This week, T. Elliot Gaiser — assistant attorney general in the U.S. Department of Justice’s (DOJ) Office of Legal Counsel — issued a memo on changes at the Foreign Service Grievance Board (FSGB). And according to Politico legal reporter Josh Gerstein, the memo attacks a system that has been in place for 46 years.
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In a Friday post on X, formerly Twitter, Gerstein explains, “JUST IN: Trump administration declares structure of Foreign Service in place since 1980 is unconstitutional intrusion on presidential power. DOJ’s busy Office of Legal Counsel says Secretary of State has to have final say on discipline.”
The memo, titled “Memorandum Opinion For The Legal Adviser Department Of State,” Gaiser writes, “The Foreign Service Grievance Board (‘FSGB’ or ‘Board’) hears grievances filed by members of the Foreign Service. 22 U.S.C. § 4135. Although the Secretary of State is responsible for appointing Board members, the statute prevents him from removing them except for cause and gives the Board final decisionmaking authority within the Executive Branch. This means that, for example, if a high-ranking diplomatic official in the Foreign Service files a grievance after being separated from the Foreign Service or otherwise disciplined by the Secretary, the Board can reinstate the official over the Secretary’s objection.”
Gaiser, in the memo, goes on to argue that “affording the Board final decisionmaking authority in this way violates the Appointments Clause of Article II” of the U.S. Constitution.
“In United States v. Arthrex, Inc.,” Gaiser says in the memo, “the Supreme Court held that ‘the exercise of executive power by inferior officers must at some level be subject to the direction and supervision of’ a politically accountable officer. 141 S. Ct. 1970, 1988 (2021). But that requirement has not been met here. The Board is comprised of inferior officers removable only for cause, yet the statute empowers it to make decisions that are not reviewable by any politically accountable officer, rendering the statute unconstitutional.”
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According to the American Foreign Service Association, the Foreign Service Grievance Board “was created by Congress under the 1980 Foreign Service Act to provide due process to Foreign Service members.”
In the memo, Gaiser argues that the U.S. Constitution grants presidents broad executive powers — including wide-ranging powers with foreign relations.
“By declining to enforce those portions of the statute,” Gaiser writes, “final decisionmaking authority will be appropriately returned to the relevant Executive Branch official — either the Secretary of State or the President himself…. Article II of the Constitution vests in the President the ‘executive Power,’ which carries with it a ‘vast share of responsibility for the conduct of our foreign relations.'”
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