### CONSTITUTIONALITY OF LEGISL ATION 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 CO UNSEL TO THE PRESIDENT

You have asked whether it would be consti tutional for Congress to enact legislation extending the term of Robert S. Mu eller, 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, appointed Mr. Mueller Director of the FBI on August 3, 2001. The statute providing for the Direct or’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 am ended 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 exte nd 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 establishmen t of offices, the determination of their functions and juri sdiction, 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.

Myers v. United States , 272 U.S. 52, 129 (1926) (emphasis adde d). 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 th e 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); Constitutionality of Legislation Extending the Terms of Office of United States Parole

Commissioners , 18 Op. O.L.C. 166 (1994) (“ Parole Commissioners ”); Whether Members of the Sentencing Commission Who Were A ppointed Prior to the Enactmen t 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) (“ Retirement Act ”); 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).Constitutionality of Legislation Extendi ng the Term of the FBI Director

Although Congress has the power to set office-ho lders’ 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 Pr esident “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 bey ond Congress’s authority to fix the terms of

service. See Parole Commissioners , 18 Op. O.L.C. at 167 (citing Buckley v. Valeo , 424 U.S. 1, 124-41 (1976)); Shoemaker v. United States , 147 U.S. 282, 300 (1893).

The traditional position of the Executive Branch has been that Congress, by extending an incumbent officer’s term, does not displace and ta ke over the President’s appointment authority, as long as the President remains free to remove th e officer at will and make another appointment. In 1951, for example, the Acting Attorney Gene ral concluded that C ongress 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 exte nd the terms of offices which it has created, subject, of course , to the President’s constituti onal power of appointment and

removal.” Displaced Persons Commission , 41 Op. Att’y Gen. at 90 (citation omitted). The Acting Attorney General “noted that such join t action by the Executive and the Congress in this field is not without precedent,” id. , and gave as examples the exte nsions of the terms of members of the Reconstruction Finance Corporation, see Reconstruction Finan ce Corporation Act, ch. 334, § 2, 62 Stat. 261, 262 (1948), and the Atomic Energy Commission, see Atomic Energy Act, ch. 828, § 2, 62 Stat. 1259, 1259 (1948). In both in stances, “no new nominations were submitted

to the Senate and the incumb ents 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 extendi ng 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 earl ier view, finding that Congress c ould 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 “pot ential tension” between Congress’s power “to set and amend the term of an office” and the prohibi tion 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 appoint ment of the incumbent to a new term, then it violates the Appointments Clause.” Id. “The classic example” of a stat ute raising the potential tension would be one lengthening the tenure of an in cumbent 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 a ppointing a successor—the only impediment being the constitutionally sanctioned one of Senate confirmation.” Id. In these

2Opinions of the Office of Legal Counsel in Volume 35

circumstances, the “legislation leaves the a ppointing authority—and incidental removal power— on precisely the same footing as it was prio r to the enactment of the legislation.” Id. (citations omitted). Because Parole Commissioners were removable at will, we concluded that the

extension of their term s was constitutional. See id. at 169-72.

The courts have gone even further in sustai ning congressional power to extend the terms of incumbents. They uniformly rejected the ar gument that Congress could not extend, by two to four years, the tenure of bankruptcy 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 exte nsion of term of o ffice 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 extendi ng 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 C ongress 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 Director’s term. As we have previously concluded, the FBI

Director is removable at the will of the President. See Memorandum for Stuart M. Gerson, Acting Attorney General, from Daniel L. Koffsky, Acting Assistant At torney 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 doe s not create such a restriction. See Parsons v. United States

, 167 U.S. 324, 342 (1897). Nor is there any groun d for inferring a restriction. Indeed, tenure protection for an officer with the FBI Director ’s broad investigative, administrative, and policymaking responsibilities woul d raise a serious constitutiona l question whether Congress had “impede[d] the President’s ability to perform his c onstitutional 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) (“Under the provisions of my amendment, there is no limitation on the constituti onal power of the President to remove the FBI Director from office within the 10-year term.”) (statement of Sen. Byrd); id. at 23,811 (“The FBI

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 in cumbents and more traditional forms of congressional appointments,” because “[b]oth implicate the identical constitutional evil—congressional selection of the individuals filling nonlegislative 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 reasoning, 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.

