President Biden has fired Social Security Commissioner Andrew Saul, but the commissioner insists Biden doesn’t have that power.
"Saul said in an interview Friday afternoon that he would not leave his post, challenging the legality of the White House move to oust him," The Washington Post reported. "As the head of an independent agency whose leadership does not normally change with a new administration, Saul’s six-year term was supposed to last until January 2025," the Post said.
On the substance, Commissioner Saul — appointed by President Trump after previous public service on the boards of New York's Metropolitan Transportation Authority (MTA) (appointed by Governor George Pataki) and the Federal Thrift Investment Board (appointed by President George W. Bush) — is a Republican and surely closer to my own views than anyone Biden might pick.
This is especially so as Biden comes under pressure from his party’s Left wing to increase payroll taxes on high earners, or to apply the Social Security tax to non-wage income. The Medicare tax was already expanded to nonwage income for high earners to help pay for Obamacare.
But on the process — the president’s power to fire any executive branch employee — my reading of the Constitution is that Biden has by far the better of it.
Saul’s greatest public service may be that by refusing to leave he would give the courts an opportunity to clarify the matter.
It might seem like an obscure legal point.
The commissioner of Social Security isn’t exactly a household name, after all.
Taxes get withheld, and benefits paid, reliably regardless of who is in charge.
The issue, though, goes right to the heart of our democracy.
Saul’s "Message from the Commissioner" biography page, since wiped from the Social Security website, had described the Social Security Administration as "an independent federal agency headquartered in suburban Baltimore with over 63,000 employees nationwide."
The Constitution, however, provides for no such "independent" federal agencies.
It provides for executive, legislative, and judicial branches of government.
If an agency is part of the government, it needs to be one of those three.
In the case of the executive branch, the "unitary executive" theory holds that it all needs to be accountable to the president, who was elected by, and is answerable to, the voters.
There are plenty of reasons that Congress may be tempted to design setups that appear more independent, including terms longer than four years.
The independence of the Federal Reserve, for example, is said to reduce the temptation of politicians to goose growth in the runup to an election, at the expense of maintaining currency with a stable value.
Independence at the Securities and Exchange Commission (SEC) might prevent the perception that enforcement is driven by political grudges rather than impartial application of the law.
Independence at Social Security may curb a politician’s strong temptation to defer dealing with future solvency issues until someone else is in office.
If politics were really so dangerous, though, one might as well go all the way and replace the presidency itself with a bipartisan commission serving staggered ten-year terms. That was not Madison’s plan.
The Supreme Court has been sorting out this issue now for nearly a century.
In Myers v. United States, 272 U.S. 52 (1926), a case about President Wilson’s power to fire a postmaster, the court found, "The President is empowered by the Constitution to remove any executive officer appointed by him by and with the advice and consent of the Senate, and this power is not subject in its exercise to the assent of the Senate, nor can it be made so by an act of Congress. . . Removal of executive officials from office is an executive function; the power to remove, like the power to appoint, is part of 'the Executive power,' — a conclusion which is confirmed by the obligation 'to take care that the laws be faithfully executed.'"
Myers was constrained in Humphrey’s Executor v. United States, 295 U.S. 602 (1935), when the court ruled that President Franklin Roosevelt lacked the power to remove a President Hoover-appointed Federal Trade Commissioner on policy grounds.
The court revisited the issue in Free Enterprise Fund v. PCAOB 561 U.S. 477 (2010).
It found that Public Company Accounting Oversight Board members were too insulated from the authority of the president. As Chief Justice Roberts wrote, "the diffusion of power carries with it a diffusion of accountability."
Robert wrote, quoting Federalist 70: "Without a clear and effective chain of command, the public cannot ‘determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall.'"
Wrote Justice Roberts: "One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive’s control, and thus from that of the people."
Justice Breyer, dissenting in Free Enterprise Fund v. PCAOB, warned that he saw no way "to avoid sweeping hundreds, perhaps thousands of high level government officials within the scope of the Court’s holding, putting their job security and their administrative actions and decisions constitutionally at risk." Among them, Breyer wrote, were "virtually all of the leadership of the Social Security Administration."
Breyer’s dissent included an "Appendix A" listing 24 "stand-alone federal agencies whose heads are, by statute, removable by the President only 'for cause,'" among them the Social Security Administration, where a statute quoted in the Breyer Appendix says "Commissioner may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office."
That explains Saul’s statement to The Washington Post, "I quite frankly feel I’m doing an excellent job there." The Justice Department’s position, though, is that how good a job Saul is, or was, doing is irrelevant.
In a memo, the department cites two more recent Supreme Court cases, Collins v. Yellen and Seila Law LLC v. Consumer Financial Protection Bureau, supporting the opinion that the “for cause” provision is unconstitutional, and that the president may remove the commissioner "at will."
Congressional Republicans have taken a disappointingly opportunistic, rather than principled, stance on the firing. "This removal would be an unprecedented and dangerous politicization of the Social Security Administration," the Republican leader in the Senate, Mitch McConnell tweeted.
"It is disappointing that the Administration is injecting politics into the agency," said a joint statement from House Ways and Means Republican Leader Kevin Brady and U.S. Senate Finance Committee Ranking Member Mike Crapo.
The idea that the Social Security Administration should be apolitical is humorous to anyone who has watched Democrats run for generations taking credit for the program or observed President George W. Bush at the 2004 Republican National Convention say, "We must strengthen Social Security by allowing younger workers to save some of their taxes in a personal account — a nest egg you can call your own, and government can never take away."
One worse thing than politicizing the Social Security administration would be to let the people who lost the election keep running it, even when the president who won the election wants to put his own person in there.
Republicans may want to keep that principle in mind. The next time they win the White House, they’ll want their own appointees, not Biden holdovers.
Anything less would underscore Justice Roberts’ concern that the government "may slip from the Executive’s control, and thus from that of the people."
Ira Stoll is editor of FutureOfCapitalism.com and author of "JFK, Conservative." Read Ira Stoll's Reports — More Here.
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