Thursday, March 27, 2008

Would an Independent DNI be Constitutional?

Marty Lederman

One of the students in my Separation of Powers class flags that Barack Obama has proposed that the Director of National Intelligence be given a fixed term, "like the Chairman of the Federal Reserve," in order to "insulate the [DNI] from political pressure." Presumably, Obama means that the DNI should also be removable by the President only "for cause," as is the case with the members of the Federal Reserve Board (12 U.S.C. 242).

Jack has recently written about how odd it is that proponents of the unitary executive rarely if ever complain about the independence of the Fed, notwithstanding that the members of that Board make decisions much more momentous than almost any the President himself makes -- and that by now we all simply take for granted that the President must defer on monetary questions to this collection of unelected, unaccountable officials. I am planning a follow-up post on this issue soon, but for now, I'll simply throw out a few questions:

1. Is Obama's proposal constitutional? If not, is there a way to distinguish it from the Federal Reserve statute?

2. Is there any precedent for a major presidential candidate proposing to cede presidential control over such an important executive function?

3. If Obama is elected, would a Democratic Congress enact such a statute? Would the intelligence "community" support it or oppose it?

4. Is it good policy?


The Director of the FBI is appointed for a fixed term, but I think that it is pretty generally agreed that the President could fire him at any time. I assume that the same would be true for the DNI.

As for the policy implications, this would be a significant departure from the 9/11 Commission's vision for the DNI's function. It proposed that the DNI be located in the Executive Office of the President. An independent DNI couldn't be as intimately involved in administration policymaking as the Commission envisioned.

I can't really compare this to the Federal REserve, but if the FBI director were the analogy, it would seem more logical that the CIA director, rather than the DNI, have a fixed term.

MLS: Because Obama has emphasized analogy to the Fed, I'm assuming he means also to favor limiting the President's removal authority. If the model is instead the FBI Director, there would be no serious constitutional problem.

Is Obama's proposal constitutional? If not, is there a way to distinguish it from the Federal Reserve statute?

Technically speaking, the Constitution authorizes Congress, not the President, to "coin" money. The Constitution does not give the President any authority over the money supply at all. I think one can argue, therefore, that Congress has chosen to "coin" money through a central bank outside the President's control. (I also stand by my statement that popularly elected government can never be trusted with the money supply).

The Constitution does not authorize espionage at all. However, espionage is closely linked to the military, and the Constitution does make the President commander-in-chief of the armed forces. Anything that can be taken as compromising civilian control of the military should be seen as especially alarming.

"Is there any precedent for a major presidential candidate proposing to cede presidential control over such an important executive function?"

I think David Donald's essay "Lincoln: A Whig in the White House" argues that Lincoln campained and governed on certain Whiggish anti-presidential-power views. Carter might be another example.

It's a terrible idea. Imagine yourself as a Democratic president, saddled with John Negroponte (or John Bolton) as DNI.

The DNI has to be trustworthy.

Now, what about an intelligence board that's more like the Fed's governors?

Marty- a quick search suggests that Obama's proposal may come from an August 2004 ACLU statement to the Senate Judiciary Committee regarding the 9/11 Commission recommendations. The statement indicates that the "Commission" (presumably referring to the 9/11 Commission) had recommended a fixed term for the CIA director modeled on the FBI director provision. (I don't recall the Commission making such a recommendation, but maybe it did). The statement then goes on to propose that the DNI also have a fixed term and it uses the Federal Reserve analogy.

I am sure that the ACLU would prefer that the DNI be removable only for cause, but I don't know that one can necessarily assume that Obama is making such a proposal. My point about the FBI director is that there is a widespread understanding (ie, not limited to Federalist Society/unitary executive types) that it would be constitutionally impermissible or at least problematic to limit the President’s power of removal. Perhaps an argument could be made that the DNI is distinguishable because he does not enforce the law as the FBI director does. Still, I would guess (you would know better than I) that the conventional wisdom in the legal academy would lean against the constitutionality of limiting the President’s authority to remove the DNI.

Of course, whether such a proposal would be actually “unconstitutional” is another question. Raising that question gets into all the issues that JB has been discussing about what it means for something to be unconstitutional, who should decide the question, etc. Presumably, any limitation on the President’s authority would not come before a court unless the President actually fired a DNI for a proscribed reason and the fired DNI decided to challenge the firing. One could try to predict how such a hypothetical future case would come out, but that is not the same thing as opining on whether the provision is constitutional.

If there is no removal power over the DNI (except for, what, impeachment?), then the choice had better be good.

One could say the same thing about the Fed, of course.

The purpose of an independent central bank is not only to keep the executive from imposing a short term money supply increase that would be harmful in the long run. It is also to keep Congress from pressuring the executive to do so.
Is the same dynamic at issue with the DNI? I don't see it, because the DNI deals with intelligence that can be used as a political weapon merely by releasing or withholding information. And thus, in addition to a national security dynamic, we also have a separation of powers dynamic, with the potential for conflict between the President and Congress.

The DNI relationship in terms of practical policy dynamics is very different from the Fed. I suppose if you are a prudentialist, that might have some constitutional import. ONTH, does the fact that the First and Second banks had independent presidents way back when suggest that it is O.K. for a central bank, but that this might not follow for other offices?

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