December 1, 2009
"Independent" Officer Subject to At-Will Removal, OLC Opines
The Office of Legal Counsel late last month opined that the President may remove the Federal Coordinator for the Alaska Natural Gas Transportation Projects at will, even though the Office of the Federal Coordinator is by statute "an independent office in the executive branch," and even though the Federal Coordinator by statute has a fixed period in office.
Congress created the office to coordinate federal agencies' efforts to facilitate the transportation of natural gas from the Alaskan North Slope. Under 15 U.S.C. Sec. 720(d)(a), the office is "independent"; under 15 U.S.C. Sec. 720(d)(b)(1), the office enjoys a term "to last until 1 year following the completion of the [natural gas pipeline] project . . . ."
The OLC wrote that neither the statutory designation as "independent" nor the statutory period of the office impedes the President's power to remove the Coordinator at will, at any time. The OLC:
First, the Supreme Court has long held fixed terms to impose a limit on service but not to imply tenure protection. Parsons v. United States (President can remove United States Attorneys even during their appointed four-year terms) . . . .
Second . . . [a]s we observed with respect to similar language, "[a]ll that should be inferred from the status of an 'independent agency' is that the entity is not located within another department or agency." FHFB/RRB Removal at 4 n.5. . . . .
In short, "[b]ecause Congress did not explicitly provide tenure protection to the Federal Coordinator, the President . . . may remove her without cause."
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