A federal statute enacted in 1976 — Pub. L. 94-503, quoted in the notes follow 28 U.S.C.A. § 532 — says that the Director of the FBI shall be appointed by the President, with the advice and consent of the Senate, for 10 years, and “A Director may not serve more than one ten-year term.” (That was apparently a reaction to the power accumulated by J. Edgar Hoover during his many years in office.) Now “The Obama administration is asking Congress to extend by two years the term of FBI Director Robert Mueller, who transformed the bureau to fight terrorism.” (See this Bloomberg story.)
I don’t have much to say about the question whether Mueller should serve an extra two years; but I do think that statutes such as this create an interesting constitutional situation. The Constitution’s Appointments Clause provides:
[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
This allows the President to appoint certain officers, if the Senate agrees, but it leaves no role for the House, or for previous sessions of the Senate. Congressional statutes therefore may not limit the President’s power under the Appointments Clause to appoint whomever he chooses.
But at the same time the Senate is entitled to block the President’s nomination, for whatever reason strikes the Senators as suitable, including that the Senators believe the appointee had already served long enough. And though the decision is left to today’s Senators, and not past Senators plus Representatives, today’s Senators may choose to follow the 10-year limit set forth by the statute, if they so wish. So the statute is not legally binding, it seems to me; but it’s an expression of the earlier wishes of the Senate and the House, and it might well sway today’s Senate to follow the policy expressed in the statute.
In any event, that’s my opinion; but the real expert on this is my sister-in law Prof. Hanah Metchis Volokh, who has written an article on this topic, The Two Appointments Clauses: Statutory Qualifications for Federal Officers, 10 U. Pa. J. Const. L. 745 (2008). Here’s what she had to say when I asked her:
[First,] there’s nothing wrong with having a set amount of time for the initial term, even of a principal officer. Some offices are by nature temporary. For those that are likely to be permanent, there may be good reasons for Congress to want the President (and the Senate) to have to reevaluate who should hold the position after a certain amount of time. Particularly in sensitive positions such as the FBI, which are susceptible to both abuse and power-concentration at the same time, it makes sense to limit the length of an officer’s initial term.
The statutory ban on appointing the same person for a second term, though, in my view violates the Appointments Clause for all the reasons I discuss in my paper. The President has the sole power to nominate, and the Senate has the sole power to confirm, an appointment that is done through the advice and consent process. The House of Representatives has no role and no power to constrain the joint action of the President and Senate. If the Senate doesn’t want to reappoint the same person once the initial term is up, they should make that clear to the President without involving the House of Representatives.
But Congress also can’t constrain the removal power of the President by forcing someone to leave office, except through impeachment. This means that the existence of a term limit doesn’t mean that the office-holder actually has to quit doing the job at the end of the term if the President doesn’t want him to. He should be able to stay on in an acting capacity, just as a new person (the new nominee or a lower-ranked person in the office) would do prior to confirmation of someone else.
Everything I said in the last two paragraphs would be totally different if we were talking about an officer with a vested appointment [i.e., an office as to which the Congress has exercised its power to “by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments” -EV]. If the FBI director were still appointed by the Attorney General without the involvement of the President and the Senate, Congress could set restrictions on who may hold the office and for how long. The Constitution says that “Congress may by law vest the appointment of such inferior officers, as they think proper,” and I believe that these vested appointments laws can include qualifications on who may hold office. I explore this argument at length in my paper.
I think that statutory extension of the initial term is probably fine, for both vested and advise-and-consent appointments. Particularly if there are no limits on early removal of the officer, it doesn’t affect any power of the President. (I might have a different view if the officer was protected from removal during good behavior, but I’d have to think about it.) It doesn’t really affect the power of the Senate either, because the Senate has no power to confirm anyone until the President nominates someone, and if the President decides to let the office stay open with an acting person instead of a confirmed person, there’s not a problem with that.
UPDATE: Hanah asked me to add this update (which also led me to strike out one of the paragraphs above):
I stated in my original e-mail that after an officer’s term runs out, the President can re-appoint that person under an “acting” title even if Congress tries to forbid it. On reflection, I don’t think that’s right. The Constitution doesn’t give the President any power to appoint acting officers to advice-and-consent positions. That power is granted through statute. I think the best way to think about those acting positions is that they are separate, temporary offices created by Congress and vested in the President under the vesting section of the Appointments Clause. Since they’re vested appointments, Congress can set limits on who may hold the office, including a limitation of not appointing the person whose term has just ended. However, the President still retains the power to nominate the same person again to a second term, and Congress cannot restrict his nomination power in any way.
This might be problematic if we are dealing with a principal officer, because only inferior officers can have vested appointments. (This isn’t an issue in the case of the FBI Director, because I think it’s pretty clear that is an inferior, not a principal, office.) But if Congress wants to allow the President to appoint acting officers in principal positions, there’s a good argument to be made that this is also constitutional. You would argue that the “acting” office is a different entity from the “regular” office, and that either (1) the “acting” office is necessarily inferior because it’s temporary, or (2) the “acting” office is inferior to the (vacant) principal office.