension of a term functions as an appointment depends on its effect on
    the President’s appointment power. If the extension of a term were to
    preclude the President from making an appointment that he otherwise
    4 For example, section 704 of the National Defense Authorization Act, Fiscal Year
    1989, provided that “[n]otwithstanding the limitation” otherwise requiring retirement for
    age, “the President may defer until October 1, 1989, the retirement of the officer serving
    as Chairman of the Joint Chiefs of Staff for the term which began on October 1, 1987.”
    Pub. L. No. 100-456, 102 Stat. 1918, 1996–97 (1988). Without that legislation, the
    Chairman would have had to retire from active service, and the office of Chairman of the
    Joint Chiefs of Staff would have become vacant. Similarly, section 504 of the National
    Defense Authorization Act for Fiscal Year 1998, provided that a service Secretary could
    “defer the retirement . . . of an officer who is the Chief of Chaplains or Deputy Chief of
    Chaplains of that officer’s armed force,” as long as the deferment did not go beyond the
    month that the officer turned 68 years old. Pub. L. No. 105-85, 111 Stat. 1629, 1725
    (1997). Congress, moreover, has twice enacted statutes contemplating that, by specific
    later legislation, it would raise the retirement age of individual officers in the civil
    service. See Pub. L. No. 89-554, § 8335(d), 80 Stat. 378, 571 (1966) (“The automatic
    separation provisions of this section do not apply to—(1) an individual named by a statute
    providing for the continuance of the individual in the [civil] service.”); Federal Executive
    Pay Act, Pub. L. No. 84-854, § 5(d), 70 Stat. 736, 749 (1956) (“The automatic separation
    provisions of this section shall not apply to any person named in any Act of Congress
    providing for the continuance of such person in the [civil] service.”).
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    35 Op. O.L.C. 98
     (2011)
    would have the power to make, Congress would in effect have displaced
    the President and itself exercised the appointment power. We believe that
    such a displacement can take place when Congress extends the term of a
    tenure-protected officer. See Parole Commissioners, 18 Op. O.L.C. at
    168. If, however, “the President remains free to remove the officer and
    embark on the process of appointing a successor—the only impediment
    being the constitutionally sanctioned one of Senate confirmation,” id., the
    President has precisely the same appointment power as before the legisla-
    tion. Congress has not taken over that power but has acted within its own
    power to fix the term during which the officer serves. Because the Presi-
    dent is free at any time to dismiss the FBI Director and, with the Senate’s
    advice and consent, appoint a new Director, the pending legislation does
    not functionally deprive the President of his role in appointing the Direc-
    tor under the Appointments Clause.
    The proposed legislation, moreover, would leave with the President the
    “sole and undivided responsibility” for appointments. The Federalist No.
    76, at 510 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). If the Presi-
    dent signs the bill and allows the incumbent to remain in office, the “sole
    and undivided responsibility” of a single official, as well as the Senate’s
    advice and consent, will still have been exercised in the incumbent’s
    appointment—here, when President Bush appointed Director Mueller.
    Under the pending legislation, Director Mueller for the next two years
    would continue to serve as a result of that exercise of responsibility, just
    as he has since January 20, 2009, when President Obama took office.
    Throughout that time, each President sequentially will have had an addi-
    tional “sole and undivided responsibility” for Director Mueller’s service,
    because each President will have been able to remove him immediately,
    with or without cause. 5
    We also disagree that term-extension legislation violates the Appoint-
    ments Clause because as a hypothetical matter it might impose some new
    political cost on the President. The relative political cost to the President
    of removing a term-extended incumbent as compared to the costs present-
    ed by other decisions involving appointment matters is speculative. In any
    5 See The President’s Request to Extend the Service of Director Robert Mueller of the
    FBI Until 2013: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (2011)
    (statement of William Van Alstyne, Professor of Law, Marshall-Wythe Law School).
    104
    Extending the Term of the FBI Director
    event, the Appointments Clause does not prohibit all measures that might
    impose a political cost, but rather insures that Congress leave “scope for
    the judgment and will of the person or body in whom the Constitution
    vests the power of appointment.” Civil-Service Commission, 13 Op. Att’y
    Gen. 516, 520 (1871). The pending legislation allows the exercise of the
    President’s “judgment and will” with respect to who shall serve as Direc-
    tor of the FBI and for that reason is consistent with the Appointments
    Clause.
    Nor do we believe that we should depart from our earlier view because
    the present bill would apply only to Director Mueller, while the earlier
    extensions applied to multi-member groups. In this respect, the pending
    bill might be thought more like an individual appointment. But in Dis-
    placed Persons Commission, the terms of only two commissioners were
    extended, 41 Op. Att’y Gen. at 88, and our opinion in Parole Commis-
    sioners stated that as few as three commissioners might benefit from the
    extension, 18 Op. O.L.C. at 167. The difference between those cases and
    this one does not appear significant. To be sure, the grounds for the exten-
    sions at issue in those cases do not seem to have included, at least ex-
    pressly, the merits of the individual office-holders. But although Director
    Mueller’s personal strengths are a key reason for the pending legislation,
    the need for stability in the Nation’s efforts against terrorism is also a
    significant part of the justification. As the President said in announcing
    the proposal, “[g]iven the ongoing threats facing the United States, as well
    as the leadership transitions at other agencies like the Defense Department
    and Central Intelligence Agency, I believe continuity and stability at the
    FBI is critical at this time.” Office of the Press Secretary, The White
    House, Press Release, President Obama Proposes Extending Term for
    FBI Director Robert Mueller (May 12, 2011). We do not believe (and, to
    our knowledge, no one has argued) that high regard for an office-holder
    disables Congress from extending his term.
    CAROLINE D. KRASS
    Principal Deputy Assistant Attorney General
    Office of Legal Counsel
    105