[Congressional Record Volume 157, Number 91 (Thursday, June 23, 2011)]
[Senate]
[Pages S4069-S4070]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        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.

                          ____________________