Jonathan H. Adler asks over at the Volokh Conspiracy: May Congress Extend the FBI Director’s Term?
The question arises because President Obama has requested a two year extension for Mueller’s term (see here for details).
Adler writes:
On Wednesday, the Senate Judiciary Committee held a hearing on the President’s request, at which two prominent constitutional law professors considered whether such an extension would be constitutional. William & Mary’s William Van Alsytne testified that extending the FBI director’s term through legislation would be “wholly constitutional.” The University of Virginia’s John Harrison, on the other hand, suggested that extending the Director’s term would raise serious constitutional concerns under the Appointments Clause. According to Harrison, such legislation “would be inconsistent with the Constitution because it would seek to exercise through legislation the power to appoint an officer of the United States, a power that may be exercised only by the President, a head of department, or a court of law.” Should the President and Congress wish to keep Mueller in his position, Harrison suggested, other means would be required for it to be constitutional.
Adler leaves the question open, as he does not answer the question in his post title.
Now, I must confess that when I heard that the President was seeking an extension of Mueller’s term, it struck me as a bit odd. First, I am not a big fan of the notion that anyone is the indispensible man (or woman). If we can change SecDef, CIA Director, SecState, or, for that matter, POTUS with more frequency than once a decade, surely we can find someone qualified for to replace the current FBI Director.
It is also a politically odd move for Obama: to request a two-year extension is to put the replacement after the termination of his current term in office. In other words, Obama currently has the power to appoint a Director for a ten year term but in asking for an extension he is running the risk of not having a long-term impact on the position, as there is the real chance of losing the election in 2012. Usually politicians prefer the bird in the hand, as opposed to that which remains in the bush.
Since the Constitution is silent on the FBI Director’s position (and, indeed, on the FBI itself) and because said institution, as well as the process by which the job of Director is to be filled, is wholly a creation of the legislature, it strikes me as odd to assume that the legislature would lack to power to make alternations, either permanent or temporary, to what it, itself, had created (and created with full constitutional authority). Indeed, the ten-year term and the entire process of nomination and confirmation is a creation of statute, not the constitution.
Indeed, the process dates to a 1968 law (with amendment, including the 10-year limit in 1976) that came about in response to the lengthy (to put it mildly) tenure in office of J. Edgar Hoover (who held the post for 48 years). Again: if the process is the result of legislation (which it is) than the Congress can change it at will (and without running afoul of any constitutionality questions).
The reference to the constitutionality of the move as it relates to the Appointments Clause strikes me a non-starter because, again, a process created by legislation can be changed by legislation. And, indeed, it was Congress’ choice to associate the FBI Director’s position with that procedure. Not all jobs in Washington use that process for appointment.
The only issues I can see is the notion that since Mueller’s original appointment was conferred, under the law, by a process of Senate confirmation (and therefore linked to the procedure in the Appointments Clause) that the full Congress cannot now extend the term without altering the law. However, this strikes me as an issue of figuring out the proper procedure rather than one of constitutionality. For example, why couldn’t the whole Congress vote for an extension package and then the Senate vote for the extension? Or, for that matter, why can’t the legislation be altered in any number of ways?
Further, it is the President who is making the request, and not the legislature acting on its own, so the spirit of the Appointments Clause strikes me as intact here.
Still, the salient point is that the issue at hand is really more one of statute than of the text of the Constitution.
And for those unfamiliar, here’s clause in question (Article 2, Section 2):
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls…
h/t: Chris Lawrence’s FB feed.
