Joe Biden
President Joe Biden meet with union and business leaders to discuss the Bipartisan Infrastructure Framework in the Roosevelt Room of the White House in Washington, Thursday, July 22, 2021. (AP Photo/Andrew Harnik) Credit: AP

On July 9 President Joe Biden fired Andrew Saul, the Trump-appointed commissioner of the Social Security Administration. That action rid the administration of a Republican holdover. It should also serve as a reminder to William Barr and other right-wing champions of a doctrine called unitary executive theory that when you favor outsized executive power, it can be used against you.

Saul infuriated Democrats earlier this year by slowing the distribution of Covid checks. In 2019, he antagonized his agency’s workforce by unilaterally canceling a popular telework program without consulting the agency’s union, the American Federation of Government Employees. When Biden asked him to resign, he didn’t.

That left Biden with two bad choices.

He could (and did) fire Saul, taking advantage of recent Supreme Court cases that ratified a broad understanding of presidential power to dismiss even so-called independent administrators. These decisions advanced a campaign conducted chiefly by conservative legal theorists eager to invalidate limits on the president’s power over independent agencies. Firing Saul meant aligning Biden, in practice if not in theory, with right-wing advocates for centralizing all executive policymaking power in the White House, potentially paving the way for a yet more autocratic presidency.

Or,  Biden could (but didn’t) live with Saul four more years, disarming himself unilaterally by keeping a Trump appointee badly out of sync with his agenda who lacked support among key Democratic constituencies.

Of the two bad choices, Biden took the path that was tactically superior. But the better of two bad choices is still a bad choice.

The Social Security Administration is one of dozens of “independent” agencies, like the Federal Trade Commission or the Nuclear Regulatory Commission, with which the president is not supposed to interfere. He may nominate agency heads for statutorily fixed terms, but he is not, by statute, allowed to fire them except for cause.

Confirmed by a Senate vote of 77-16 in 2019, Saul was serving a 6-year  term that was set to expire in 2025. Under the amended Social Security law, a commissioner “may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office.” President Biden made no such finding. Press reports quoted a White House statement asserting in general terms that Saul “undermined and politicized Social Security disability benefits” and “reduced due process protections for benefits appeals hearings.” But the words “neglect” and “malfeasance” were missing.

What the Washington Post characterized only as “a White House statement” cited other reasons for Saul’s discharge: “terminat[ing] the agency’s telework policy that was utilized by up to 25 percent of the agency’s workforce, not repair[ing] SSA’s relationships with relevant Federal employee unions including in the context of COVID-19 workplace safety planning, . . . and tak[ing] other actions that run contrary to the mission of the agency and the President’s policy agenda.” These sound more like policy disagreements than charges of misconduct.

Biden’s apparent disregard for Saul’s statutory tenure protection evoked none of the immediate outcry surrounding either President Richard Nixon’s firing of Watergate prosecutor Archibald Cox, or even President Barack Obama’s appearance at a press conference wearing a beige suit. For that matter, no one seems to have noticed that, on Biden’s first day in office, he identified the Senate-confirmed Saul as one of thirty-four temporary “acting” administrators who would serve in “the Biden-Harris administration until permanent leadership can be confirmed by the U.S. Senate.” This in itself was a legally bold move. Converting Saul from a permanent appointee to an “acting” one was a demotion.

The Saul episode marks an ironic stage in a forty-year campaign—led overwhelmingly by conservative Republican lawyers, judges, and academics—to resurrect an expansive view of presidential control over the executive bureaucracy. What is at stake is whether, with little regard for Congress or the courts, Article II of the Constitution can be interpreted to give the president unaccountable power to steer virtually all executive branch policy making. The conventional view throughout most of American history was more oriented towards checks and balances. Congress has wide-ranging authority to set limits on the direct presidential control of public administration. This includes powers to limit the president’s authority to fire subordinate officials or to vest administrative functions in officials, such as the vice president, whom a president cannot remove. The First Congress relied on such powers in 1790 to create the independent Sinking Fund Commission, and, in a later century, to create such agencies as the Board of Governors of the Federal Reserve System, the National Labor Relations Board, and the Federal Communications Commission.

Contrary to the checks-and-balances view, “unitary executive theory,” as it is commonly known, argues that presidents are constitutionally entitled to direct personally how every administrative officer in the executive branch implements whatever functions Congress has vested in these officers by statute. Supposedly implicit in that authority is a presidential power guaranteed by the Constitution to remove at will any civil officer of the United States. Having no doubt been briefed on unitary executive theory by the right-wing legal staff he assembled, Trump readily made the leap from the niceties of legal doctrine to “I have to the right to do whatever I want as president.”

