Relying upon a broad interpretation of the powers of the nation’s Chief Executive, President Biden on Friday fired one of the government’s most important officials even though Congress years ago had severely limited the authority to do exactly that. Sent packing was the head of the Social Security agency, Trump appointee Andrew Saul, who otherwise could have stayed in office until early 2025.
The President relied upon a 17-page legal memo by Justice Department lawyers, who argued that the Constitution allows the President to fire that official “at will” – that is, even if there were no reason to do so. That is an argument that has been popular for years with conservative activists who favor much greater power in the president as the head of a “unitary Executive Branch.”
Other presidential firings have been controversial, too, but none carried out throughout history appeared to have reached as widely across the operations of the national government as does the dismissal of the Social Security commissioner.
That agency pays benefits of more than a trillion dollars every year in senior citizens’ pensions and payments to needy people and the disabled. Government lawyers, defending the President’s authority to fire Saul, noted that the agency touches “the lives of nearly every American family” and its actions are “a “key component of the nation’s economic safety net.”
The White House did not issue a formal announcement that Saul had been fired, but confirmed that Biden had done so. Some officials there told news reporters that Biden Administration officials were unhappy with Saul’s leadership of Social Security and that he was dismissed after he had refused to resign. But the core justification for doing so, without giving a formal, on-the-record reason, was the Justice Department memo.
Although the Social Security Administration has been treated technically as a part of the Executive Branch, Congress in 1994 specified that it was to be an independent agency within that Branch and declared that the commissioner could not be fired unless he had been found to have neglected his duty or was guilty of “malfeasance in office.”
The legal memo behind Biden’s action said that that limitation on presidential removal power was unconstitutional, under two recent Supreme Court rulings – one just last month and the other last year – expanding the constitutional scope of that authority. The most recent of those rulings permitted the no-cause firing of the head of a federal housing finance agency, and the 2020 ruling allowed the no-cause dismissal of the director of the federal consumer protection bureau – neither official having anywhere near the powers of the Social Security commissioner.
In the new memo, dated Thursday, Justice Department lawyers said they were not questioning the validity of the six-year term that Congress had specified for the commissioner. It said the only unconstitutional part of the law governing that agency was the curb on the removal authority.
Although that memo stressed that it was giving the White House legal advice only on the specific issue of firing the Social Security chief, its reasoning moved well beyond that by stressing the notion that the Supreme Court had been moving steadily toward enhancing presidential power to run the Executive Branch without being thwarted by officials within that part of the government. “At will” firing authority is the constitutional remedy, it said. Its reasoning traced all the way back to James Madison in the very first Congress in 1789.
As is often the case when the Supreme Court acts to interpret the sharing of power in the national government, it results in a zero-sum effect – here, the enhancement of presidential authority came at the expense of Congress’ authority to pass laws directing how the Executive Branch is to be set up and operated – especially the legislative power to give federal agencies a strong measure of independence.
Since the New Deal days of President Franklin Roosevelt, Congress has steadily expanded the number of federal agencies, creating what many conservative critics have called a “fourth branch of government” that gives unelected bureaucrats enormous power over the nation’s people and its economy.
President Biden’s action on Friday brought back to mind the uproar in Congress in the 1920s after the Supreme Court had struck down a provision that required the president to get Senate approval for naming any postmaster. Partly responding to that controversy and partly seeking to deal with the Great Depression, Congress began setting up a series of new federal agencies, often putting some limits on presidential removal power of agency officials.
The Supreme Court seemed to switch position in a 1935 ruling, upholding the protection of a member of the Federal Trade Commission and thus nullifying Roosevelt’s move to fire him. In recent years, some conservative judges – including one of President Trump’s Supreme Court nominees, Justice Brett M. Kavanaugh – have suggested that the 1935 decision be reconsidered. The new memo could point in that direction.
The rise of the “unitary Executive Branch,” with its actual management clearly centered in the White House, has grown out of a conservative legal movement that began in the 1970s, with the creation of advocacy groups like the Federalist Society. Incidentally, President Trump’s only nominees to the Supreme Court or other federal courts were individuals who had been recommended to him by the Federalist Society.
While the legal justification for the Social Security commissioner’s dismissal was limited only to presidential removal power, the power of the presidency was also significantly broadened by another recent Supreme Court decision.
In a ruling on June 21, a divided Court ruled that final actions within the Executive Branch judging the outcome of a contested federal benefit can only be made by an official named by the president and approved by the Senate.
That case, affecting administrative judges who previously had the power to nullify existing patents on inventions, is likely to curb severely the power of lower-level officials to make decisions that affect a wide array of public rights or benefits.
That, too, appears to pare Congress’s authority to regulate how such judging is done within Executive agencies and especially its power to insulate administrative judges from political influence from presidential appointees.