Jurisprudence

Biden’s Justice Department Is Walking Into a Trap Set by Trump Appointees

A seemingly frivolous lawsuit could take down a pillar of the administrative state.

Joe Biden arches his eyebrows.
President Joe Biden at the White House on May 21. Stefani Reynolds/Pool/Getty Images

From the day he assumed the presidency, Joe Biden has aggressively removed Donald Trump’s appointees from the executive branch to prevent them from sabotaging his administration. Biden’s termination of high-profile Trump holdovers, like the union-busting Peter Robb, has attracted the most attention. But the president has also fired holdovers who tried to “burrow in” to obscure agencies, many of whom were installed in the final weeks of Trump’s term. One such holdover, Roger Severino, promptly sued Biden after the president removed him and three fellow Trump appointees from the Administrative Conference of the United States.

Advertisement

On the surface, Severino’s lawsuit is absurd. But he and his allies may know that. It appears that they have a grander plan: to destroy the very foundation of agency independence, giving the president power to fire any member of any agency—even those that Congress tried to shield from his control—permitting a future president to stack the entire executive branch with his own lackeys. That outcome would constitute a major blow to the modern administrative state. And bizarrely, Biden’s Department of Justice may be walking straight into the trap that Severino set for it.

Advertisement
Advertisement
Advertisement

Most Americans have not heard of ACUS, but the agency has considerable influence over federal regulations. Its council, a kind of board of directors, is made up of one chair and 10 other members appointed by the president. Only the chair must receive Senate confirmation; the other members do not. ACUS makes recommendations to improve the regulatory process across the federal government. Under Trump’s appointees, it laundered conservative anti-regulatory ideas approved by industry groups and Federalist Society leaders through the agency, giving them a false nonpartisan sheen.

Advertisement

It is no surprise, then, that Biden fired four of Trump’s ACUS holdovers. The termination of Severino, in particular, was predictable: A longtime anti-LGBTQ activist, Severino also worked in Trump’s Department of Health of Human Services trying (and failing) to legalize discrimination against LGBTQ patients. Trump first appointed Severino to ACUS in August 2020, then reappointed him on Jan. 16, 2021—a bid to burrow in Severino by restarting his three-year term just before Biden took office.

Biden foiled this plan by firing Severino and three of his Trump-appointed colleagues in early February. Severino responded with a lawsuit alleging that his termination was illegal. That accusation is curious coming from a Federalist Society figure like Severino. The conservative legal movement has long supported the president’s constitutional authority to fire members of federal agencies. Under their theory of the “unitary executive,” the president may remove agency leaders at any time, for any reason. This theory casts doubt on the legitimacy of “independent agencies,” like the Federal Trade Commission, whose members can only be removed for cause, not at the president’s discretion.

Advertisement
Advertisement

In 1935’s Humphrey’s Executor, the Supreme Court unanimously affirmed the constitutionality of independent agencies. But that precedent has been on conservative lawyers’ hit list for decades. If the Supreme Court overturns Humphrey’s and adopts the unitary executive theory, then many powerful agencies that have traditionally operated independently from the president—including the Federal Reserve and the Securities and Exchange Commission—would become mere outposts of the White House. The president could fire their leaders and replace them with cronies who will obey his orders. (Progressives tend to support Humphrey’s because it promotes less political decision-making and protects experts from partisan pressure.)

Advertisement

Severino’s lawsuit, which contradicts a foundational pillar of conservative legal thought, thus raises a red flag. It seems unlikely that Severino simply wants his ACUS job back, which is, after all, a part-time, unpaid position. In response to Slate’s request for comment, Severino—who now serves as a senior fellow at the Ethics and Public Policy Center directing its HHS Accountability Project—declined to say whether he intended to take down Humphrey’s. Instead, he gave four other reasons behind the suit. “I want to continue making valuable contributions to ACUS, the rules governing appointments should be consistent regardless of who is in power, current case law is on my side, and I refuse to be bullied by the President,” Severino told Slate.

Advertisement
Advertisement

A series of clues, however, indicate that Severino might have another motive: not getting his job back, but obliterating agency independence and enshrining the unitary executive theory into law. Severino is represented by Jonathan Mitchell, a conservative attorney famous for his union-busting litigation. Trump nominated Mitchell to chair ACUS, but the Senate never confirmed him. Given his deep ties to the legal campaign against independent agencies, Mitchell is the perfect candidate for an assault on Humphrey’s using ACUS as a vehicle.

