May Congress Extend the FBI Director’s Term?

FBI Director Robert Mueller’s ten-year term expires later this year.  President Obama would like to keep him in the job, however, so he is asking Congress to extend Meuller’s term by two years.  This is a somewhat unusual request, even if the President’s justification — the desire for continuity — is eminently reasonable.  Senator Charles Grassley (R-IA) called it a “one-time situation that will not be routinely repeated.”

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.