3Constitutionality of Legislation Extendi ng the Term of the FBI Director

Director is a highly placed figure in the executiv e branch and he can be removed by the President at any time, and for any reason that the Pres ident sees fit.”) (statement of Sen. Byrd). 2

Here, therefore, the issue is whether we conti nue to believe that th e approach outlined in our earlier opinions and particularly in Parole Commissioners is correct. In connection with the pending bill, it has been argued th at 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 offi cer, the President’s authority to remove him does not cure the defect. The Constitution forbids the appointment, whether or not the President may later act to undo it, and in practice the poli tical costs of undoing the extens ion 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 consent of the Senate, the respons ibility for selection of an indi vidual, legislation enabling an

office-holder to serve an extende d term without being reappointe d diffuses that responsibility among the President and the members of the House and Senate. 3

We disagree with this argument. We be gin with the fundament al observation that legislation extending a term “does not represent a formal 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 Dire ctor 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 appointment at variance with the Appointments Clause. Cf. Buckley , 424 U.S. at 124-41.

2 President Clinton, in fact, did remove FBI Director William S. Sessions. See Memorandum for Senate Committee on the Judiciary, from Vivian Chu, Legisl ative Attorney, Congression al 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).

4 For example, section 704 of the National Defense Authorization Act, Fiscal Year 1989, provided that “[n]otwithstanding the limitation” otherw ise requiring retirement for age, “the President may defer until October 1, 1989, the retirement of the of ficer serving as Chairman of the Joint Chie fs 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 th e retirement . . . of an officer who is the Chief of Chaplains or Deputy Chief of Chaplains of that officer’s armed fo rce,” 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

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Nor is the term extension contem plated by the pending legislation functionally the equivalent of a congressional a ppointment. Whether the extensi on of a term functions as an appointment depends on its effect on the Presiden t’s appointment power. If the extension of a term were to preclude the Presid ent from making an appointment that he otherwise 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 remo ve the officer and embark on the process of appointing a successor—the only impediment being the constitutionally sanc tioned one of Senate confirmation,” id. , the President has precisely the same appointment power as before the legislation. Congress has not take n over that power but has acte d within its own power to fix the term during which the officer serves. Because the President is free at any time to dismiss the FBI Director and, with the Sena te’s advice and consent, appo int a new Director, the pending legislation does not functionally deprive the Presid ent of his role in appo inting the Director under the Appointments Clause.

The proposed legislation, moreover, would leave with the Pres ident the “sole and undivided responsibility” for appointments. The Federalist No. 76 , at 455 (Alexander Hamilton) (Clinton Rossiter ed., 1961). If th e President signs the bi ll and allows the incu mbent 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 exercise d in the incumbent’s appointment—here, when President Bush appointed Director Mueller. Under the pending le gislation, 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 Obam a 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 Pres ident will have been able to remove him immediately, with or without cause. 5

We also disagree that term-extension legi slation violates the Appointments Clause because as a hypothetical matter it might impose some new political cost on the President. The relative political cost to the Pr esident of removing a term-extende d incumbent as compared to the costs presented by other decisions involving appointment matters is speculative. In any event, the Appointments Clause does not prohibit all meas ures 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 legislati on allows the exercise of the President’s

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.”).

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).

5Constitutionality of Legislation Extendi ng the Term of the FBI Director

“judgment and will” with respect to who shall serve as Director 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 th e earlier extensions applied to multi-member groups. In this respect, the pending bill might be thought more like an individual appointment.

But in Displaced Persons Commission , the terms of only two commissioners were extended, see 41 Op. Att’y Gen. at 88, and our opinion in Parole Commissioners stated that as few as three commissioners might benefit from the extension, see Parole Commissioners , 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 extensions at issue in thos e cases do not seem to have included, at least expressly, the merits of the individual office-hol ders. But although Director Mueller’s personal strengths are a key reason for the pending legislat ion, the need for stability in the Nation’s efforts against terrorism is also a signi ficant part of the justificati on. 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 th e Defense Department and Central Intelligence Agency, I believe continuity and stability at the FBI is critical at this time.” Press Release, Office of the Press Secretary, The White House, President Obama Proposes Extending Term for

FBI Director Robert Mueller (May 12, 2011). We do not belie ve (and, to our knowledge, no one has argued) that high regard fo r an office-holder disables C ongress from extending his term.

/s/

CAROLINE D. KRASS Principal Deputy Assistant Attorney General

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