The Justice Department laid the groundwork for a new legal fight over presidential power that could eventually roil top brass at the Federal Energy Regulatory Commission.
In a Wednesday letter to Senate Judiciary Committee ranking member Dick Durbin (D-Ill.), acting Solicitor General Sarah Harris said DOJ attorneys would no longer defend contract provisions that stop the president from removing leaders of multimember agencies like FERC without cause.
Harris did not explicitly mention FERC in the missive, but legal experts said the administration’s position would affect the energy regulator and other independent agencies like the Nuclear Regulatory Commission.
“This letter represents an unvarnished challenge to all classic independent agencies — that is, those that have a multi-member structure with staggered terms, prohibitions on any political super-majority, and for-cause removal protections,” wrote Emily Hammond, a law professor at George Washington University and former deputy general counsel at the Department of Energy during the Biden administration, in a statement.
