Biden’s Firing Spree

The new White House has sought dismissals of Trump holdovers to an unusual degree — though media outrage is muted this time.

February 15, 2021 • Commentary

This article appeared on National Review (Online) on February 15, 2021.

Earlier this month, the White House sought resignations from U.S. attorneys holding over from the previous administration. Media outrage at similar moves by Donald Trump and George W. Bush (but not Barack Obama) notwithstanding, the request is standard, if coming somewhat sooner than normal. Elsewhere, Joe Biden’s firing decisions evoke his predecessor’s style in their disregard for long‐​established precedent. Beyond busting norms, these dismissals might signal a major shift in the president’s relationship with the administrative state.

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.

More generally, Seila Law undermined the constitutional basis for independent agencies. Article II establishes a system whereby inferior officers report to principal officers, who report to the president. With this “chain of dependence,” as James Madison termed it, the Founders ensured accountability. Independent agencies disrupt this framework. When the president agrees with an unpopular decision by an independent agency, he can claim that his hands were tied. And when a president disagrees, then the policy‐​maker answers to no one — and the only thing worse than presidential overreach is unmoored power. In theory these agencies act as neutral policy‐​makers whose expertise is unfettered by political meddling. In practice, good‐​governance gains are offset by constitutional harms.

The NLRB general counsel is precisely the sort of “fourth branch” independent office that was rejected in Seila Law, so there’s nothing illegal in dismissing him, even if it looks bad. But not all the dismissed appointees are going quietly as they nurse their bruised norms. A day after his dismissal from the Council of the Administrative Conference, Roger Severino sought a temporary restraining order against his removal.

The case is one to keep an eye on. For those who take the separation of powers seriously, it has a “don’t throw us in the briar patch” quality. On one hand, a Biden victory would reflect the further diminishment of politically unaccountable agencies, perhaps even overturning Humphrey’s Executor v. United States, the New Deal–era case at the heart of the modern administrative state. On the other hand, a return to traditional practice would mean the return of appointees skeptical of agency growth and respectful of the limits of federal power.

In other words, by making these divisive personnel moves, Biden has at least solidified presidential control over the executive branch. Maybe that’s what he meant by “unity.”

About the Authors
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.