In Defense of Oversight – The President and the PCLOB
In late January 2025, President Trump fired the Democratically (big D) appointed members of the Privacy and Civil Liberties Oversight Board (PCLOB), an independent watchdog entity designed to provide input and oversight to the Intelligence Community (IC). Among those fired was Ed Felton, whom I have known for years (decades actually, but who is counting).
Firing independent watchdogs – including Inspector’s General – is unabashedly political, unproductive and harmful. It is also likely a violation of separation of powers, as these independent entities were a creature of Congress, which provided for the mechanism of creation, appointment and removal. Unlike the CEO of the government, the executive branch is one of the coordinated branches of government, and the chief executive generally cannot simply remove even those who report to him/her in abrogation of the statute. Moreover, the PCLOB needs to be independent of any particular administration to function effectively. Rather than being part of the “deep state,” the PCLOB is intended to monitor and moderate the functions of the IC.
Statutory Framework
The PCLOB was originally established in 2004 as part of the Intelligence Reform and Terrorism Prevention Act (IRTPA), Pub. L. No. 108-458, § 1061, 118 Stat. 3638 (2004), as an entity within the Executive Office of the President. At that time, its members served at the pleasure of the President, meaning they could be removed at will. However, in 2007, Congress significantly altered the structure of the PCLOB through the Implementing Recommendations of the 9/11 Commission Act (Pub. L. No. 110-53, § 801, 121 Stat. 266, 352 (2007)), transforming it into an independent agency.
The 2007 amendments codified in 42 U.S.C. § 2000ee explicitly provide that PCLOB members serve fixed, staggered six-year terms. In other contexts, Courts have held that the fact that a director of an independent agency has language that suggests that they “shall serve” for a fixed period of time has been held to suggest that the person in that position cannot be fired except for inefficiency, neglect of duty, and malfeasance in office. Because the PCLOB is a relatively recent creation, there is no history on whether members serve at the pleasure of the Chief Executive, but such an interpretation would put pressure on their role as an independent check and balance on abuses by the executive branch itself.
Separation of Powers and Supreme Court Precedent
The Supreme Court has repeatedly addressed the President’s power to remove officials, particularly those serving in independent agencies. The key cases in this area include:
Humphrey’s Executor v. United States, 295 U.S. 602 (1935). This case upheld Congress’s ability to limit the President’s removal power over members of independent regulatory agencies, ruling that Congress can restrict removal to instances of inefficiency, neglect of duty, or malfeasance. The Court reasoned that independent agencies with quasi-legislative and quasi-judicial functions could be insulated from presidential control. After Humphrey’s Executor, the Supreme Court in Morrison v. Olson, 487 U.S. 654 (1988) upheld a statute restricting the President’s ability to remove an independent counsel, emphasizing that such limitations do not necessarily violate separation of powers as long as they do not unduly interfere with the President’s constitutional functions. Four years ago, in Seila Law LLC v. CFPB, 591 U.S. ___ (2020) the Court ruled that the Consumer Financial Protection Bureau’s (CFPB) single-director structure with for-cause removal protection was unconstitutional because it concentrated too much executive power in one individual. However, the Court reaffirmed Humphrey’s Executor in the context of multi-member independent commissions. Similarly, in Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010) the Court struck down a “double for-cause” removal restriction but left intact the general principle that Congress can impose a single layer of for-cause protection for members of independent agencies.
Taken together, these cases confirm that Congress may limit the President’s power to remove members of independent multi-member boards like the PCLOB, provided such limitations do not excessively impede executive functions.
Legislative History and Intent
The legislative history of the 2007 amendments to the PCLOB statute demonstrates that Congress deliberately restructured the board to be independent, precisely to insulate it from political influence. During congressional debates, members of both parties expressed concerns about ensuring the board’s ability to oversee counterterrorism measures without undue pressure from the Executive Branch.
Statements from the Senate Homeland Security and Governmental Affairs Committee emphasized that the restructuring aimed to ensure PCLOB’s independence from presidential control, with then-Senator Joe Lieberman, one of the key sponsors, noting:
“The Privacy and Civil Liberties Oversight Board must be an independent entity that can review government actions affecting civil liberties without fear of political retaliation.” (S. Rep. No. 110-77, at 5 (2007)).
Similarly, the House Judiciary Committee report on the legislation highlighted that the for-cause removal provision was modeled on precedent from independent regulatory agencies to prevent undue influence.
Without strong oversight, the IC may tend to overreach its statutory authority. The PCLOB was intended to provide that independent and bipartisan oversight. Ed Felton should get his job back, though I am not sure he would want it now. And maybe that’s the real point.
