The most prominent example is Peter Robb, who last month became the first‐ever general counsel of the National Labor Relations Board to be fired. The NLRB general counsel prosecutes unfair labor practices, and presidents historically have respected the office’s four‐year term. During the Trump administration, Richard Griffin, a Democrat appointed by Obama, served for nine months, until his term expired. Despite 70 years of bipartisan tradition, President Biden fired Robb on Day One, after his dismissal had become a political priority for unions.
Robb’s isn’t the only dismissal to raise eyebrows. More recently, the Biden administration fired four conservatives before the expiration of their three‐year stints on the Council of the Administrative Conference of the United States, an advisory body of regulatory experts. Two Trump appointees were summarily dismissed before the end of their six‐year terms on the National Capital Planning Commission, which regulates the development of federal property in the District of Columbia. All ten members of the Federal Services Impasse Panel, which resolves disputes between federal agencies and their unionized employees, were also replaced.
As a legal matter, these firings are controversial because they involve offices widely thought to be “independent.” At most agencies, the president can fire leadership at will. But at a subset of agencies, the president can remove leadership only “for cause,” which basically means that those officials can disagree with the president without losing their job. Well, if the sine qua non of agency independence is that their leaders cannot be fired, then how did Biden just dismiss these officeholders?
It turns out that we don’t know which agencies are truly independent, for two reasons. First, the Supreme Court has never been clear in setting forth the constitutional basis for such structures. Second, presidents have rarely pressed the issue, instead respecting the independence of agencies — even where Congress wasn’t explicit in affording political insulation — that carry the trappings of independence, such as decision‐making by a multi‐member commission, set terms, and expertise requirements for appointees.
Biden is now pushing the envelope of the president’s management authority. The cosmic irony is that this is about the only Trump initiative the Biden administration hasn’t reversed. Biden’s conduct also resurrects the Bush‐era debate over the “unitary executive,” which, contrary to progressive pearl‐clutching, is all about chain of command, not the scope of executive power.
Last year, in a case called Seila Law v. CFPB, the Supreme Court rejected full independence for the Consumer Finance Protection Bureau. The constitutional issue was that the bureau was headed by a single director rather than a multi‐member commission, giving too much power to a single official not directly accountable to the president. Instead of defending that structure, the Trump administration argued that the CFPB director should be subject to at‐will removal — and the Supreme Court agreed.