Sunday, July 10, 2011
The Office of Legal Counsel released an opinion last month that concluded that congressional extension of the term for FBI Director Robert S. Mueller III does not violate the Constitution.
Director Mueller was nominated by President Bush and unanimously confirmed by the Senate. He was sworn in on September 4, 2001. But the Director position only has a ten-year life; Mueller's appointment would thus expire on September 4, 2010. President Obama proposed extending the term by two years in May; Senator Leahy introduced legislation (now pending in the Senate) that would do just that.
The OLC opined that Congress has authority to enact Leahy's bill under Article I, Section 8, Clause 18, which authorizes Congress to establish offices and fix their terms:
To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed, and their compensation--all except as otherwise provided by the Constitution.
According to the OLC, the extension is just an extension of Mueller's original appointment by President Bush; it's not a new congressional appointment--an action that would surely unconstitutionally interfere with the President's authority under the Appointments Clause. (The Appointments Clause vests the President with authority to nominate officers and, with the advice and consent of the Senate, to appoint them.)
The OLC for one brief, seven-year period (1987 to 1994) did hold the view that congressional extensions for incumbent officers were new appointments, thus violating the Appointments Clause. But in 1994 the Office re-adopted the traditional view, "that Congress, 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." Op. at 2. But under the traditional view, Congress may not extend the term of those offices with protection above at-will employment, because such an extension would mean that the President couldn't replace the incumbent with a nominee of his or her choice. (The courts do not seem to distinguish by tenure-protection and have upheld congressional extensions even of protected offices, such as bankruptcy judges. See, e.g., In re Benny, 812 F.2d 1133, 1141 (9th Cir. 1987).)
The OLC interprets the FBI Director's appointment not to restrict the President's authority to fire the incumbent, and therefore a congressional extension does not violate the Appointments Clause. (It of course wouldn't violate the Appointments Clause under the Ninth Circuit's approach in In re Benny either.)