Removability of the Federal Coordinator for Alaska Natural Gas Transportation Projects

Removability of the Federal Coordinator for
Alaska Natural Gas Transportation Projects
The Federal Coordinator for the Alaska Natural Gas Transportation Projects serves at the
pleasure of the President and thus may be removed at the President’s will.
October 23, 2009
MEMORANDUM OPINION FOR THE
PRINCIPAL DEPUTY COUNSEL TO THE PRESIDENT
This memorandum confirms oral advice about the removability of the
Federal Coordinator for the Alaska Natural Gas Transportation Projects
(“Federal Coordinator” or the “Coordinator”). Specifically, you asked us
whether the statute establishing the Office of the Federal Coordinator, 15
U.S.C. § 720d (2006), restricts the President’s power to remove the Coor-
dinator. As we previously explained in our oral advice and now explain in
greater detail, we believe that the Federal Coordinator serves at the pleas-
ure of the President and thus may be removed at the President’s will.
Congress enacted the Alaska Natural Gas Pipeline Act (“ANGPA,” or
“the Act”) to encourage the speedy construction of a pipeline carrying
natural gas from the Alaskan North Slope to the contiguous United States.
See Pub. L. No. 108-324, div. C, 118 Stat. 1220, 1255 (2004); see gener-
ally Exxon Mobil Corp. v. FERC, 501 F.3d 204, 207 (D.C. Cir. 2007). The
Act established the Office of the Federal Coordinator for Alaska Natural
Gas Transportation Projects “as an independent office in the executive
branch.” ANGPA § 106(a) (codified at 15 U.S.C. § 720d(a) (2006)). The
Office is “headed by a Federal Coordinator” “who shall be appointed by
the President, by and with advice and consent of the Senate, to serve a
term to last until 1 year following the completion of the [natural gas
pipeline] project referred to in section 720a of this title.” 15 U.S.C.
§ 720d(b)(1). The Act further provides that the Coordinator “shall be
responsible for—(1) coordinating the expeditious discharge of all activi-
ties by Federal agencies with respect to an Alaska natural gas transporta-
tion project; and (2) ensuring the compliance of Federal agencies with the
provisions of this chapter.” Id. § 720d(c).
Critically, the Act does not set out any preconditions for the removal
of the Federal Coordinator. As a general matter, “[i]n the absence of a
specific provision to the contrary, the power of removal from office is
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33 Op. O.L.C. 345 (2009)
incident to the power of appointment.” Keim v. United States, 177 U.S.
290, 293–94 (1900); cf. Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir.
1991) (“When Congress decides purposefully to enact legislation restrict-
ing or regulating presidential action, it must make its intent clear.”). This
“rule of constitutional and statutory construction” recognizes that “those
in charge of and responsible for administering functions of government
who select their executive subordinates, need in meeting their responsi-
bility to have the power to remove those whom they appoint.” Myers v.
United States, 272 U.S. 52, 119 (1926). These principles support the
inference that an officer serves at the pleasure of the President where
Congress has not plainly provided for it. See, e.g., The Constitutional
Separation of Powers Between the President and Congress, 20 Op.
O.L.C. 124, 170 (1996) (“Separation of Powers”); see also id. at 172–73
(“[B]ecause the [officer]’s tenure is not protected by an explicit for-cause
removal limitation, . . . we therefore infer that the President has at least
the formal power to remove the [officer] at will.”); Removal of Holdover
Officials Serving on the Federal Housing Finance Board and the Rail-
road Retirement Board, 21 Op. O.L.C. 135, 135 (1997) (“FHFB/RRB
Removal”).
Because Congress did not explicitly provide tenure protection to the
Federal Coordinator, the President, consistent with the above settled
principles, may remove her without cause.
The only two textual indications that are conceivably to the contrary—
i.e., the Coordinator’s fixed term, 15 U.S.C. § 720d(b)(1), and the “inde-
penden[ce]” of the Office, id. § 720d(a)—do not undermine the above
conclusion. First, the Supreme Court has long held fixed terms to impose
a limit on service but not to imply tenure protection. Parsons v. United
States, 167 U.S. 324, 338–39 (1897) (President can remove United States
Attorneys even during their appointed four-year terms); see also Memo-
randum for J. Paul Oetken, Associate Counsel to the President, from
Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel,
Re: Displacement of Recess Appointees in Tenure-Protected Positions
(Sept. 1, 2000) (noting that “statutory term is a limit, rather than a pro-
tection of tenure.”). The Act’s legislative history supports the application
of those precedents here. A predecessor bill of the same Congress,
S. 1005, defined the Federal Coordinator position using language nearly
identical to that in 15 U.S.C. § 720d. Although the accompanying Senate
Report observed that the “Coordinator will serve a term that lasts one year
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Removability of Federal Coordinator for Alaska Natural Gas Transportation Projects
beyond the completion of construction on the pipeline,” S. Rep. No. 108-
43, at 138 (2003), it explained that the Coordinator “will serve at the
pleasure of the President.” Id.*
Second, that Congress established the Office of the Federal Coordi-
nator as an “independent office in the executive branch,” 15 U.S.C.
