Saturday, July 10, 2021

Court's Role in Ouster of Social Security Chief

            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.





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