A Blind Squirrel Finds a Nut

Last Friday President Biden fired the head of the Social Security Administration, Andrew Saul. Saul was a Trump appointee who had been working to clean up processes and prevent fraud at the SSA (described by Democrats and their union allies as “abuse” and “politicization,” of course). Saul, citing the authorizing statute for the SSA, said that the firing was illegal because he could only be fired for “neglect of duty” or “malfeasance.” The Biden administration cited neither, instead firing him to install their own man.

This is a very healthy development for constitutionalism because it brings a future Republican administration one step closer to the dismantling of the administrative state. But first, some back story.

The colloquial label for the constitutional issue at the heart of this conflict is “the removal power.” In the first Congress of the brand-new Constitution in 1789, an issue arose over whether the Secretary of State would be removable solely at the President’s discretion. The constitutional text is clear on the Senate’s involvement in confirming presidential appointees (“advice and consent”) but leaves unclear who can remove an appointed executive officer outside of cases of impeachment, a clear congressional power.

James Madison and others argued in the first Congress that the removal power was inherently an executive power because it would be impossible for the President to fulfill his oath of office and remain responsible to the American people if his subordinates were not directly answerable to him. As such, any Senate involvement in appointment was to be read narrowly and should not extend to removal. If you cannot fire a subordinate, you cannot ultimately compel their obedience. This is just common sense—and it comports with the most reasonable reading of the constitution’s text.

Fast forward to 1926. Woodrow Wilson fires a Postmaster who is a holdover from the Taft administration. He refuses to leave. In the intervening years between the founding and the turn of the 20th century, Congress had started conditioning removal in various ways. In the Postmaster’s case, the Senate had to consent to a removal. Wilson ignored the statute. The Postmaster took him to Court. The result was a case called Myers v. U.S., in which Chief Justice Taft (himself a former President) rehashed the old removal debate and sided with Madison (mostly). Presidents had to have the power to fire principal subordinates to preserve the “chain of dependence” (Madison’s great phrase) stretching from the people to their elected President to his employees.

Nine years later, in 1935, the issue comes up again. FDR fires a Federal Trade Commissioner appointed by Hoover. FTC commissioners can only be removed for “inefficiency, neglect of duty, or malfeasance in office.” That statutory requirement, seemingly unconstitutional under the Myers holding of 1926, is upheld by the Supreme Court. The Court’s reasoning: Myers is still good and right for senior executive officers (the President can fire them for any reason at any time—known as “at will” executive branch employment), but if such officers exercise “quasi-legislative” or “quasi-judicial” powers, their removal can be conditioned by Congress. And that is what gave constitutional blessing to what we’ve come to know as the “independent regulatory agencies”—the administrative state.

The FTC is one of many multi-commissioner independent regulatory agencies, always with an odd number of appointees (often five or seven), split between Democrat and Republican, with one or the other party holding a one-member majority to avoid gridlock. But after the 2008 financial crash, Elizabeth Warren shepherded through Congress the authorizing legislation for the Consumer Finance Protection Bureau. Like previous regulatory agencies the CFPB’s executive can only be removed for neglect of duty or malfeasance; unlike previous independent regulatory agencies, the CFPB has a single head (not multiple commissioners), appointed by the President, and confirmed by the Senate for a fixed term. In another innovation, the CFPB gets its funding from the Federal Reserve, which is outside the control of Congress’s normal power of the purse. In 2019, the Supreme Court ruled that this was a bridge too far: the President must be able to remove the single heads of independent regulatory agencies that are as sheltered as the CFPB from congressional control. In the Supreme Court term that just concluded, they said the same of similar removal restrictions for the single head of the Federal Housing Finance Agency. 

The evolution of all this Supreme Court precedent led to the July 8 Biden Justice Department’s memo on the President’s authority to remove the head of the Social Security Administration for whatever reason he liked.

Many heads or one, though, this whole independent regulatory apparatus violates Madison’s original sound reasoning about the “chain of dependence” running from the people to the President to his subordinates. If the multi-member commissions like the FTC and FCC were constitutional affronts since their creation, the CFPB is an abomination. We should make them all accountable to the President by having their executives serve at his pleasure, like his cabinet officers. If Congress is queasy about that much power in the executive, they can restructure their chambers to do a lot more regulatory work and a lot less delegation to agencies, which have become junior varsity congresses that often harass and despoil the American people with no oversight by the normal separation of powers.

Republicans, as usual, are protesting stupidly about this (they of course won’t do anything about it). Mitch McConnell, echoing Chuck Grassley, tweeted “This removal would be an unprecedented and dangerous politicization of the Social Security Administration.” This concedes the Left’s now 100+ year old conceit that you can have “neutral,” expert, and non-political oversight of government policy. Even though it’s the constitutionally cavalier Biden administration pursuing this removal, it would be a welcome and long-overdue restoration of constitutional politics to policy and rulemaking. Any would-be Republican successor ought to be taking notes and preparing to kick down this now half-open door, to the benefit of the American people and our constitutional order.