Wednesday evening’s House Rules Committee released a 735 page draft bill. This includes several voting rights provisions. Derek Muller posted a threadThis explains the most important changes made to the bill since the previous version. Chris Walker flaggedSection 8006, creates an entirely new Office of Democracy Advancement and Innovation. The office’s head would be a single director who is elected for a term of six years. This restriction is imposed by the statute:
The President may remove the Director from office. The Director may be removed by the President. Not later than thirty days prior to the event, shall notify both Houses in writing of the reason for removal.
The statute prohibits the President from removing the director immediately. The President must give a written explanation for his removal within a minimum of thirty days. It is possible that the President does not have any control in the period of thirty days when the “independent Director” is aware that he has been sent on his departure.
Aaron Nielsen and Chris Nielsen have written a paper that suggests the Congress could discourage President Trump from exercising his power of removal, if it does not impose for-cause protection. Their article is critical of the 30-day limit. Aaron and Chris say that Inspectors Generals must be notified thirty days in advance of being removed under current law. However, Presidents Obama and Trump evaded this requirement by putting the IGs on administrative leaves for 30 days before removing them. But the D.C. Circuit upheld the decision There are solutionsFinding that the “placement on Administrative Leave” is appropriate. . . “It did not mean that I was removed from my office.” Aaron and Chris bring up the obvious constitutional problems:
Pre-firing notice requirements raise constitutional issues and can be easily ignored by the president using paid administrative leave. We therefore do not include them in Congress’s anti removal power toolkit, described in Part III Infra.
It’s not clear to me how tenure protection can survive after. Seila Law. A month is spent by the President with an “independent Director” that can’t be controlled. The Director knows that he is soon out of work. This expiration date may give the Director more motivation to behave badly. It’s a lot like George Costanza trying to be fired but Steinbrenner refused to let him go.
Another area of federal law is also available. In order to transfer certain Guantanamo prisoners from Guantanamo, the National Defense Authorization Act mandated that Congress be notified thirty days in advance by the executive. However, in 2014 President Obama failed to give notice prior to transferring six detainees. The release of these detainees was part of a deal to bring Bowe Berdahl home. Obama evaded this statute in what way? The Executive Branch initially stated that the 30 day restriction violated Article II power of the President. In an unpublished article, I discussed the constitutional issues.
First, Secretary Chuck Hagel, Secretary for Defense, justified the President’s Article II inherent powers by saying that he was not following the law. [and]Mr. Smith has all the power and authority necessary to make the right decision. Under Article II de la 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. There was no time to wait for 30 days. We didn’t have 30 days to wait. I doubt anyone would have forgave the United States government if we had waited.
Unfortunately, that was not the case.
Soon after that, the Administration sought to change its position and released a refinement statement by the National Security Council, which was not founded on inbuilt powers. The “Administration determined the notification requirement Should not be taken to mean“This unique set of circumstances.” We believe that this unique set of circumstances is indisputable. Congress was not intending that the Administration be prohibited from acting in the circumstances it faced..” White House Press Secretary also stated, “The administration determined, given the unique circumstances and exigent circumstances that such a move should proceed.” Notwithstanding the NDAA notice requirementBecause of the circumstances
Jack Goldsmith dismissed this reasoning at that time.
This restriction would be opposed by the Biden administration on similar grounds.