The argument for unbridled presidential removal power was laid out nearly a century ago by Chief Justice (and former President) William Howard Taft. Myers v. United States posed a narrow question—whether Congress could insist on Senate consent when the president discharged a Senate-confirmed officer. The Court could easily have rejected this idea without Taft’s expansive opinion, written for a six-Justice majority. In Taft’s view, the vesting of executive power in the President logically implied a comprehensive power to remove subordinate officers:

The ordinary duties of officers prescribed by statute come under the general administrative control of the President by virtue of the general grant to him of the executive power, and he may properly supervise and guide their construction of the statutes under which they act in order to secure that unitary and uniform execution of the laws which Article II of the Constitution evidently contemplated in vesting general executive power in the President alone.

Taft argued that the first Congress adopted this view—a reading of history that legal historian Jed Shugerman, among others, has thoroughly debunked.

Nine years after Myers, the Court unanimously rejected Taft’s broad rhetoric. The 1935 decision in Humphrey’s Executor v. United States, authored by Justice George Sutherland, held that Congress acted constitutionally in permitting presidents to fire Federal Trade Commissioners only in cases of “inefficiency, neglect of duty, or malfeasance in office.” The Court distinguished between the discharge of “executive power in the constitutional sense,” which presidents do get to control, from the exercise of “executive functions” performed by administrative agencies “in the discharge and effectuation of . . . quasi-legislative or quasi-judicial powers.”

The first of these categories would presumably include those substantive powers explicitly vested by Article II, such as the president’s powers to negotiate treaties, issue pardons, or command the armed forces. The second category would include administrative functions, such as hiring staff or issuing subpoenas, that agencies would have to perform in order to carry out missions rooted entirely in statutes. Some of those functions, like issuing anti-pollution rules, are “quasi-legislative,” in the sense that the agency is creating regulations in a way that resembles statutory drafting. Others, like deciding on applications for Social Security benefits, are “quasi-adjudicative.” The agency task resembles that of a court in applying pre-existing rules to the facts of particular cases.

For executive branch activities unrelated to presidential powers spelled out in Article II, the Court held Congress had power to specify the boundaries of presidential supervision and control. The Constitution authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Congress might find it “necessary and proper” to shield certain federal regulators or administrative adjudicators from at-will removal by a president. Until the advent of the Roberts Court, the Court repeatedly adhered to that view —most famously in Morrison v. Olson, the 1988 decision that approved the constitutionality of tenure protection for independent counsels.

That didn’t sit well with conservatives working in the Reagan administration, including pivotal figures helping later to launch the Federalist Society. They began in the 1980s to champion unitary executive theory as the only sound view of executive power under the Constitution. They proffered a highly partial reading of the constitutional text and its surrounding history. In 1787, they argued, educated readers would have interpreted Article II of the Constitution to mean that the executive was “unitary,” and that this means that “all” power the executive branch possesses to carry out laws enacted by Congress is vested in just one person, the president. For conservatives, such advocacy was a complete ideological reversal. From the New Deal on, it was the right, not New Dealers and their successors, that worried about excesses of presidential authority. But with Reagan’s election, the theory of the unitary executive could be used to jerk national policy sharply rightward. The unitary executive became the object of a genuine political campaign.

Today, key adherents—including Chief Justice John Roberts and Associate Justices Samuel Alito and Brett Kavanaugh—are well-situated to remake separation of powers law in a firm presidentialist direction. They may be poised to further the cause in an apparently frivolous current lawsuit by a Trump holdover whom Biden fired within weeks of taking office. Severino v. Biden seems calculated less to keep the complainant in office than to elicit further utterances by judicial alumni of the Federalist Society casting doubt on the constitutionality of independent agencies.

It’s worth considering some of the implications of holding independent agencies unconstitutional. A president like Trump could have fired at will any member of the Federal Communications Commission who failed to threaten the license of broadcasters deemed hostile to conservative causes. If Trump were to return for a second term, he could discharge any FTC Commissioner who voted to look at the possibly unfair trade practices of a major political donor. Most alarmingly, the United States would become the only major Western economy constitutionally disabled from having an independent central bank—the Fed. As a consequence, regulatory efforts to control inflation could be short-circuited whenever inconvenient for an incumbent President’s next political campaign.

The Roberts Court has edged towards upending independent administration in three key opinions. The first, a 5-4 2010 decision entitled Free Enterprise Fund v. Public Company Oversight Accounting Board, held it unconstitutional for Congress to allow tenure-protected administrators—specifically, members of the Securities and Exchange Commission—to appoint subordinate tenure-protected administrators, the members of the PCAOB. In other words, if you are the head of an agency and the president cannot fire you at will, then everyone you appoint to a position that reports to you has to be someone whom you or the president can fire at will. The majority opinion, penned by Roberts, argued that a double layer of protection against at-will discharge rendered the PCAOB too unaccountable to the President. The majority’s concern for presidential authority—”the President cannot ‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers who execute them”—clearly signaled uneasiness with the reasoning of Humphrey’s Executor.

