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

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]

Comments:

Man, everyone should have the kind of power to just do whatever they hell they want, like Bush seems to think he's inherited. I'd like my employers to give me a big honkin' raise. I think I'll add a signing statement to the bottom of my paycheck doubling my salary and see what happens. While I'm at it, I think I'll drive down busy city streets at 80 mph and when the cop gives me a ticket, I'll just scribble a signing statement at the bottom to the effect that I can drive as fast as I want and hand it back to the cop. No problemo. Not being accountable rules!

# posted by

Slash : 5:43 PM

I think you're wrong to say that the statements includes "objections" to the bill. Rather, they deal with the way in which the President will "construe" the statute. The two are, at least in the abstract, not the same. After all, when the Supreme Court utilizes the canon of construing a statute so as to not render it unconstitutional, we don't say that the Court "objected to" the statute.

True, this returns us to the age-old question, when does construction become revision? But you're wrong as a definitional matter, and I don't think you've actually tried to prove your case as a pragmatic matter.

# posted by

Adam : 6:33 PM

I meant, "practical matter."

# posted by

Adam : 6:34 PM

Adam: Come on. There's nothing to construe. The provision is crystal clear on its face. The signing statement is asserting a power to "construe" the condition into oblivion, in order to avoid what it (mistakenly) identifies as a constitutional problem. There's a whiff of the avoidance doctrine here, but it's misplaced for two reasons, each of which is fatal to the proper use of the canon: (i) the statutory language is not ambiguous; and (ii) the constitutional concern is not serious.

# posted by

Marty Lederman : 7:26 PM

Marty, you'll have to note which specific provision you're talking about.

But generally speaking, I'm simply not sure what is so controversial. The Administration's blanket statement, is so commonplace now as to be almost boilerplate. I don't see any evidence that the President will in fact enforce the statute in a way that you find objectionable. Perhaps we'll cross that bridge when we get to it. But in the meantime, I respectfully submit that your argument (1) admits that there's no bright line, yet (2) suggests that the President would somehow violate the Constitution by acting at one end of the hypothetical spectrum.

In the last few years, critics of the President have attempted to turn every single political dispute into a constitutional confrontation. I thought I'd seen them all, but this post takes matters to a new level: Under your theory, if the President doesn't appoint people of sufficient competence (under a rubric you don't provide), he's violating the Constitution?

There's a difference between bad policy and illegal policy, Marty! The former needn't always be recharacterized as the latter. The President's power to control appointments is an interesting legal question, on which reasonable minds (I count you and I among such) can disagree. But I don't think I've ever heard anyone take the position that the President's constitutional authority is a function of "how well" he executes that authority.

# posted by

Adam : 12:45 AM

Every time I see a signing-statement article, it amazes me how far these people are willing to go in broad daylight to subvert small-"r" republican government. Not to mention the fact that big-"R" Republicans don't seem to mind that passages they write and vote for are left by the wayside. Especially in the passage Marty highlighted, "construe" is a joke - you either follow the law or you don't. It's not like there's room for individual interpretation there.

Oh, and Adam: if there's any money to be made in strawman-construction, you should be making it. Good job. And you even threw in "reasonable minds can disagree" on a subject that no reasonable person with a knowledge of constitutional law could argue about! Amazing.

# posted by

Shale : 2:38 AM

It's an ideology with Bush and Cheney. No sincere finding of unconstitutionality is needed to prompt a signing statement. It's enough that a bill restricts presidential power.

Bush and Cheney want the president's power as commander-in-chief to extend into civil matters too. They object to anything that gets in the way of this goal.

How can these signing statements be thwarted? Can Congress draft legislation to preclude them? I don't see how. Would the Supreme Court ever rule on their limits? I doubt it.

And will future presidents be willing to forgo this kind of power?

It's a pretty corrupt path that we've started down.

# posted by

Hal : 6:00 AM

If nothing else, the Bush administration has forced legal scholars to sharpen their minds towards basic principles that they had thought were settled and part of the common consensus, and argue them all over again.

This is only one example, where the precedents are from the 19th century and were seemingly long settled, at least in the minds of the legal community.

This phenomenon suggests we are not dealing with a traditional American political party that is content to operate within the prevailing consensus (they have contempt for that consensus, and take every opportunity, even trivial ones like this, to express that contempt). Rather, we are witnessing the tactics of the activist wing of a transformative movement, which believes its goals warrant, and even necessitate, the transformation of the consensual American constitutional order.

This reveals the nihilistic core of the movement. It is willing to create severe, even catastrophic, disorder in the pursuit of its goals. A fundamental source of order in the American experience is the constitutional order, an order that depends for its coherence on tradition and mutual understandings, and that order is being challenged at each crossroads, with little or no sympathy for its pedigree or its function. In a sense, we are living in Year VI of the new order (I am waiting for the re-casting of the calendar in the spirit of the Jacobins).

As for the Commander-in-Chief powers, I have heard both Bush and his supporters refer to Bush as the CIC of the American people! This is more than hyperbole, I think; it reflects the deliberate militarization of our domestic life. I therefore am hardly surprised that Bush would invoke the CIC powers to claim unilateral jurisdiction over the FEMA appointment, or any other function within the Executive Branch.

# posted by

MD : 10:54 AM

Adam said:

Under your theory, if the President doesn't appoint people of sufficient competence (under a rubric you don't provide), he's violating the Constitution?

Marty never said either of those things (and there's two assertions there: that Marty's criterion is "sufficient competence", and that not appointing such people would be "violating the Constitution").