Moreover, statements by Andrew Kloster, a Trump appointee to ACUS whom Biden fired along with Severino, point to a scheme designed to take down Humphrey’s. Public record requests reveal that when the White House requested Kloster’s resignation, he refused in a lengthy email warning of “legal headaches” to come. When the White House fired him, Kloster urged ACUS to deny the legality of the termination, demanding that his name remain on the official website. He immediately compared himself to a member of the FTC, the agency at issue in Humphrey’s. That same day, Kloster tweeted that “ramming Humphrey’s Executor” with “the unitary executive” was “the plan.” Similarly, Ed Whelan—who now works with Severino at the Ethics and Public Policy Center—wrote that his colleague’s lawsuit may lead to the reversal of Humphrey’s.

Advertisement
Advertisement
Advertisement

If “ramming” Humphrey’s is, indeed, the plan, then it is a terrible one. The fundamental problem for Severino is that ACUS is not an independent agency. Congress did not shield its members with for-cause removal protections. No law limits the president’s authority to remove them. Its members (aside from the chair) are not even confirmed by the Senate—unlike the leaders at true independent agencies, who are Senate-confirmed. And ACUS does not exercise the kind of regulatory or adjudication authority that often merits independence in the eyes of Congress. To the contrary, it exists to advise the president on executive branch affairs; it would make no sense to prevent him from removing his own advisers.

In its response to Severino’s lawsuit, filed on May 4, the Department of Justice eventually makes all these points to defend Biden’s actions. But it does not foreground them. Instead, the DOJ leads with a sweeping argument that strikes at the heart of agency independence. It argues that, due to the constitutional separation of powers, the federal judiciary lacks authority to issue “injunctive or declaratory relief” against the president. Put differently, the argument is that a federal court has no power to make the president reinstate a fired agency member. Under this theory, if a president illegally fired an FTC commissioner, for instance, no court could order him to give the commissioner their job back. The court could order back pay but couldn’t restore their employment.

Advertisement
Advertisement
Advertisement

This theory, if true, would end agency independence. A president could clear house at every independent agency, purging members without good cause, and no one could stop him. The sacked commissioners could sue for damages but not reinstatement. If the Supreme Court accepted this idea, it wouldn’t even have to overturn Humphrey’s. Independent agencies could remain on the books, but in reality, nothing would prevent a president from firing members he did not like.

Advertisement

Ronald J. Krotoszynski, an administrative law professor at the University of Alabama School of Law, told me that the DOJ’s theory “seems bogus to me.” Krotoszynski pointed out that if Severino’s removal violated the law, “his removal was without legal effect, void, and a court order should be sufficient to reinstate him to the ACUS governing council for the balance of his term of office.” He also noted that, in the landmark 1803 Supreme Court decision Marbury v. Madison, Chief Justice John Marshall held that a federal judge could order Secretary of State James Madison to deliver a judge’s commission. Marshall wrote that a writ of mandamus—a court order compelling an official to perform a legal duty—would be appropriate against Madison.

Advertisement
Advertisement

In light of Marbury, Krotoszynski speculated that a court could issue a writ of mandamus “against the president directly.” This order would compel the president to reinstate a fired agency member. But, Krotoszynski said, “that seems rather awkward and completely unnecessary.” Instead, a court could order the staff members at the Office of Presidential Personnel—who send out the actual pink slip—to acknowledge the member’s right to continue service. (The DOJ argues that a court order against the president’s staff is “tantamount to issuing relief directly against the President.”)

Krotoszynski’s argument is persuasive but contestable. In a 1997 law review article, Tracey A. Hardin examined this issue and arrived at the same conclusion as Biden’s Justice Department: The Constitution does not allow a federal court to order the reinstatement of an independent agency commissioner who was fired illegally. (Ironically, Tracey is now the assistant general counsel at SEC, an independent agency.) And the Supreme Court’s current conservative supermajority is extremely hostile to agency independence. It is all too easy to envision the conservative justices agreeing with the Justice Department, carving a huge loophole in Humphrey’s without risking the backlash of overturning it outright.

Which raises the question: Why is Biden’s Justice Department making this argument at all? It has a slam-dunk case against Severino on the merits; why try to duck the litigation with a far-reaching argument that could imperil independent agencies, which progressives and Democrats tend to support? The Biden administration may be walking straight into a trap that Severino and his allies set for it. It may only be spared by the feeble nature of the trap itself. New York University School of Law professor Sally Katzen, a senior fellow with ACUS who previously served as acting chair of the agency, told me she doubted the Supreme Court would seize upon this case to kill agency independence.

“It’s a plausible scary scenario,” Katzen says, “but I don’t see them going that far. ACUS is not a traditional independent regulatory commission. It has no authority to issue binding regulations nor does it have any enforcement powers.” If Severino and his allies wanted the Supreme Court to overturn Humphrey’s, “they should’ve picked a bigger fish. ACUS is a tiny little minnow—but a lovable minnow—in the world of administrative agencies.”

Severino, in other words, appears destined to lose this lawsuit one way or another. Through its own unforced error, however, the Biden administration has made it more likely that he will take down independent agencies with him.

Advertisement