Term-Limited Appointments Can Be Cut Short

Christopher Wray, President Trump’s nominee to be FBI director, appears before the Senate Judiciary Committee on Wednesday in the context that the job wouldn’t be vacant now if Trump hadn’t fired James Comey in May not quite four years into what the law intended as a 10-year term.

The requirement that the FBI director be a presidential appointee needing Senate confirmation dates back to a 1968 crime bill, at a time when J. Edgar Hoover, who had run the bureau for 38 years, was a growing irritant to some in Congress and the executive branch.

Hoover had famously ingratiated himself to Presidents Kennedy, Johnson and Nixon before his death in 1972. But his controversial activities, which included domestic surveillance and keeping extensive files kept on potential communists and others, came to light in the 1970s, and so the law was amended in 1976 specifying that future directors would serve only 10 years.

But a Government Executive review identified multiple high-level posts that Congress designed to be out of sync with the four-year presidential election schedule.

There are a number of reasons that Congress made certain executive branch positions non-coterminous with a president’s four-year term: To establish political independence from the White House; to allow subject matter experts to span administrations for certain nonpolitical missions; to help stabilize a presidential transition; and, in a few cases, to give the position’s occupant a longer time horizon with which to grapple with, say, economic issues.

As the legislative history for authorization of the National Archives and Records Administration puts it, “Although the Archivist may be removed from office by the president, the conferees intend that he be an officer performing professional archival and records management functions insulated from the political orientation of a particular administration.”

During the President Clinton’s “reinventing government” effort in the 1990s, Congress passed several laws extending terms to provide more continuity, noted Ed DeSeve, a longtime agency veteran who co-chaired the Presidential Transition Initiative for the National Academy of Public Administration.

When an individual leaves office before the official term has elapsed, the complexities of the 1998 Federal Vacancies Reform Act kick in and determine who may act in the job and for how long.

A review of the authorizing statutes’ language makes it clear that no official is guaranteed the full term of an appointment. The language authorizing the Comptroller General’s job, for example, states that he or she may be removed for permanent disability, inefficiency, neglect of duty, malfeasance or a felony, or conduct involving “moral turpitude.”

As was made clear during the firestorm that followed Trump’s dismissal of Comey, the president has the authority to fire nearly anyone in the executive branch—and take the political consequences.

What follows is a compilation of jobs beyond the FBI director that were designed to endure beyond a single presidential term.

• Federal Reserve Board governors, established in the 1913 Federal Reserve Act but given set terms under the 1935 Banking Act, are appointed for staggered 14-year terms.
• The Comptroller General of the United States, who heads Congress’s Government Accountability Office, serves for 15 years under the 1921 Budget and Accounting Act.
• The term of the Archivist of the United States does not expire, nor is it subject to resignation upon the end of a president’s term of office.
• The Commissioner of Internal Revenue serves for five years under the 1998 Internal Revenue Service Restructuring and Reform Act.
• The director of the Consumer Financial Protection Bureau serves for five years under its founding legislation, the 2010 Dodd-Frank Financial Reform Act (though Republican critics in Congress have challenged this).
• The director of the Bureau of the Census, under the Commerce Department, serves for five years under the 2011 Efficiency and Streamlining Act.
• The Commissioner for Patents and Commissioner for Trademarks, also under Commerce, serve for five years.
• The Commissioner of Social Security Administration serves for six years.
• The director of the National Science Foundation serves for six years.
• The administrator of the Federal Aviation Administration serves for five years.
• The director of the Office of Government Ethics serves for five years under the 1979 Ethics in Government Act as amended in 1983 (though this is an example in which the holder of the job chose not to complete the term).
• The three Senate-confirmed presidential appointees at the Merit Systems Protection Board have seven-year, nonrenewable terms.
• And finally, some chief financial officers are given five-year terms, and inspectors general under the 1978 Inspector General Act are supposed to remain in place across administrations unless removed for cause. President Reagan in 1981 fired them all, noted Paul Light, a professor of public service at New York University. The Carter-administration-appointed IGs were later restored, but the episode revealed that the act’s language, Light said, was “hortatory.”

Correction: This story initially said the Archivist of the United States serves a 10-year term. The term is unlimited.