The Volokh Conspiracy
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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."
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.
