At Volokh Conspiracy, Josh Blackman: The Constitutional Analysis Behind President Biden's Firing of the SSA Commissioner. From the introduction:
In 1994, Congress restructured the Social Security Administration (SSA). For the prior five decades, the single-member Commissioner could be removed at will. But 42 U.S.C. § 902(a)(3) granted the Commissioner a fixed six-year term, and tenure protections. He could "be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office. At the time, OLC Head Walter Dellinger wrote that the restrictions present a "serous constitutional question." President Clinton issued a signing statement, asking Congress to enact a "corrective amendment." Congress took no such action.
For the past quarter century, the SSA Commissioner has served with tenure protections. And, as far as I am aware, there has never been an attempt to fire the SSA Commissioner. Until Friday, July 9. President Biden fired Commissioner Andrew Saul, a Trump holdover who was appointed to a six-year term in 2019. And, according to reports, Saul said he isn't leaving. He said, "I consider myself the term-protected Commissioner of Social Security." Saul plans to be at work Monday morning–though he will work remotely from New York.
Here is the Office of Legal Counsel (OLC) opinion endorsing the President's action, concluding:
In Collins v. Yellen, 141 S. Ct. 1761 (2021), the Supreme Court recently concluded that a provision requiring “cause” for the removal of the Director of the Federal Housing Finance Agency (“FHFA”) is unconstitutional. That case followed Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020), in which the Court held unconstitutional a similar statutory tenure protection conferred on the Director of the Consumer Financial Protection Bureau (“CFPB”). We think the best reading of Collins and Seila Law leads to the conclusion that, notwithstanding the statutory limitation on removal, the President can remove the SSA Commissioner at will.
Agreed, both as to the effect of Collins and Seila, and as to the correct outcome from originalist principles. The (single) head of the Social Security Administration exercises executive power and accordingly the President must control his actions, including through the ability to remove him from office if the President chooses, because all of the "executive Power" is vested in the President by the Constitution's Article II, Section 1. (See Morrison v. Olson, Scalia dissenting). Note that both President Clinton and President Biden (as well as Republican Presidents). endorse this view of the so-called "unitary executive."
It's true that the Court in Humphrey's Executor v. United States allowed statutory restrictions on presidential removal of members of the Federal Trade Commission. But that opinion was confused in its reasoning and contrary to the original meaning of the "executive Power." Whether or not it should be overruled, it shouldn't be extended — and in Seila and Collins the Court — rightly, in my view — declined to extend it from a multimember board (in Humphrey's Executor) to an agency's sole director. As I've argued elsewhere, whatever one thinks of overruling precedent, an aggressive version of the decline-to-extend directive is a way to turn the trajectory of the Court's decisions back toward originalist principles without overruling anything.
Professor Blackman flags the additional issue of the effect of the SSA's tenure provision being unconstitutional:
But to be more precise, OLC would sever the unconstitutional tenure protections from the remainder of the statute:
We think it clear that the SSA Commissioner's removal protection is severable from the remainder of the SSA organic statute, just as the Court in Seila Law determined that the removal protection provision for the CFPB Director was severable from the remainder of the Dodd-Frank Act.
It is strange for the executive branch to engage in a severability analysis. Unlike the courts, the President is not a disinterested party. And he has every interest in aggrandizing the maximum power for himself. Here, OLC performed that surgical excision. The SSA keeps all of its powers, but now the President can remove the Commissioner at will. This version of the law was certainly not the statute Congress enacted. But it was the version President Clinton, and now President Biden prefer.
This is the issue that divided the Court's majority in Collins, with Justice Gorsuch arguing that the unconstitutional removal provision made the agency head's actions void as ultra vires. I'm less sure what I think about that question.
Posted at 6:35 AM