§ 720d(a), does not imply tenure protection. As we observed with
respect to similar language, “[a]ll that should be inferred from the
status of an ‘independent agency’ is that the entity is not located within
another department or agency.” FHFB/RRB Removal, 21 Op. O.L.C. at
138 n.5; see also Memorandum for the Attorney General from Nicholas
deB. Katzenbach, Assistant Attorney General, Office of Legal Counsel,
Re: Removability of Members of the Renegotiation Board (Feb. 24,
1961) (“The significance of th[e] . . . phrase [i.e., ‘an independent
establishment in the executive branch of the Government’] is uncertain,
but there is reason to believe that Congress intended to make the Board
independent of the Department of Defense and of other agencies in the
executive branch, without necessarily intending that it be independent
of the President as head of the executive branch.”). Thus, Congress
granted the Federal Coordinator a measure of free-standing authority
from other executive agencies—not from the President. Indeed, al-
though the statute grants limited authority to the Coordinator to over-
rule certain terms and conditions set by other federal agencies in their
agreements related to the pipeline project, 15 U.S.C. § 720d(d)(2), it
expressly subjects a critical aspect of the Federal Coordinator’s duties
to presidential oversight. Id. § 720d(e)(1) (requiring Coordinator to
enter into a “joint surveillance and monitoring agreement” with the
State of Alaska that shall be subject to the President’s approval).
The Supreme Court has recognized an exception to the above settled
rule against inferring tenure protection in the face of congressional si-
lence. That case is inapplicable here. In Wiener v. United States, the
* As reported out of the House Committee on Energy and Commerce, a competing bill
explicitly provided that the Coordinator would “hold office at the pleasure of the Presi-
dent.” H.R. 1644, § 2007(b)(2); H.R. Rep. No. 108-65 (2003). We do not see this provi-
sion as significant, however, since, as we have explained, there is no requirement that a
law contain an express at-will removal provision. Indeed, the Senate Report, noting that
the Coordinator serves at the President’s pleasure, is consistent with the general rule that
an express at-will removal provision need not be included in the enacted law in order to
make the officer subject to the President’s plenary removal authority.
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33 Op. O.L.C. 345 (2009)
Supreme Court upheld restrictions on the removal of members of the War
Claims Commission because of “the intrinsic judicial character of [their]
task.” 357 U.S. 349, 355–56 (1958); see also Separation of Powers, 20
Op. O.L.C. at 170 ( Executive Branch should not “infer the existence of a
for-cause limit on presidential removal,” “except with respect to officers
whose only functions are adjudicatory.”). Tasked by Congress with coor-
dinating among various agencies and ensuring compliance with the Act,
the Federal Coordinator performs quintessentially executive—not adjudi-
catory—functions. Cf. Morrison v. Olson, 487 U.S. 654, 691 (1988)
(stating that an officer’s function is only one consideration in deciding
whether an express statutory protection of tenure is constitutional). Al-
though Wiener concerned officers with adjudicatory functions, we are
aware that there is language in cases, often in dictum, suggesting that a
for-cause removal restriction may be inferred even for officers whose
duties are not wholly adjudicatory, such as the board members of “in-
dependent” regulatory commissions. See Swan v. Clinton, 100 F.3d 973,
982–83 (D.C. Cir. 1996) (Board of National Credit Union Administra-
tion); FEC v. NRA Political Victory Fund, 6 F.3d 821, 826 (D.C. Cir.
1993) (Federal Election Commission); SEC v. Blinder, Robinson & Co.,
855 F.2d 677, 681 (10th Cir. 1988) (Securities and Exchange Commis-
sion); cf. Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., 537
F.3d 667, 680 (D.C. Cir. 2008) (recognizing for-cause removal restriction
as to SEC Commissioners), cert. granted, 129 S. Ct. 2378 (2009) (No. 08-
861). However, these multi-member boards, the appointments to which
are typically subject to political balance requirements and staggered
terms, do not remotely resemble the Office of the Federal Coordinator.
Accordingly, we do not believe these cases addressing them provide
support for departing from the general rule we have identified.
In sum, because Congress did not explicitly confer tenure protection
upon the Federal Coordinator, the President may remove the incumbent
officer at will.
DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel
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