The Biden Administration may be the most progressive in decades, but it is accelerating a conservative revolution in presidential power over the federal bureaucracy. The latest example is the President’s sacking Friday of Social Security Administration (SSA) commissioner
appointee whose six-year term wouldn’t have expired until 2025.
Democrats in Congress lobbied for Mr. Saul’s firing because he displeased federal employee unions. Mr.
has been aggressive in purging the federal government of Trump appointees, even those like the SSA commissioner who typically serve under Presidents of both parties. The Administration has also broken norms by axing the National Labor Relations Board general counsel and leaders at the U.S. Commission on Fine Arts and the Administrative Conference of the U.S.
In a legal memo justifying the firing of Mr. Saul, the Biden White House pointed to the Supreme Court’s decisions in Seila Law v. CFPB (2020), which held that the President could fire the head of the Consumer Financial Protection Bureau, and Collins v.
(2021) which held that he can fire the head of the Federal Housing Finance Agency.
Those decisions were a major blow to the favored progressive model of governance, which sees agencies insulated from accountability as preferable to traditional democratic processes. Mr. Biden’s nominee to lead the CFPB,
in 2018 proposed a new agency to regulate political lobbying headed by a virtually unremovable director with a term of up to 10 years.
Yet Democrats are now adopting the conservative view that a President ought to be able to exert greater control over executive agencies. This shift comes from partisanship, not principle, but it could have lasting implications.
If Mr. Saul sues to serve out his statutory tenure, and the case makes its way to the Supreme Court, it would present the Justices with a novel question about agency accountability. The Court’s conservative majority could build on its Seila Law precedent.
More significant, it could reconsider two of its mistaken decisions limiting presidential control over bureaucracies—Morrison v.
(1988) on the independent counsel statute, and Humphrey’s Executor (1935) on independent agencies. A legal complaint by
whose three-year term on the council of the Administrative Conference was cut short in February, cites the latter case in demanding his reinstatement. A savvy legal shop representing Mr. Saul could bring those issues to the fore.
Progressives cringed when Mr. Trump or his supporters spoke of a “deep state” and “
holdovers.” Yet Mr. Biden’s firing spree shows that, especially in a time of heightened polarization, officials appointed by a prior President of either party may differ with an incoming Administration in meaningful ways. The constitutional approach is to let a new President pick his own personnel, so his Administration can be accountable to Congress and in elections.
Even the Biden Administration is now operating as if it endorses the originalist view of a unitary executive. Conservatives may not like the policy results of this in the short term, but the long-term result could be a more accountable government.
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Appeared in the July 13, 2021, print edition.