The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Wednesday evening, the House Rules Committee posted a 735-page draft bill that includes a hodgepodge of voting rights provisions. Derek Muller posted a thread that explains some of the more important changes from prior version of the bill. And Chris Walker flagged Section 8006, which creates a new independent Office of Democracy Advancement and Innovation. This office would be headed by a single director, who serves a six-year term. The statute imposes this restriction on his tenure:
The Director may be removed from office by the President. If the President removes the Director, the President shall communicate in writing the reasons for the removal to both Houses of Congress not later than 30 days before hand.
With this statute, it would be impossible for the President to remove the director right away. There must be at least a thirty-day lead-time, in which the President provides a written justification for that removal. And, presumably the President has zero control during that thirty-day window when the "independent" Director knows he is on his way out.
Chris and Aaron Nielsen wrote a new paper suggesting that the Congress can discourage the President from using his removal power, short of imposing for-cause protection. But their article is skeptical of the thirty-day restriction. Aaron and Chris explain that current law require thirty-days notice before removing Inspectors Generals. But Presidents Obama and Trump evaded that requirement by placing the IGs on administrative leave for thirty days, then removing them. Yet the D.C. Circuit upheld this workaround, finding that "placement on administrative leave . . . did not constitute removal from office." Aaron and Chris raise the obvious constitutional difficulties:
Because a pre-firing notice requirement strikes us as raising constitutional questions and is easily side-stepped by the president through paid administrative leave, we do not include it in Congress's anti-removal power toolkit outlined in Part III infra.
I can't see how this tenure protection survives after Seila Law. For a full month, the President is stuck with an "independent" Director that cannot be controlled. Moreover, the Director already knows he will soon be out of a job. That expiration date could provide even more incentive to misbehave. Sort of like when George Costanza was trying to get fired, but Steinbrenner wouldn't get rid of him.
There is another related area of federal law. The National Defense Authorization Act required the executive branch to provide Congress with thirty-days advance notice before transferring certain detainees from Guantanamo Bay. But in 2014, President Obama did not provide advance notice before he transferred six detainees. At the time, these released detainees were part of a trade to bring back Bowe Bergdahl. How did Obama get around this statute? Initially, at least, the Executive Branch said that the thirty-day restriction infringed on the President's Article II powers. I wrote about the constitutional issues with the release in an unpublished article:
Initially, Secretary of Defense Chuck Hagel justified the release on the President's inherent Article II powers, as a rationale for his failure to comply with the law: "we believe that the president of the United States is commander in chief, [and] has the power and authority to make the decision that he did under Article II of the Constitution." White House National Security Adviser Susan Rice—a Sunday-morning show stalwart—similarly alluded to the President's inherent powers during an interview on This Week, "We had reason to be concerned that this was an urgent and an acute situation, that his life could have been at risk. We did not have 30 days to wait. And had we waited and lost him, I don't think anybody would have forgiven the United States government."
Alas, the anti-Article II Obama Administration walked back that statement.
Shortly thereafter, the Administration attempted to walk back that position, and the National Security Council released a more refined statement, not based on inherent powers: the "Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances." Further, "Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances." The White House Press Secretary likewise explained, "The administration determined that given the unique and exigent circumstances, such a transfer should go forward notwithstanding the notice requirement of the NDAA, because of the circumstances."
At the time, Jack Goldsmith eviscerated this rationale.
I suspect the Biden Administration would oppose this thirty-day restriction on similar grounds.