Last year, in another 5-4 decision, Seila Law LLC v. Consumer Financial Protection Bureau, the majority, again through Chief Justice Roberts, held that the rationale of Humphrey’s Executor didn’t apply to agencies that have only a single administrator. According to the majority, Myers’ endorsement of comprehensive removal power, not Humphrey’s Executor, stated the constitutional baseline: the president is entitled to fire all civil officers of the United States at will. Under Humphrey’s Executor, this reasoning runs, the Court went no further than up uphold a specific kind of independent agency, “a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.”

With Justice Amy Coney Barrett succeeding Justice Ruth Bader Ginsburg, the conservative wing mustered a 6-3 vote last month to invalidate tenure protection for the head of another single-headed agency, the Federal Housing Finance Authority. Writing for the majority in Collins v. Yellen, Justice Samuel Alito seemed to go yet further than Seila Law, stating that “the nature and breadth of an agency’s authority is not dispositive in determining whether Congress may limit the President’s power to remove its head.” In other words, even if an administrator is not exercising what would historically have counted as “executive” power, the alleged virtues of accountability to the president “are implicated whenever an agency does important work.”

As Commissioner Saul’s firing was being announced, the Biden Administration released an Office of Legal Counsel opinion explaining that the statutory terms protecting Saul’s tenure were unconstitutional under Seila Law and Collins. The acting assistant attorney general who signed the opinion is Dawn Johnsen, one of the nation’s most respected progressive lawyers. Johnsen served in a similar capacity at the end of the Clinton Administration; Barack Obama had also nominated her for that spot, but withdrew the nomination after attacks from the right. Some progressives may interpret her memo as endorsing unitary executive theory as sound constitutional interpretation. Johnsen’s opinion was actually worded far more carefully than that. But there’s no denying that the conservative campaign for unitary executive theory enabled the firing of a conservative who was using his tenure-protected post to work against unions and the interests of low-income Americans.

Divesting the Social Security Commissioner of tenure protection seems to end a different threat to independent administration created by the Roberts Court with its 2010 Free Enterprise Fund decision. After that case, many progressives worried that the Court’s ban on two-layered tenure protection meant that the tenure-protected corps of Social Security administrative law judges—ALJs—would be susceptible to further politicization. Why? Under Free Enterprise Fund, it was arguably unconstitutional for a tenure-protected Commissioner of Social Security to appoint tenure-protected ALJs. As long as the Commissioner could be fired only for cause, ALJs might have to be subject to at-will firing. That would mean, for example, that an ALJ could be fired simply for being too sympathetic towards disability claimants. If, however, the Social Security Commissioner is himself or herself subject to at-will firing, having tenure-protected ALJs reporting to the Commissioner no longer poses a constitutional problem.

Preserving the Social Security ALJs’ statutory protections against at-will removal is an attractive feature of Biden’s tactical choice, even as the increasing politicization of administrative adjudication remains an ongoing risk throughout the executive branch. (For example, at the Social Security Administration, controversy persists over the potential impact of a Trump-era rule that expands the range of Social Security hearings that may be conducted by Administrative Appeals Judges (AAJs).  In publishing that rule, SSA contended that its different groups of adjudicators “have equivalent decisional independence,” and the agency “would not compromise the integrity and fairness of our programs by infringing upon an AAJ’s ability to exercise independent judgment and discretion in individual cases.” Yet Judge Melissa McIntosh, president of the Association of Administrative Law Judges, points out that AAJs, unlike ALJs, are eligible for performance bonuses and subject to performance reviews, which can compromise their judgment.)

In spite of all this, the Saul episode is troubling. As Mark Joseph Stern has written, “The Supreme Court’s embrace of the unitary executive left Biden with [only] two options: unilateral disarmament or hardball politics.” But Biden’s choosing the latter dramatizes a worrisome dynamic with regard to checks and balances.

No matter what the threshold philosophical outlook of a president, the scope of executive power—unless confined by Congress or the courts—only expands. Presidents may talk about constitutional theory, but their daily reality is simply brute urgency to get their policies and people in place. No president cuts back executive authority. Modern-day progressive lawyers on the Democratic side wouldn’t likely have championed unitary executive theory before. When it comes to conducting legislative oversight, or delegating broadly worded authorities to administrative agencies, or designing the internal structure of the regulatory state, progressives are still most often on Congress’s side. But the authority conservatives hoped to ratify for Reagan and his conservative successors works for Democratic presidents, too. To the extent such broad readings of Article II run the risk of future authoritarianism, it will not be presidents who repudiate them—not even Democratic presidents.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. Follow Peter on Twitter at @petermshane