[Congressional Record: June 23, 2011 (Senate)]
[Page S4069-S4070]
MINORITY VIEWS--S. 1103
Mr. COBURN. Mr. President, because our minority views were not
included in the Senate Judiciary Committee's report on S. 1103, I ask
unanimous consent to have them printed in the Record. We hope these
views will be of use to Members of the Senate if this legislation is
considered on the Senate floor.
There being no objection, the material was ordered to be printed in
the Record, as follows.
Minority Views of Senators Hatch, Sessions, Graham, Lee, and Coburn
We fully support the President's request to extend FBI
Director Mueller's time in office by two years, followed by a
return to the previous practice of one ten-year term for each
subsequent FBI Director. We also are committed to
implementing this extension before Director Mueller's current
ten-year term expires in August. The Senate must, however,
pursue this extension in a constitutional manner.
1. Constitutional Concerns
Senators Hatch, Cornyn, Graham, Lee, and Coburn have
proposed a method of extending FBI Director Mueller's time in
office in a way that is universally agreed to be
constitutionally unimpeachable. In contrast, a prominent
legal scholar has called into question the constitutionality
of the method of appointment that S. 1103 proposes. Setting
aside the question of our duty to ensure the
constitutionality of all legislation approved by our chamber
of Congress, the practical consequences of a court declaring
void Director Mueller's extension could have widespread
ramifications. Any litigation challenging the
constitutionality of S. 1103 would call into question the
authority of the head of one of America's most important
domestic counterterrorism and law enforcement agencies.
Potential litigants could be numerous given the substantial
number of suspects seeking to avoid criminal liability and
those seeking to undermine our terrorism investigations and
national security apparatus. For example, at the hearing,
James Madison Distinguished Professor of Law at the
University of Virginia School of Law John Harrison was asked
about potential legal challenges to the validity of Section
215 orders for sensitive business records. Pursuant to the
2005 extension to the Patriot Act, these Section 215 orders
must be authorized by one of three top government officials
or their deputies. Professor Harrison testified that 215
orders were a good example of the potential problem that
could result from challenges to Director Mueller's extension
because a judge might find that orders signed by him were
unauthorized.
Since at least one prominent legal scholar has testified
that S. 1103 would unconstitutionally appoint Director
Mueller to a new term, it is easy to imagine at least a few
of our 677 Federal District Court judges coming to the same
conclusion. In fact, even Senators Schumer and Whitehouse
agreed this legislation is of questionable constitutionality.
Senator Whitehouse said, ``with respect to the Appointments
Clause, we are in a constitutionally gray area,'' and he said
he could see the judicial decision ``going either way.''
Senator Whitehouse continued that if he ``were a clerk for a
judge and was asked to'' he could ``write it going both
ways.'' Senator Schumer agreed stating it is a ``fuzzy
issue'' and ``there are merits on either side'' and ``it is a
close question.''
Even assuming that such a ruling were overturned on appeal,
during the intervening period, FBI operations could be
stagnated as all official acts of the FBI Director since his
extension began would be of questionable validity. This
scenario could lead to a failure to gather critical
intelligence or to the release of dangerous criminal and
terrorism suspects.
The Majority argues that constitutional concerns are
nonexistent because only one witness at the June 8, 2011
hearing raised constitutional concerns about S. 1103;
however, the Minority would point out that due to
longstanding committee practice, the minority is allocated a
limited number of witnesses. In this case, the ratio on the
panel was three to one. Our one witnesses testified as to
concerns and these concerns are likely shared by other legal
scholars who were not invited to testify. Notwithstanding,
even if there is only a small chance that a judge might find
S. 1103 unconstitutional, we believe that the Senate has a
duty to avoid that contingency, which carries with it
potentially severe consequences.
Fortunately, we have an ironclad alternative that would
accomplish the same goals as S. 1103 in the form of the
amendment Senator Coburn offered to S. 1103. We believe the
supporters of S. 1103 have the burden of proof to show why we
should not follow the undisputedly constitutional course,
even if they believe there is only a small chance of a judge
declaring an action taken by Director Mueller to be
unauthorized. Given the opinions of Professor Harrison and
other eminent scholars in addition to the lack of a U.S.
Supreme Court decision directly on point, they cannot
credibly claim there is no realistic chance at all. Indeed,
at the Committee's June 16, 2011 business meeting, Senator
Whitehouse stated that ``with respect to the Appointments
Clause, we are in a constitutionally gray area'' and that he
could see a judge ``going either way.'' Senator Schumer said
this was a ``fuzzy issue,'' ``there are merits on either
side,'' and ``it is a close question.'' Senator Coburn's
simple alternative removes the gray fuzz, thus preserving our
national security and law enforcement infrastructure from
potential confusion.
