Congress, Constitutional Law

Is the 10-Year Term Limit for the FBI Director Constitutional?

-Submitted by David Drumm (Nal), Guest Blogger

One of the legacies of J. Edgar Hoover, who severed as Director of the FBI for 48 years, is a federal statute enacted in 1976 — Pub. L. 94–503, quoted in the historical and revision notes following 28 U.S.C.A. § 532: “A Director may not serve more than one ten-year term.”

The current FBI Director is Robert Mueller and his ten-year term of office expires in September. President Obama wants to extend his term by two years. It appears that President Obama doesn’t have the stomach for a messy confirmation fight with Republicans. Not that it will make any difference, but, the statutory term limit is clearly unconstitutional.

There is a good argument to be made that this statute violates the Appointments Clause of the Constitution:

[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.

The Appointments Clause provides for appointment by the President and confirmation by the Senate. There is no mention of the House of Representatives or previous sessions of the Senate. But that’s exactly what the statute does, it gives control of an appointment to the House and a previous session of the Senate.

In an article for the University of Pennsylvania Journal of Constitutional Law, Vol. 10, 2008, Hanah M. Volokh of the Emory University School of Law writes:

… statutory requirements are unconstitutional for all appointments that require the advice and consent of the Senate.

and

Confirmation by the Senate, not statutory restrictions from the full Congress, is the process the Founders designed to ensure responsible appointments of officers.

Statutory regulations on “inferior officers,” those appointments not subject to Senate confirmation, are not unconstitutional.

H/T: VC, Concurring Opinions.

10 thoughts on “Is the 10-Year Term Limit for the FBI Director Constitutional?”

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  3. Congress certainly has the right to create federal offices of limited term. Only Supreme Court Justices get lifetime appointments. The question is whether it can impose a restriction barring the President from appointing a person to a second term. I’ve just skimmed Prof. Volokh’s article on the imposition of statutory qualifications for Senate-confirmed offices, and the article makes clear the law on the point is equivocal at best. It can’t be said the term limit on the FBI directorship is “clearly” unconstitutional.

    And, as guest blogger Drumm concedes, it won’t make any practical difference. A good thing, considering the abuses Hoover committed during his 48 years as FBI Director. Ten years is long enough to allow any person to wield that kind of power.

  4. I’m impressed you’d think anyone on a blog that often focuses on the Constitution would care what a theocrat thinks about the Constitution.

    Oh, wait . . . I didn’t mean “impressed”.

    I meant “laughing out loud”.

  5. I’m impressed that anyone here at this blog even gives a nod to the Constitution.

  6. Be very watchful of this phrase:

    “We’re at the highest [terrorist] threat level we’ve ever been. This isn’t the time to change directors.”

    Eventually that phrase will be modified to say:

    “We’re at the highest [terrorist] threat level we’ve ever been. This isn’t the time to change Presidents.”

  7. Why is it important for the FBI to have thier constitutional rights upheld when clearly it is a dead fish in the water for everyone else?

  8. Did anyone ask Tony? He is the only one who knows the founder’s original intent.

  9. Happened to read the following article last night:

    http://www.washingtonpost.com/politics/some-fbi-agents-are-angered-by-plan-to-extend-tenure-of-director-robert-mueller/2011/05/19/AF76cP7G_story.html

    excerpt:

    Michael Heimbach, who was Mueller’s assistant director of counterterrorism until 2009, said Mueller’s term limit is “totally different than up-or-out. . . . He’s leading the FBI. He’s not supervising a squad.”

    An FBI official, speaking on the condition of anonymity because of the sensitivity of the issue, said Mueller did not seek the extension and considered it carefully.

    Speaking from the White House Rose Garden on Thursday, President Obama announced his plan to keep Robert Mueller as FBI director for another two years. (May 12)

    “This is a term limit. There’s a statute,’’ the official said. “But when the president calls and you’re the type of guy the director is, it’s very hard to say no.’’

    The official said that “you’d have to be blind not to see that there is irony” in Mueller’s decision to stay, but added: “We’re at the highest [terrorist] threat level we’ve ever been. This isn’t the time to change directors.”

  10. And the converse of that is the Appointment ENDS when the person responsible for the appointment expires by death, expiration, resignation, inability to complete the term of office elected for……

    I think the reason that it is over lapping is to keep it from being a political appointment…..yeah right….

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