Legal Commentary

Would an Independent DNI be Constitutional?

By Jack M. Balkin

One of the students in my Separation of Powers class flags that Barack Obama has proposed that the Director of National Intelligence be given a fixed term, "like the Chairman of the Federal Reserve," in order to "insulate the [DNI] from political pressure." Presumably, Obama means that the DNI should also be removable by the President only "for cause," as is the case with the members of the Federal Reserve Board (12 U.S.C. 242).

Jack has recently written about how odd it is that proponents of the unitary executive rarely if ever complain about the independence of the Fed, notwithstanding that the members of that Board make decisions much more momentous than almost any the President himself makes -- and that by now we all simply take for granted that the President must defer on monetary questions to this collection of unelected, unaccountable officials. I am planning a follow-up post on this issue soon, but for now, I'll simply throw out a few questions:

1. Is Obama's proposal constitutional? If not, is there a way to distinguish it from the Federal Reserve statute?

2. Is there any precedent for a major presidential candidate proposing to cede presidential control over such an important executive function?

3. If Obama is elected, would a Democratic Congress enact such a statute? Would the intelligence "community" support it or oppose it?

4. Is it good policy?

Full post as published by Balkinization on March 26, 2008 (boomark / email).