The Constitutional Analysis Behind President Biden's Firing of the SSA Commissioner

OLC Acting Head Dawn Johnsen: "The President need not heed the Commissioner's statutory tenure protection."

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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. Not since the bizarre Leandra English debacle at the CFPB have there been two people laying claim to a federal position.

On July 8–the day before Saul was fired–the Office of Legal Counsel published an opinion on this exact issue. What perfect timing! Acting OLC Head Dawn Johnsen concluded that "The President may remove the Commissioner of Social Security at will notwithstanding the statutory limitation on removal in 42 U.S.C. § 902(a)(3)." At some point before July 8, the White House Deputy Counsel asked OLC "about the scope of the President's constitutional authority to remove" the SSA Commissioner. And OLC gave just the answer the Counsel was looking for: in light of Seila Law and Collins, the single-director SSA head cannot have for-cause tenure protections.  I think that conclusion is correct.

This opinion should not come as a surprise. The analysis was telegraphed in both Seila Law and Collins. In Seila Law, Chief Justice Roberts made a feeble effort to distinguish the CFPB head with the SSA head:

In addition, unlike the CFPB, the SSA lacks the authority to bring enforcement actions against private parties. Its role is largely limited to adjudicating claims for Social Security benefits.

But that distinction had a one-year expiration date. Collins declared unconstitutional the FHFA's structure. In a footnote, the Court bid adieu to the SSA Commissioner's tenure protections:

Amicus warns that if the Court holds that the Recovery Act's removal restriction violates the Constitution, the decision will "call into question many other aspects of the Federal Government." Brief for Court-Appointed Amicus Curiae 47. Amicus points to the Social Security Administration, the Office of Special Counsel, the Comptroller, "multi-member agencies for which the chair is nominated by the President and confirmed by the Senate to a fixed term," and the Civil Service. Id., at 48 (emphasis deleted). None of these agencies is before us, and we do not comment on the constitutionality of any removal restriction that applies to their officers.

Amicus Aaron Nielson was exactly right. Justice Kagan sounded a similar warning in her dissent:

The SSA has a single head with for-cause removal protection; so a betting person might wager that the agency's removal provision is next on the chopping block.

The SSA head didn't even make it a month after Collins. And President Biden was the executioner.

In light of these two precedents, OLC reached the correct conclusion:

But we think that under Collins and Seila Law, the combination of features of the SSA—a single Commissioner whose term extends longer than the President's, the immense scope of the agency's programs, the Commissioner's broad power to affect beneficiaries and the public fisc, and the SSA's largely unparalleled structure—means that the President need not heed the Commissioner's statutory tenure protection in 42 U.S.C. § 902(a)(3).

I could not find the phrase "need not heed" in any Attorney General Opinions. As best as I can tell, this phrase is novel. In 1994, Dellinger phrase the concept a bit differently: "there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional." But Johnsen simply said the President "need not heed" the statutory protections. In other words, the President can simply ignore the tenure protections. Thus, the President can fire the Commissioner at will, without having to show cause.

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.

What happens next? Saul may file seek a writ of quo waranto to determine who is the correct head of SSA. (Sam Bray wrote about this ancient writ in the context of the CFPB back in 2017). This approach could seek some sort of emergency ruling that would quickly put him back in power. Or, at some point, the executive branch will cut off Saul's salary. And Saul could then sue for backpay. William Humphrey chose this latter route after FDR fired him. The downside of this second path is that Saul would not be reinstated. I've long questioned whether a Court would even have the power to reinstate an officer who was improperly removed. Then again, if the tenure protections were valid, and Biden failed to comply with the for-cause protections, then Saul would have never been removed in the first place. So there is no need to order any reinstatement. Justice Thomas hints at the converse of this approach in his Collins concurrence.

Right now, Chief Justice Roberts is no doubt salivating: he gets to rule in favor of President Biden, hold the structure of the SSA is unconstitutional, and avoid having to declare anything else invalid. A dream case for the Chief! But what about poor Justice Kagan? She will have to follow Collins because of stare decisis. She even predicted that the SSA Commissioner will fall. But she won't like it.

