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.