The criteria are plainly spelled out (Marty clearly "provide[d]" the "rubric"), and "sufficient competence" is not one (although one might argue that the actual qualifications are in effect a requirement of "minimal competence or at least experience"). And if the preznit ignores this requirement, he would be ignoring statutory law, not violating the Constitution (sadly, the Constitution doesn't have "sufficient competence" written into it, thus our misfortunes with the preznitcy of Dubya).

I will note, just for the record, that the RW was putting out papers in favour of Clinton's impeachment that argued that the impeachment clause was intended in part to take care of gross malfeasance or mismanagement and that "high crimes and misdemeanors" was just a term of art encompassing such.

Cheers,

# posted by

Anonymous : 1:14 PM

Professor Lederman:

Does President Bush have a point on this one? I don't know what the precedent says, but doesn't he have a colorable claim that Congress cannot put statutory restrictions on whom he can appoint to certain executive positions? What does the case law say?

Under your position, if God himself (or herself) came to Earth and volunteered for the position of FEMA director, Bush would not be able to appoint Him -- even if Bush wanted to and every senator wanted to confirm Him.

Seems to me that it is at least reasonable to contend that Bush may appoint whomever he wants, but that the Senate is free to require 5 years of experience as a condition of confirmation.

# posted by

steveh2 : 1:34 PM

"Under your position, if God himself (or herself) came to Earth and volunteered for the position of FEMA director, Bush would not be able to appoint Him -- even if Bush wanted to and every senator wanted to confirm Him."

If God himself should ever come down to earth and offer up his services I would hope that the president would appoint him czar of Federal Emergency Prevention rather than management.

# posted by

Davebo : 5:32 PM

I counted 34 invocations of Chadha in Bush-II signing statements thru June 19, 2006, though I plan to update that total.

Although FEMA's story was a disaster, the levee failure was the responsibility of several entities, some public agencies and the local civil engineering works district, some private contractors.

I was reminded of another agency's moment of embarrassment earlier in 2006, which achieved a resolution much like FEMA's, with replacement of an individual who was executing administration policy but had created a counterproductive result by its implementation at NASA in the matter of suppressed science about global climate change.

Scientist complains about chaperone and censorship, January 2006.
Censor resigns from NASA February 2006.
Scientist's website in the university.

On the Katrina fiasco, consider the Times Picayune notice this week of a statewide vote to merge levee district boards and upgrade boardmember qualifications. I am sure our host JB will pardon the article's opening journalistic prose:
"A citizens campaign to abandon politics-as-usual culminated Saturday in an overwhelming statewide vote to consolidate southeast Louisiana's balkanized system of levee boards and replace them with flood protection authorities that will be governed for the first time by appointees with expertise in fields such as engineering and hydrology.

# posted by

John Lopresti : 5:52 PM

Question.

If the Executive Branch has neither the power to interprete(sp?) the law or amend and pass legislation only the right to veto legislation. Then under these signing statements, which can only be constitutionally considered as presidential opinion and not the letter of the law. Should the president choose to ignore what was passed in the actually law by citing the signing statement would he be guilty of violating the constitution as set in the seperation of powers.

And if he believes that the law is in violation of the constitution and infringes on the executive powers why doesn't he bring it before the Judicial or just veto the bill, you know the checks to those balances between the three branches.

# posted by

Questions : 7:34 PM

In case anyone actually takes this seriously as analysis instead of politics, note two things:

--President Clinton had indicated he would abide the US Trade Representative qualification, which suggests that he believed he could find qualified candidates who fit the description

--James Lee Witt, supposedly the model of a FEMA director and the appointee of President Clinton, had only 4 years of executive leadership experience prior to his appointment

# posted by

Thomas : 12:30 AM

the standard is "not less than 5 years of executive leadership and management experience in the public or private sector."

I'm assuming the "4" years reflects his Arkansas Office of Emergency Services experience since he was appointed in 1988. But, he also had various years in private sector service that would meet the test. Surely at least one year.

As to "God," I think he would meet the "private" and "public" (he does control everything, right?) requirements.

Anyway, if the terms are too strict, they are not patently unreasonable in any degree esp. as compared to any number of other offices that have requirements.

# posted by

Joe : 11:45 AM

Marty,

By requiring experience ("demonstrated ability in") both in emergency management and in homeland security, the statute may in fact be very limiting in who can be chosen. How many people have had jobs in both areas or otherwise have had responsibilities that have allowed them to "demonstrate[] ability in" handling issues in both areas?

If the statute had required knowledge of both areas and demonstrated ability in dealing with one or the other, then I'd have no problem joining your criticism of the signing statement.

If you would not interpret the requirement so as to mandate that the person have had responsibilities to deal with issues in both areas, then that's fine, but it's probably the same kind of interpretation that the signing statement indicates that the administration will adopt.

Mark S. Scarberry
Pepperdine Univ. School of Law

# posted by

Mark Scarberry : 7:02 PM

If an appointment requires Congressional confirmation, then Congress can exercise the Constitutional authority to consent to the the appointment or to reject it.

These hacks--not to let Bush and his team off the hook--continually look for some automatic mechanism to insulate themselves from the consequences of their own decisions.

One example is the midnight legislation of automatic pay raises that do not require roll call votes, letting Congressmen and Senators to simply get raises without leaving fingerprints.

Where are the men and women of integrity and character that a democracy deserves? Aren't the voters putting them in office? Or don't the parties put them forward as candidates anymore?

# posted by

Jon Koppenhoefer : 3:46 AM