2. S. 1103 Violates the Appointments Clause of the Constitution
The Appointments Clause's four methods
The Appointments Clause of the Constitution requires all
Executive Branch appointments to be made by the President
with the Advice and Consent of the Senate with only three
exceptions: ``[T]he 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.'' Congressional appointments are not among the
exceptions, and the majority report properly points out that
Congress cannot make appointments of Executive Branch
officials and that the FBI Director is an Executive Branch
official. The question, then, is whether or not S. 1103 would
allow Congress to extend the FBI Director's statutory ten
year term for two additional years.
Professor Harrison testified that, ``An appointment is a
legal act that causes someone to hold an office that
otherwise would be vacant or held by someone else. . . . A
statutory extension of the term of an incumbent causes the
current incumbent to hold an office that otherwise would be
vacant upon the expiration of the incumbent's term. It is
thus a statutory appointment. . . . It is just like a statute
that provides that a named person is hereby appointed to a
specified office.'' We believe Professor Harrison's
interpretation has merit and thus conclude that extending
Director Mueller's term and causing him to hold an office
that otherwise would be vacant on August 4, 2011, could
violate the Appointments Clause.
The law currently requires Director Mueller to step down
after his ten-year term ends and forbids his reappointment by
the President. Thus, it could be argued that S. 1103
reappoints Director Mueller to a new two-year term by
legislative decree in violation of the Appointments Clause.
The Supreme Court has recognized that Congress cannot make
Executive appointments, even if the President signs the law
making those appointments. It is irrelevant that the
President and almost all members of Congress wish Director
Mueller to continue in office. Constitutional formalities
must be followed. For example, if all members of both houses
of Congress sent a letter to the President saying they
thereby willed a certain bill to become law, and the
President sent a letter in return saying that he too willed
the bill to become law through his letter, it would not
become law, and no court would treat it as law. We have a
written Constitution for this very reason and Congress and
the president must comply with its specific procedures. The
Constitution requires that both houses vote on a bill and
present it to the President for his signature before it can
become law. The majority's emphasis on the President's desire
that the FBI Director continue in office is immaterial. The
President's only constitutional method of placing someone in
office is by appointment.
[[Page S4070]]
3. The Caselaw
The caselaw on statutory extensions of Executive officials'
terms is unclear, making a clearly constitutional bill from
Congress all the more imperative. The best the majority
report could produce is In re Benny, a Ninth Circuit Court of
Appeals case. In re Benny suffers from three flaws: it is
binding in only one circuit, the circuit most often
overturned by the Supreme Court; it came down before the
Supreme Court's Morrison v. Olson decision on the subject of
appointments and thus did not integrate the reasoning of that
decision into its own; and as the majority admits, one of the
concurring opinions in In re Benny does not support S. 1103's
constitutionality. Judge Norris' opinion in In re Benny
flatly states, ``My principal disagreement with the
majority's position is that I believe the Appointments Clause
precludes Congress from extending the terms of incumbent
officeholders. I am simply unable to see any principled
distinction between congressional extensions of the terms of
incumbents and more traditional forms of congressional
appointments.''
The disagreement even among the concurring judges in the
Committee majority's list of supporting caselaw demonstrates
the likelihood of litigation and the possibility of negative
decisions in this ``gray'' and ``fuzzy'' area of law.
Further, In re Benny misinterpreted Supreme Court caselaw.
As Professor Harrison points out, that case relied on Wiener
v. United States, which merely allowed legislation
restricting the President's ability to remove quasi-judicial
officers to stand. Professor Harrison also notes legislation
extending the life of an agency or commission is not the same
as extending the term of an appointee because it does ``not
extend the term of an officer who otherwise would have been
replaced by a new appointee.''
Morrison is similarly gray and fuzzy. That case
demonstrates the U.S. Supreme Court takes very seriously
challenges to federal officials' authority based on the
Appointments Clause and the Court is willing to contemplate
voiding the actions of an official whose appointment violates
the clause. In Morrison, the Court undertakes an extensive
analysis of what authority the appointed official has, how
that authority could interfere with presidential duties and
prerogatives if that official was not appointed by the
President or by someone under the President's control, and
who appoints the official and from what section of the
Constitution the appointing persons derive their authority to
appoint. Rather than relying on bright-line rules, the Court
weighs and examines many aspects of the Act involved and its
practical effects in order to come to many of its
conclusions. The Morrison Court upheld the constitutionality
of having courts of law appoint independent counsels, but
simple formulae are not employed to construct this decision,
which is a distinct encouragement to future litigation since
attorneys have many pathways to plausibly arguing
unconstitutionality.
