Shameless: The President's Constitutional Authority to Appoint Political Hacks to Run FEMA

Marty Lederman

Yesterday, the President signed H.R. 5441, the annual Department of Homeland Security Appropriations Act. In his signing statement, the President noted constitutional objections to more than 37 different provisions of the bill. (Thirty-seven provisions are specified -- but several of those are listed merely as examples ("such as") of still other unenumerated "provisions" of the Act. There's no way of knowing how many provisions the President intends to implement (or not implement) contrary to congressional will.)

Many of those objections are perfectly proper, such as with respect to those provisions that would require congressional committee approval before the Executive could execute them, thereby violating the principles of INS v. Chadha. Others are subject to reasonable dispute.

Some of the objections, however, are just ridiculous. Section 513 of the bill, for instance, transfers the authority to conduct security background investigations of potential employees in certain agencies from the Office of Personnel Management to the Department of Homeland Security, until such time as the President has selected a single agency to conduct security clearance investigations. In the President's view, this temporary transfer of security investigation authority from one agency to another implicates the President's "exclusive constitutional authority, as head of the unitary executive branch and as Commander in Chief"! (Recall that Article I designates the President the Commander in Chief Clause of the Army and the Navy.)

But that's not the most alarming objection.

Remember Katrina?

Remember Michael Brown, the FEMA Administrator who did such a bang-up job dealing with the crisis?

Well, in this bill Congress took a very modest step to try to prevent that sort of incompetence in cases of future disasters: Section 611 of the Act imposes the following qualifications for the Administrator of FEMA:

The Administrator shall be appointed from among individuals who have—

(A) a demonstrated ability in and knowledge of emergency management and homeland security; and

(B) not less than 5 years of executive leadership and management experience in the public or private sector.

According to the President, this provision apparently transgresses the Appointments Clause because it "purports to limit" -- purports to limit! -- "the qualifications of the pool of persons from whom the President may select the appointee in a manner that rules out a large portion of those persons best qualified by experience and knowledge to fill the office." Accordingly, "[t]he executive branch shall construe [the qualification] in a manner consistent with the Appointments Clause of the Constitution."

This is simply mind-boggling. Qualifications for presidential appointees are ubiquitous in federal law, and have been since the dawn of the Republic. In the Judiciary Act of 1789, in fact, the very first Congress required that the Attorney General be a "meet person, learned in the law," 1 Stat. 93 -- a qualification not unlike that for the FEMA Administrator in the new law. In Myers v. U.S., Justice Brandeis spent almost ten pages of the U.S. Reports enumerating scores of such qualifications from 1789 to 1926 alone -- including many cases in which Congress "has limited the power of nomination . . . by prescribing specific professional attainments, or occupational experience." 272 U.S. at 265-274. Even the majority in Myers -- a very strongly pro-President opinion -- conceded that Congress may impose "reasonable and relevant qualifications and rules of eligibility of appointees." 272 U.S. at 129. Such qualifications are constitutional as long as they "do not so limit selection and so trench upon executive choice as to be in effect legislative designation" of a particular appointee." 272 U.S. at 128.

The test was probably best articulated by Attorney General Akerman in an 1871 opinion: Statutory qualifications for federal officers appointed by the President are ok as long as they "leav[e] scope for the judgment and will of the [President]. . . . . Congress may not dictate qualifications "unattainable by a sufficient number to afford ample room for choice." Civil Service Commission, 13 Op. Att'y Gen. 516, 520-21, 525 (1871).

Obviously, section 613 easily satisfies this test. It merely requires that the Administrator of FEMA have "a demonstrated ability in and knowledge of emergency management and homeland security" and "not less than 5 years of executive leadership and management experience in the public or private sector." To be sure, this qualification would prevent the appointment of someone whose only "relevant" experience was being friends with Joseph Allbaugh and overseeing horse trial judges and stewards for the Arabian Horse Association until being ""forced out . . . after withstanding numerous lawsuits against his enforcement of rules for judges and stewards."

But it certainly could be construed to leave the President with the authority to appoint just about anyone who has the actual capacity to run FEMA.

I suppose it's possible the President could have taken the view that all statutory qualifications for presidential appointees are unconstitutional. That would have been wrong, and belied by unbroken history. But it would at least have made logical sense.

Instead, the signing statement has the temerity to state that the qualifications in the bill "rule[] out a large portion of those persons best qualified by experience and knowledge to fill the office"!

That's right -- in the views of this President, requiring a demonstrated ability in and knowledge of emergency management and homeland security and at least five years of executive leadership and management experience "rules out a large portion of those persons best qualified by experience and knowledge to fill the office" of FEMA Administrator -- and thus the President apparently will not feel bound to satisfy those qualifications.

Of course, this makes no sense at all . . . unless, in the Administration's view, what a FEMA Administrator really needs to "fill the office" is not experience and knowledge of disaster relief and management skills, but instead "experience [in] and knowledge" of how to be blindly loyal to the Republican Party.

Remarkable.

[NOTE: The language in the signing statement -- "rules out a large portion of those persons best qualified by experience and knowledge to fill the office" -- is taken verbatim from an OLC Opinion in the Clinton Administration which concluded that a statute preventing the President from appointing as United States Trade Representative anyone "who has directly represented, aided, or advised a foreign entity in any trade negotiation, or trade dispute, with the United States," is unconstitutional. The conclusion of that opinion was, in my view, wrong -- the Trade Rep qualification still left the President "ample room for choice" of an appointee -- but obviously, that statute would have ruled out many of the best-qualified persons for Trade Representative (including Charlene Barshevsky), and so its empirical claim was reasonable, even if its constitutional conclusion was mistaken. In the FEMA case, by contrast, the statutory qualification likely does not rule out any of the persons best qualified to fill the office -- it rules out only those people, such as Michael Brown, who are patently unqualified to perform the important functions of that office.]
Posted 4:52 PM by Marty Lederman [link]