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Despite President Donald Trump’s landslide defeat at the ballot box in November, Senate Majority Leader Mitch McConnell and his GOP caucus have embarked on a course to stack the federal administrative state with eleventh-hour appointees. The GOP-controlled Senate appears to be filling every open federal post in sight. These confirmations, such as that of Nathan Simington on Tuesday to an open seat on the Federal Communications Commission, and that of Christopher Waller earlier this month to a seat on the Federal Reserve Board, could make it more difficult for Biden to make good on the policies and programs on which he campaigned and won election.
Some of these “midnight” appointments are unlikely to seriously affect President-elect Joe Biden’s ability to implement his regulatory vision. For example, Kellyanne Conway’s appointment to the Air Force Academy’s Board of Visitors and Elaine Chao’s appointment to the Kennedy Center’s Board of Trustees are largely honorific posts and do not involve major policy making authority.
But lame-duck appointees like Simington and Waller present a serious "dead-hand" problem: The outgoing administration will continue to hold power within administrative agencies long after noon on January 20, 2021. Even worse: In many cases, these office-holders are, at least in theory, not subject to at-will removal by the president because federal law provides that they can be removed only for “good cause.” For example, members of the Federal Reserve Board, including newly appointed member Waller, enjoy this statutory protection from removal—with the right to seek judicial review of the legal sufficiency of the president’s reasons if he attempts to remove them from office. By confirming a slew of last-minute Trump appointments to key posts within the administrative bureaucracy, Trump’s imprint on the federal government could remain long after he and Melania have decamped from the White House.
But will President Biden be stuck with a small army of midnight Trump appointees who will reflexively oppose any and all of his administration’s policy initiatives? What, if anything, could the Biden administration do to rid itself of these midnight appointees?
Biden could adopt a theory advanced by conservative judges and legal academics, and long championed by The Federalist Society: The unitary executive theory. Under this theory, President Biden would be constitutionally empowered to remove executive-branch personnel who are opposed to his administration’s policies and programs whether or not they hold a fixed term of office or enjoy statutory good-cause protection against removal.
The Federalist Society, a conservative legal organization that has played an integral role in Trump’s judicial selection process, has long advocated the unitary executive theory. Under this theory, the president must be able to exercise direct forms of control over any and all officers holding policymaking posts within the federal executive branch—including, for example, a sitting member of the Federal Reserve Board of Governors.
Trump-appointed federal judges, such as Brett Kavanaugh and Neomi Rao, have written in both academic articles and judicial opinions about the central importance of the unitary executive theory to the proper enforcement of the separation of powers. Both have argued, strenuously, that the federal courts must interpret “good cause” removal protections very narrowly so that the president has the ability to fire subordinates within the executive branch in whom he lacks confidence.
Under this theory, it’s unthinkable that an entity charged with enforcing federal laws, such as the FCC, could be rendered largely unaccountable to the president.
Moreover, just last June in its Seila Law v. CFPB decision, the Supreme Court invalidated the good cause removal protection for the director of the Consumer Financial Protection Bureau on separation of powers grounds (while leaving the rest of the Dodd-Frank Act intact). Justices Clarence Thomas and Neil Gorusch wrote that they would have been prepared to go even further, however, and repudiate Humphrey’s Executor, the 1935 Supreme Court decision that held “good cause” removal restrictions to be consistent with the separation-of-powers doctrine.
Given these clear judicial smoke signals, both on and off the bench, the Biden administration would be on solid legal and constitutional ground if it sought to remove the most troubling Trump midnight appointees within the executive branch. In the case of Simington, the argument for removal is particularly easy to make because the Federal Communications Act does not expressly confer good-cause protection on members of the FCC (though as a historical matter, presidents have treated members of independent agencies as enjoying good cause removal protection, even if an agency’s enabling act does not expressly provide it). What’s more, taking this step would prevent gridlock at this critical agency regardless of whether the Senate considers Biden FCC nominees on a timely basis.
Many of these nominees hold odd, even bizarre, policy positions that are clearly opposed to the Biden administration’s policies. Judy Shelton, for example, a Trump nominee to the Federal Reserve Board, has publicly advocated a return to the gold standard. If the Federal Reserve Board were to embrace her position, it would hobble the agency’s ability to use monetary policy to help limit the effect of shocks to the national and global financial systems. Shelton’s nomination currently remains pending before the Senate; despite failing to secure a majority vote last month (with two GOP senators absent due to Covid-19), Senator McConnell has preserved his ability to call up her nomination again before President-elect Biden is inaugurated.
If Republicans retain control of the Senate after the Georgia special elections, Biden should offer McConnell a choice: Either swiftly confirm a Biden appointee to the fifth seat on the FCC, or President Biden will remove Simington from the commission. Biden should adopt exactly the same negotiating tactic with respect to other federal independent agencies where the presence of lame-duck Trump holdovers, coupled with the Senate’s refusal to timely confirm the president’s nominees, would leave Biden without the ability to perform his constitutional duty to “take Care that the Laws be faithfully executed.”
Indeed, it may well be that the Biden administration’s only practical option to counter these unprecedented midnight appointments will be to fire these appointees after he takes office. And, when the newly unemployed federal officers seek judicial review of Biden’s action, the administration should quote the Federalist Society judges back to themselves in the legal briefs. In fact, were Biden to signal that he will remove illegitimate lame-duck appointees after taking office, it might persuade McConnell to cease and desist trying to saddle the Biden administration with a federal bureaucracy committed to seeing his administration fail.
Even if technically constitutional, the Senate’s current approach—filling seats on independent agencies, boards and commissions with terms that extend well into or beyond Biden’s first term of office—breaches longstanding constitutional norms. Trying to booby-trap administrative agencies for an incoming administration is inconsistent with a meaningful commitment to the peaceful transfer of power.
To be sure, taking this step would constitute a further escalation of the confirmation wars and represent yet another step toward creating an imperial presidency. Firing a GOP member of the FCC would, like the Senate’s behavior, break an existing convention and also escalate of the battle between the Senate and the president, in periods of divided government, over control of independent regulatory agencies.
On the other hand, though, it was the Senate—not Biden—that started this fight.
Moreover, for independent regulatory bodies that feature multimember heads and partisan balance requirements for the membership, Biden simply has no effective workaround other than dismissing GOP members if the Senate will not consider his nominees with the same alacrity that they have considered Trump’s lame-duck picks. The Federal Vacancies Reform Act does not, for instance, permit a president to name “acting” voting members to independent agencies. Thus, for administrative bodies like the FCC, the Securities and Exchange Commission and the Equal Employment Opportunity Commission, which have partisan balance requirements and feature a multimember head, the only way for the president to establish control over the agency, if the Senate will not speedily consider and confirm his nominees, would be to remove opposition party members from it.
Further expanding the president’s unilateral authority is unfortunate collateral damage—but if a choice must be made between having an agency operating free and clear of meaningful presidential supervision and further accelerating the devolution of the separation of powers toward an imperial presidency, unaccountable government power in the hands of a rogue agency presents the greater of the two evils.
McConnell’s effort to do to federal agencies what he has systematically done to the federal courts can work only if Biden lets it work.