One final note. We still do not have confirmed Assistant Attorney General of OLC. Dawn Johnsen has been acting now for several months. Back in the Obama administration, Republicans blocked her nomination to OLC head. It is only fitting that she issued a monumentally significant opinion, in an acting capacity. There is a paragraph on page 8 that pays homage to Justice Kagan's Seila Law dissent. But OLC quickly turns around and embraces the Chief's majority opinion. The unitary executive abides.

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  1. “We still do not have a nominee for Assistant Attorney General of OLC.”

    Christopher Schroeder was nominated almost three months ago.

  2. Unlike Trump’s firing of Comey, this was not an obstruction of justice.

    1. Trumps firing of Comey under the most recent presents likely required no further justification than “because I can.”

        1. The best precedents are presents to yourself.

      1. Actually he couldn’t.

        Clinton dearly would have loved to fire Louis Freeh. Why didn’t he?

        1. Clinton also tried to use the line item veto.

          What a President tries to do, or not do, is sometimes orthogonal to what they can do.

          Clinton could have fired Freeh under recent precedent.

          1. “It’s ok now because a Republican President has done it.”

        2. Smh… Bill Clinton fired William Sessions who was FBI director.

          Try again, shipwreck.

      2. Trumps firing of Comey under the most recent presents (sic) likely required no further justification than “because I can.”

        The authority to fire Comey for no reason isn’t the authority to fire him for an illicit reason consequence-free. I can fire an at-will employee because I don’t like his face or because I woke up on the wrong side of the bed. But if I fire him because he’s disabled or Christian or gay, I’m gonna have a price to pay. Likewise if POTUS fires an FBI Director because he’s tall or a Yankees fan, no problem. But if he fires him to slow down a criminal investigation POTUS fears will inculpate POTUS or POTUS’s friends, that’s obstruction of justice.

        1. Yes…he has a political price to pay. The question is can Congress attach laws to the exercise of another branch’s plenary powers.

          This means mundane normal laws like obstruction of justice or statutorily-created rights. Remember the president can be guilty of obstruction if he lies to a police officer. It’s deeply problematic to argue obstruction when its the exercise of a constitutional power, for unsavory reasons but not illegal, and cannot be made illegal by definition.

        2. But if he fires him to slow down a criminal investigation POTUS fears will inculpate POTUS or POTUS’s friends, that’s obstruction of justice.

          And if he fires the FBI director to put an end to an investigation that he knows is unfounded, and that later is shown to be unfounded?

          1. LOL. You might as well ask if it be OK if he fired the FBI director for stealing White House silverware or pimping children out of a pizzeria basement.

            The DOJ inspector general and the GOP-led Senate Intel Committee both found the FBI investigation justified and properly predicated. Get a grip.

    2. Made up process crimes. Should have charged him with mail fraud.

    3. It’s not obstruction of justice when you fire an insubordinate subordinate. Trump’s mistake was not firing more people sooner.

      1. You’re on Nixon’s side then.

      2. Yeah, that was Trump’s mistake.

        Not enough turnover.

        Sometimes I wonder whether we can even take credit for defeating these conservatives in the culture war. It isn’t much of a contest.

        Carry on, clingers.

    4. “Unlike Trump’s firing of Comey, this was not an obstruction of justice.”

      But like Johnson’s firing of Stanton, it *is* grounds for impeachment.

      We will have to wait until after the 2022 landslide, but Biden will not only be impeached for this but become the first POTUS to actually be removed from office.

      1. Get back on your meds.

      2. Oh yeah. You’re gonna get 67 senators to vote for that.

        You have a rich fantasy life.

  3. Would the head of the OLC write an opinion confirming the authority of the President to fire her?

  4. “Biden was the executioner?” Of a politically-connected fat cat? Wow.

    1. Everyone Biden nominated is a politically connected fat cat as well, and a lot of them worked for the same consultancy groups tightly connected into the federal government anyway. Swamp creatures in their natural habitat.

