New York Attorney General Eric Schneiderman suggests President Barack Obama has the power to oust Ed DeMarco, acting director of the Federal Housing Finance Agency, despite a court ruling earlier this year that may limit the president’s power to do so, according to a memo from Schneiderman's office.
Furthmore, Schneiderman asserts the president may have the authority to replace DeMarco without approval from Congress.
"We conclude that the president has the authority to remove the acting director at will, and that there is a strong argument that he also has the authority to designate a new acting director, although the answer to that question is less certain," the memo stated.
In January, a federal appeals court said Obama violated the Constitution when he installed three nominees to the labor board without Senate approval through recess appointments.
As a result, many analysts believe Obama is unlikely to use a recess appointment to replace DeMarco.
In the memo, two arguments were identified that would prevent Obama from removing DeMarco, including a statute that states the acting director will serve "until the return of the Director, or the appointment of a successor." In addition, it says the removal of Demarco must be only for cause and not at will in order "to ensure the independence of the FHFA."
Nonetheless, the memo said the White House could likely replace DeMarco with one of the agency’s deputy directors, as stated by the law.
For instance, Sandra Thompson, recently appointed to serve as a deputy director, was considered a viable replacement, the memo said.