### REMOVABILITY OF THE FEDERAL COORDI NATOR FOR ALASKA
NATURAL GAS TRANSP ORTATION PROJECTS

The Federal Coordinator for the Alaska Na tural Gas Transportation Projects serves at the pleasure of the President and thus may be removed at the President’s will.

October 23, 2009

MEMORANDUM OPINION FOR THE
PRINCIPAL DEPUTY COUNSEL TO THE PRESIDENT

This memorandum confirms oral advice about the removability of the Federal
Coordinator for the Alaska Natu ral Gas Transportation Projects (“Federal Coordi nator” or the “Coordinator”). Specifically, you asked us whether the statute establishing the Office of the Federal Coordinator, 15 U.S.C. § 720d (2006), restricts the President’s power to remove the Coordinator. As we previously explained in ou r oral advice and now expl ain in greater detail,
we believe that the Federal Coordinator serves at the pleasure of the Pr esident and thus may be
removed at the President’s will.

Congress enacted the Alaska Natural Gas Pipeline Act (“ANGPA” or “the Act”) to encourage the speedy construction of a pipeline carrying natural gas from the Alaskan North Slope to the contiguous United States. See Pub. L. No. 108-324, Div. C, 118 Stat. 1255 (2004); see generally Exxon Mobil Corp. v. FERC , 501 F.3d 204, 207 (D.C. Cir. 2007). The Act
established the Office of the Fede ral Coordinator for Alaska Natu ral Gas Transportation Projects “as an independent office in the executive branch.” ANGPA § 106(a) , 15 U.S.C. § 720d(a) (2006). The Office is “headed by a Federal C oordinator” “who shall be appointed by the President, by and with advice a nd consent of the Senate, to serv e a term to last until 1 year following the completion of the [natural gas pipeline] project referred to in section 720a of this title.” 15 U.S.C. § 720d(b)(1). The Act furt her provides that the C oordinator “shall be responsible for – (1) coordinating the expeditious discharge of a ll activities by Federal agencies with respect to an Alaska natural gas transpor tation project; and (2) ensuring the compliance of Federal agencies with the pr ovisions of this chapter.” Id. § 720d(c).

Critically, the Act does not se t out any preconditions for th e removal of the Federal Coordinator. As a general matter, “[i]n the abse nce of a specific provision to the contrary, the power of removal from office is incide nt to the power of appointment.” Keim v. United States, 177 U.S. 290, 293-94 (1900); cf. Armstrong v. Bush , 924 F.2d 282, 289 (D.C. Cir. 1991) (“When Congress decides purposefully to enact legislation restricting or re gulating presiden tial action, it must make its intent clear.”). This “rule of constitutional and statutor y construction” recognizes that “those in charge of and responsible for ad ministering functions of government who select their executive subordinates, need in meeting th eir responsibility to have the power to remove those whom they appoint.” Myers v. United States , 272 U.S. 52, 119 (1926). These principles support the inference that an officer serves at the pleasure of the President where Congress has not plainly provided for it. See

, e.g. , The Constitutional Separati on of Powers Between the President and Congress (“ Separation of Powers ”), 20 Op. O.L.C. 124, 170 (1996); see also id

. at 172-73 (“[B]ecause the [officer ]’s tenure is not protected by an explicit for-cause removalOpinions of the Office of Legal Counsel in Volume 33

limitation, . . . we therefore infer that the Presiden t has at least the formal power to remove the [officer] at will.”); Removal of Holdover Officials Serving on the Federal Housing Finance
Board and the Railroad Retirement Board , 21 Op. O.L.C. 135, 135 (1997) (“ FHFB/RRB
Removal ”)

.

Because Congress did not explicitly provide te nure protection to the Federal Coordinator, the President, consistent with the above settled principles, may remove her without cause.

The only two textual indications that are conceivably to the contrary— i.e. , the Coordinator’s fixed term, 15 U. S.C. § 720d(b)(1), and the “ind ependen[ce]” of the Office, id. § 720d(a)—do not undermine the above conclusion. 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 , 167 U.S. 324, 338-39 (1897) (Pre sident can remove United St ates Attorneys even during their appointed four-year terms); see also Memorandum for J. Paul Oetken, Associate Counsel to the President, from Randolph D. Moss, Assist ant Attorney General, Office of Legal Counsel, Re: Displacement of Recess Appointees in Tenure-Protected Positions (Sept. 1, 2000) (noting that “statutory term is a limit, rather than a pr otection of tenure.”). The Act’s legislative history supports the application of those precedents he re. A predecessor bill of the same Congress, S. 1005, defined the Federal Coordinator position us ing language nearly iden tical to that in 15 U.S.C. § 720d. Although the accompanying Senate Report observed that the “Coordinator will serve a term that lasts one year beyond the co mpletion of construction on the pipeline,” S. Rep. No. 108-43, at 138 (2003), it explained that the C oordinator “will serve at the pleasure of the
President.” Id