    2. Seems more petulant and cranky than executioner, but, if this is the way it will be, so be it. I suppose we can simply prepare for a complete purge whenever the occupant of the Oval Office changes. It would be nice if this also meant that most of the dead wood in agencies, administrations, bureaus was also removed. Or, while I’m dreaming, Congress has term limits and a salary reduction to no more than 50% more than the National mean.

  5. Not a fan of these “removal for cause only” laws. They have no purpose other than to prevent the other party from imposing its will in its constitutional job as enforcer of the laws.

    “Ha ha, Republicans can’t fire them! We got you!” Well lookee here, it comes home to roost.

    And a lot of these agencies issue regulations you have to pay fines over. If one wishes to maintain the fiction this lawmaking power that punishes citizens is not improperly cast off from Congress then it must fall under enforcement of the law, and ergo the President has control of it for policy.

    1. Instead of passing “removal for cause only” laws, perhaps what Congress should do is move the entire agency in question out of the executive branch and into the legislative.

      1. At which point the agency in question could no longer do any “executing”, because the Constitution delegates that to the Executive branch.

  6. “But what about poor Justice Kagan? She will have to follow Collins because of stare decisis. ”

    Because Roe v. Wade, righty-right?

  7. It’s a unitary Executive even if I happen to not like the Executive, what he does, or why he does it. So, yes, Biden was entitled to fire the SSA commissioner.

    1. He’s also entitled to fire the FBI head if he doesn’t agree to “rub out” certain troublesome Republicans.

      1. He’s entitled to fire the FBI head regardless of reason. If you can prove he did it for THAT reason, he can be impeached over it.

        You don’t have proof Comey was fired as an act of obstruction of justice. You start from that position, and reason backwards.

        The bottom line here, is that the President, constitutionally speaking, is perfectly entitled to set the DOJ’s priorities. He’s perfectly entitled to tell the head of the FBI, “Stop wasting your time on that case, and start doing something useful, or I’m firing you.”

        And that’s as true of Joe Biden as it was of Donald Trump. If Biden fires the head of a major agency, I may say that’s a bad move, I may criticize his pick for a replacement, but one thing I will NOT do is claim he wasn’t legally entitled to do it.

  8. Forgive me, Prof. Blackman, for raising an earlier blog in a comment here. After the Supreme Court decided Brnovich v. DNC last week, I expected to see many from the Conspiracy commenting on Justice Alito’s seemingly improbable take on textualism. You were the only one to comment on it, and you did so only in an indirect way, selecting Kagan’s Greatest Hits and indicating you felt Kagan bested Alito in the exchange. Since then, not a whisper from the Conspiracy.

    May I take from this that your colleagues agree with you?

  9. Does the “rule of law” even matter anymore? We are basically a glorified banana republic these days. DC jails are full of political prisoners while those who are favored by the establishment loot and burn our cities without consequence. Dems did a whole 4 years of hand wringing about the “rule of law” but turn a blind eye when it is expedient for their agenda.

    This probably won’t end well, but part of me thinks that is the plan….

  10. The Supreme Court having expressly declined to comment on the issue, the Commissioner of SSA has not changed unless and until a court strikes down the statute. Any act done by the purported new Commissioner is void.

    And if I were a District Court, even if I found the statute unconstitutional under Collins, I would nonetheless stay the decision until the tenured Commissioner completed his appeals. I would certainly do this as a circuit judge. There has to be a cost to Presidential vigilanteism. Courts cannot endorse a President simply taking the law into his own hands.

    1. “The Supreme Court having expressly declined to comment on the issue”

      Like hell they did. As the OP above points out, you have right on point Court precedents. Having addressed the constitutionality of this kind of scheme, they don’t then have to repeat the case for every single agency, over and over.

      They’ve addressed the “issue” clearly enough. Why should they have to repeat themselves?

      1. Because they mentioned that office specifically, and said their ruling didn’t cover it. That’s what they ruled.

  11. “On July 8–the day before Saul was fired–the Office of Legal Counsel published an opinion on this exact issue. What perfect timing! ”

    Yes, how ridiculous is that? Before a President took some action, he asked the OLC whether that action would be legal and/or constitutional. For shame!

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