Constitutionality of Legislation Extending the Term of the FBI Director
Background
- President Bush appointed Robert Mueller FBI Director on August 3, 2001 for a 10-year term, with no reappointment; statute sets term and limits reappointment.
- A bill pending in Congress would extend Mueller’s term by two years.
- Constitutional question concerns whether Congress can extend an incumbent’s term without creating a new appointment under the Appointments Clause.
- The Office of Legal Counsel takes the position that extending the term is not a new appointment and does not displace the President’s appointment/removal powers.
- The analysis discusses historical practice and precedents allowing term extensions (including Parole Commissioners and other agencies) and key cases on the Appointments Clause.
- The memo ultimately concludes that a two-year extension for Mueller would be constitutional because the President remains free to remove the Director and appoint a successor with Senate confirmation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May Congress extend the FBI Director’s term without violating the Appointments Clause? | Mueller (Executive) argues extension isn’t an appointment. | Krass (Office) argues extension falls within Congress’s power to fix term, not appointment. | Constitutional; not a formal appointment by Congress. |
| Does term extension amount to displacement of the President’s appointment power? | Extension could displace the President by preventing future appointment. | President remains able to remove and appoint a successor with Senate consent. | Not displacement; President retains appointment power. |
| Is the extension consistent with historical practice on term extensions? | Historical practice supports executive-branch control, not congressional appointment. | Historical precedents show Congress can extend terms without unconstitutional appointment. | Consistent with precedent enabling term extensions. |
| Does the FBI Director’s tenure risk constitutional invalidity due to tenure protection? | Tenure protection would raise constitutional questions about obstructing removal. | Director removable at will; no restrictive tenure; extension does not create new tenure. | No constitutional problem given removal power remains intact. |
| Would extending Mueller’s term require formal nomination/confirmation for a new term? | Extension should not require new nomination/confirmation. | Nomination/confirmation process remains applicable for a successor; extension doesn’t replace nomination process. | Extension does not function as a new appointment and remains compatible with Appointments Clause. |
Key Cases Cited
- In re Benny, 812 F.2d 1133 (9th Cir. 1987) (extension of terms upheld despite tenure concerns; limits of appointment power discussed)
- In re Investment Bankers, Inc., 4 F.3d 1556 (10th Cir. 1993) (court upholds congressional power to extend terms of incumbents)
- Buckley v. Valeo, 424 U.S. 1 (1976) (Appointments Clause context; constitutional limits on congressional appointment power)
- Shoemaker v. United States, 147 U.S. 282 (1893) (concepts of appointment power and Congress vs. President authority)
- Parsons v. United States, 167 U.S. 324 (1897) (role of President in removal and appointment authority)
- Morrison v. Olson, 487 U.S. 654 (1988) (removal power and constitutional restrictions on appointment process)
- Myers v. United States, 272 U.S. 52 (1926) (Presidential appointment/removal powers and separation of powers)