. 1

Second, that Congress established the Offi ce of the Federal Coordinator as an “independent office in the executive branch,” 15 U.S.C. § 720d(a), does not imply tenure protection. As we observed with respect to similar language, “[a] ll that should be inferred from the status of an ‘independent agen cy’ is that the entity is not lo cated within another department or agency.” FHFB/RRB Removal at 4 n.5; see also Memorandum for the Attorney General from Nicholas deB. Katzenbach, Assistant Atto rney General, Office of Legal Counsel, Removability of Members of the Renegotiation Board (Feb. 24, 1961) (“The significan ce of th[e] . . . phrase [i.e., “an independent establishment in the executi ve branch of the Government”] is uncertain, but there is reason to believe that Congress in tended to make the Board independent of the Department of Defense and of other agencies in the executive branch, without necessarily intending that it be independent of the Presiden t as head of the executive branch.”). Thus, Congress granted the Federal C oordinator a measure of free-standing authority from other executive agencies—not from the Pr esident. Indeed, although the statute grants limited authority
to the Coordinator to overrule certain terms and conditions set by other federal agencies in their agreements related to the pipeli ne project, 15 U.S.C. § 720d(d)(2), it expressly subjects a critical

1 As reported out of the House Committee on Energy and Commerce, a competing bill explicitly provided
that the Coordinator would “hol d office at the pleasure of the President.” H.R. 1644, § 2007(b)(2). H.R. Rep. No. 108-65 (2003). We do not see this provision as significant, however, since, as we have explained, there is no requirement that a law contain an express at-will removal provision. Indeed, the Senate Report, noting that the Coordinator serves at the President’s pl easure, is consistent with the genera l rule that an express at-will removal provision need not be included in the enacted law in orde r to make the officer subject to the President’s plenary removal authority.

2Removability of the Federal Coordinator fo r Alaska Natural Gas Transportation Projects

aspect of the Federal Coordinator’s duties to Presidential oversight. Id. § 720d(e)(1) (requiring Coordinator to enter into a “j oint surveillance and monitoring agreement” with the State of Alaska that shall be subject to the President’s approval).

The Supreme Court has recognized an excep tion to the above se ttled rule against inferring tenure protection in the f ace of Congressional silence. Th at case is inapplicable here.

In Wiener v. United States , the Supreme Court upheld restri ctions on the removal of members
of the War Claims Commission because of “the intr insic judicial character of [their] task.” 357 U.S. 349, 355-56 (1958); see also Separation of Powers at 170 (Executive Branch should not “infer the existence of a for-cause limit on presid ential removal,” “except with respect to officers whose only functions are adjudicatory.”). Task ed by Congress with coordinating among various agencies and ensuring compliance with the Act, the Federal Coordinator performs quintessentially executive—not adjudicatory—functions. Cf. Morrison v. Olson , 487 U.S. 654, 691 (1988) (stating that an office r’s function is only one consid eration in deciding whether an express statutory protection of te nure is constitutional). Although Wiener concerned officers with adjudicatory functions, we are aware that there is language in ca ses, often in dictum, suggesting that a for-cause remova l restriction may be inferred even for officers whose duties are not wholly adjudicatory, such as the board members of “independent” regulatory commissions.
See Swan v. Clinton , 100 F.3d 973, 982-83 (D.C. Cir. 1996) (Board of National Credit Union Administration); FEC v. NRA Political Victory Fund , 6 F.3d 821, 826 (D.C. Cir. 1993) (Federal Election Commission); SEC v. Blinder, Robinson & Co. , 855 F.2d 677, 681 (10th Cir. 1988) (Securities and Exchange Commission); cf. Free Enterprise Fund v. Public Co. Accounting Oversight Bd. , 537 F.3d 667, 680 (D.C. Cir. 2008) (recognizi ng for-cause removal restriction as to SEC Commissioners), cert. granted , 129 S. Ct. 2378 (2009) (No. 08-861). However, these multi-member boards, the appointments to which are typically subject to political balance requirements and staggered terms, do not re motely resemble the Office of the Federal Coordinator. Accordingly, we do not believe th ese cases addressing them provide support for departing from the general rule we have identified.

In sum, because Congress did not explicitly confer tenure protection upon the Federal Coordinator, the President may remove the incumbent officer at will.

/s/

DAVID J. BARRON Acting Assistant Attorney General

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