Justice Scalia in his dissent went so far as to assert that
the Court had laid down no real guidance at all, and that
decisions about the constitutionality of appointments would
from now on be made ad hoc by the Court, certainly an
invitation to future litigation:
Having abandoned as the basis for our decision-making the
text of Article II that ``the executive Power'' must be
vested in the President, the Court does not even attempt to
craft a substitute criterion--a ``justiciable standard''. . .
. Evidently, the governing standard is to be what might be
called the unfettered wisdom of a majority of this Court,
revealed to an obedient people on a case-by-case basis. This
is not only not the government of laws that the
Constitution established; it is not a government of laws
at all.
The Morrison Court did not uphold congressional
appointments as constitutional, which of course they are not,
because it did not address that question. Moreover, a
reasonable argument could be made that the Court would have
considered the appointment of the FBI Director under S. 1103
to be unconstitutional under its analysis. The Court held
that if the official in question had been a ``principal'' or
``superior'' officer instead of an ``inferior'' officer,
``then the Act [would be] in violation of the Appointments
Clause.'' It is hard to imagine a court classifying the
Director of the FBI as an ``inferior'' officer under the
Appointments Clause rather than a ``superior'' one given the
appointment process since 1968.
As further evidence of the Court's willingness to challenge
the actions of those whose appointments are of questionable
constitutionality, in Ryder v. United States the Court
reversed the lower courts and threw out the conviction of a
member of the Coast Guard because two of his judges were
appointed contrary to the requirements of the Appointments
Clause. The Court had also invalidated most of the powers of
the members of the Federal Election Commission, as created by
the Federal Election Campaign Act, because they were not
appointed in conformity with the Appointments Clause.
4. Department of Justice Opinions
Given the lack of precedential caselaw and the novelty of
the issues presented in S. 1103, the series of DOJ legal
opinions that the majority cites in favor of S. 1103's
constitutionality cannot be held to be determinative.
Further, these opinions are inconsistent. As the CRS report
on which the Majority relies says, ``In 1994, the OLC [Office
of Legal Counsel] addressed the second five-year extension of
the parole commissioners' tenure and explicitly disavowed an
earlier 1987 opinion, which viewed the first extension of the
Parole [sic] commissioners' terms of office as
unconstitutional, finding it in contradiction with its 1951
opinion.'' Hence, the OLC endorsed the constitutionality of
extensions, then repudiated it, then endorsed it again.
Regardless of OLC opinions, very few cases have been
litigated concerning legislative extensions of officials'
tenures. Unlike the appointees whose terms were extended by
legislation cited by the majority, the FBI Director is a
``principal'' or ``superior'' officer, which may cause the
courts to view his case differently, and we still have not
heard anything definitive from the Supreme Court on this
question.
5. The Rationale
The jealous guarding of the President's power to appoint is
crucial to preserving the separation of powers and promoting
good government. As Alexander Hamilton wrote in Federalist
No. 76,
The sole and undivided responsibility of one man will
naturally beget a livelier sense of duty and a more exact
regard to reputation. He will on this account feel himself
under stronger obligations, and more interested to
investigate with care the qualities requisite to the stations
to be filled, and to prefer with impartiality the persons who
may have the fairest pretensions to them.
The President has an absolute veto over Executive Branch
nominations because he initiates them, which also means he
must take responsibility for them. Eliminating the
formalities of the confirmation process which require a
nomination by the president undermines that connection
between president and nominee the assignment of political
responsibility.
6. The Solution
We see a simple resolution to our disagreement that
accomplishes the goals shared by the Majority, the President,
and almost all members of Congress, including ourselves. The
amendment cosponsored by five members of the Judiciary
Committee would create a new two-year term to begin on or
after the day that Director Mueller's current term expires.
After this one-time two-year term concludes, the FBI
directorship would return to the previous statutory ten-year
term, and Director Mueller would not be eligible to serve
beyond the new two-year term. The President may nominate
Director Mueller to this two-year term or whomever else he
chooses. We are committed to expediting Senate confirmation
of Director Mueller's nomination and ensuring there is no gap
in service at the top of the FBI. We are willing to waive a
confirmation hearing for Director Mueller and also the
Committee questionnaire. And, we will do what we can to
ensure a speedy vote by the full Senate. To our knowledge, no
one has raised any constitutional objections that could call
into question Director Mueller's authority if our alternative
is followed, and the experts we have consulted unanimously
agree that there is no constitutional difficulty. As former
Deputy Attorney General James Comey testified regarding the
constitutionality of extending Mueller's tenure, ``If you can
do it in a way that makes it bulletproof, especially against
the kind of litigation that you've spoken of, that would be
better.''
Conclusion
We do not assert that S. 1103 is clearly unconstitutional.
We assert that its constitutionality has been called into
question by respected experts and could expose Director
Mueller's authority to dangerous litigation. We further
assert that we have a duty to enact a constitutionally
airtight alternative that would achieve the same goals.
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