Justice Department Office of Legal Counsel Concludes the Constitution Requires Presidential Control of the Foreign Service Grievance Board

Today, the Department of Justice released an opinion for the Department of State’s Legal Advisor finding that the Foreign Service Grievance Board (FSGB)’s unchecked power over the U.S. Foreign Service violates the Constitution. “Accountability for American foreign policy flows from the people to the foreign service through the President, our elected official charged by the Constitution to conduct foreign affairs, and his Secretary of State,” said Assistant Attorney General T. Elliot Gaiser. “Our advice today restores that essential through-line.” Since 1980, the Foreign Service Act has empowered the FSGB to reverse disciplinary measures and reinstate members of the Foreign Service who had been terminated by the Secretary of State. A 2013 decision of the Board, for example, reinstated a Foreign Service member who had been terminated for downloading and viewing pornography on his government-issued computer. Under the statute, the President and the Secretary of State were powerless to overrule the Board’s decision. The opinion published today by the Office of Legal Counsel and signed by Assistant Attorney General T. Elliot Gaiser concludes that the statutory provisions that gave the FSGB final decision-making authority violate Article II and cannot be enforced. The political accountability written into our Constitution requires that the President maintain control over the Executive Branch. This control is nowhere more critical than in the realm of foreign policy. To restore constitutional order in the Foreign Service, final decision-making power must be vested in a presidentially accountable Executive Branch officer — here, the Secretary of State. Going forward, DOJ has advised that the FSGB may continue to hear grievances as before, but the Secretary will retain final decision-making authority, as the Constitution requires.