President Biden flexed his Article II executive powers last week [July 9] when he decided to fire the holdover Trump appointee Andrew Saul from his position as Social Security commissioner. Saul, a Republican campaign donor, was Trump’s choice in 2019 to head the sprawling government agency that is of vital importance to the millions of Americans who depend on Social Security for their retirements or for disability or survivor benefits.
Saul, a Wharton-trained businessman who had prior government experience in the Bush administration as head of the Federal Thrift Retirement Investment Board, won Senate confirmation to the Social Security post on a bipartisan 77-17 vote in the Republican majority Senate. But he drew widespread criticism during his two-year tenure from Democratic officeholders, including the Democratic chairman of the House committee that oversees the Social Security Administration; from the union representing Social Security employees; and from advocacy groups representing senior citizens and disability beneficiaries.
A White House official cited some of those criticisms to CNN in advance of the president’s decision to fire Saul after Saul had refused Biden’s request to resign. Saul reported to work on Friday despite the firing by citing a provision of the Social Security Act that gives the commissioner a fixed six-year term subject to removal only for cause. Congress included that provision in revising the Social Security Administration’s charter in the 1990s by removing it from the Health and Human Services Department and restoring it as an independent federal agency. With 60,000 employees, SSA is one of the government’s biggest agencies: that number includes the hundreds of administrative law judges (ALJs) who rule on disability claims and other disputes on benefits.
Saul
had antagonized the agency’s ALJs early in his tenure by shifting adjudication
of those cases from ALJs to agency attorneys[, according to the Washington Post’s
account of the firing. Saul also antagonized the union representing most of the
agency’s employees by imposing contracts with provisions that were not fully
negotiated through collective bargaining.
Republicans
on Capitol Hill were quick to criticize Biden’s decision as the news spread even
before the official announcement. The Senate’s Republican leader, Kentucky’s
Mitch McConnell, took to Twitter to denounce the reported removal as “a
dangerous and unprecedented politicization of the Social Security
Administration.”
The unidentified
White House official who briefed CNN on the dismissal accused Saul instead of
politicizing the agency. “"Since taking office,” the official was
quoted as saying, “Commissioner Saul has undermined and politicized Social
Security disability benefits, terminated the agency's telework policy that was
utilized by up to 25 percent of the agency's workforce, not repaired SSA's
relationships with relevant Federal employee unions including in the context of
COVID-19 workplace safety planning, reduced due process protections for
benefits appeals hearings, and taken other actions that run contrary to the
mission of the agency and the President's policy agenda."
Ironically perhaps, Biden’s path to the
ouster depends on two Supreme Court decision written by Republican-appointed
justices that elevate presidential power over congressional efforts to grant tenure
protections to the directors of politically sensitive agencies. The Trump
administration helped win the first of the two decisions by urging the Court in
its previous term to strike down a provision that the president could fire the head
of the newly created Consumer Financial Protection Bureau (CFPB) not at will but only for cause.
The Court’s decision in that case, Seila
Law v. Consumer Financial Protection Bureau (2020), came on a 5-4 vote that
pitted what were then the Court’s five Republican-appointed justices against
the four Democratic appointees. In creating the CFPB, the then
Democratic-majority Congress had stressed the need to give the director of the
new agency protection from political interference by the White House. In its
decision, the Supreme Court instead held that the arrangement violated separation-of-powers
by limiting the president’s power to supervise the agency.
The Court cited that decision just last month
[June 21] in a decision, Collins v. Yellen that struck down for the same
reason a similar for-cause removal provision protecting the director of the
Federal Home Finance Agency (FHFA). Writing for what are now the six
Republican-appointees, Justice Samuel A. Alito Jr. struck down the tenure
protection for the FHFA director based on what he called “a straightforward
application” of the earlier decision. Justice Elena Kagan, who had led the four
dissenters in the CFPB case, wrote for the three still-serving Democratic
appointees in disagreeing with Alito’s conclusion.
The OLC memo, dated July 8, cited the Court’s two decisions as authority
for concluding that the tenure protection for the Social Security chief is now unenforceable.
The nine-page memo noted that OLC had
raised questions about the constitutionality of the provision when it was
enacted in 1994.
The Court’s newest decision, the Justice
Department lawyers concluded, eliminated any legal basis for tenure protection
for the Social Security chief. “Collins
narrows the arguments available to meaningfully distinguish the SSA
Commissioner’s statutory removal protection from the provision found
unconstitutional in Seila Law,” the lawyers wrote.
“We
believe that the best reading of those decisions compels the conclusion that
the statutory restriction on removing the Commissioner is unconstitutional.,”
the lawyer wrote. “Therefore, the President may remove the Commissioner at
will.” For his part, Saul was still vowing at week’s end to try to protect what
he regards as his rights.
No comments:
Post a Comment