Thursday, October 05, 2006

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.


[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.]


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!

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.

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.


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.


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.


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

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