Jurisprudence

How Conservative Lawyers Accidentally Helped Biden De-Trumpify the Government

The Supreme Court left Biden with two options: unilateral disarmament or hardball politics. He chose the latter.

Joe Biden smiling.
President Joe Biden at the National Constitution Center in Philadelphia on Tuesday. Saul Loeb/Getty Images

On Friday, President Joe Biden fired Andrew Saul, the Donald Trump nominee leading the Social Security Administration. Saul’s removal marked the latest chapter in Biden’s ongoing efforts to expel Trump holdovers from leadership positions in the executive branch. Beginning on Jan. 20, the new president has sacked Trump appointees from agencies both powerful and obscure, preventing the dead hand of the previous administration from governing the current one.

The conservative legal movement has long advocated for the president’s power to fire executive officials at will. This theory of the “unitary executive” has gathered widespread support on the right and scorn from the left. But it is Biden who has first reaped its rewards, exploiting the theory’s ascendence at the Supreme Court to de-Trumpify the government. The radical nature of Trump’s nominees, combined with the Supreme Court’s conservative tilt, have allowed Biden to become the first unitary executive. An idea promoted by conservatives has created a windfall for Democrats.

Advertisement
Advertisement
Advertisement
Advertisement

If Trump had put regular, competent Republicans in charge of the government, Biden might have put up with them until their terms ran out. But Trump put arsonists in charge of the firehouse, nominating extreme partisans eager to sabotage the agency they led. For instance, Peter Robb, Trump’s general counsel of the National Labor Relations Board, relentlessly sought to undermine unions. Michael Pack, whom Trump placed at the head of the U.S. Agency for Global Media, tried to turn Voice of America and its sister networks into pro-Trump propaganda machines. And Kathleen Kraninger, Trump’s director of the Consumer Financial Protection Bureau, authorized predatory lending and abusive debt collection practices.

By tradition, a new president allows these officials to serve out their terms. But Biden did not wait for them to burn down the firehouse. He fired all three on Jan. 20.

Advertisement

Other Trump holdovers ousted by Biden follow a similar pattern. Sharon Gustafson, Trump’s general counsel of the Equal Employment Opportunity Commission, was supposed to fight workplace discrimination; instead, she tried to dismantle class actions, defend discriminatory employers, and ignore anti-LGBTQ bias. Mark Calabria, Trump’s director of the Federal Housing Finance Agency, tried to deregulate the mortgage giants he was tasked with regulating. Andrew Saul, Trump’s commissioner of the Social Security Administration, subverted his agency’s mission by slashing disability benefits and delaying stimulus checks.

Biden has fired them all.

Trump stacked more obscure federal boards with administrative arsonists, as well. He filled the Federal Service Impasses Panel, a powerful labor relations board, with anti-union activists who gummed up collective bargaining; Biden removed them, all at once, two weeks into his term. He packed the Administrative Conference of the United States, which influences regulations across the government, with anti-regulatory zealots; Biden dismissed the worst of the bunch in February.

Advertisement
Advertisement

Many fired holdovers were appointed in the final weeks of Trump’s term, as the outgoing president fought to overturn the 2020 election. Some were reappointed to new terms just before Trump left office in an effort to extend their service under Biden. Others served on arcane agencies with limited power, but nonetheless jeopardized the new president’s agenda. For example, Biden removed Trump holdovers from the National Capital Planning Commission, the Advisory Council on Historic Preservation, and the Commission of Fine Arts. These boards exercise control over the District of Columbia’s city planning; they’re usually staffed with technocrats, but under Trump’s influence, they threatened to derail efforts to make D.C. a greener, more equitable place.

Advertisement

Ironically, it was Trump’s own Supreme Court nominees who empowered Biden to purge so many Republican holdovers. For the better part of a century, the Supreme Court upheld limitations on the president’s ability to fire executive officials. A solid five-justice majority in favor of the unitary executive did not emerge until Justice Brett Kavanaugh replaced Justice Anthony Kennedy in 2018. (The confirmation of Justice Amy Coney Barrett makes that a six-justice supermajority.) Moreover, only in 2020’s Seila Law v. CFPB did the Supreme Court expand the president’s power to fire executive officials who are protected from removal by law. In Seila Law, the court struck down a statute that protected the CFPB director from termination. A year later, in Collins v. Yellen, the court extended its reasoning to the Federal Housing Finance Agency, or FHFA, which oversees Fannie Mae and Freddie Mack.

Advertisement
Advertisement

Seila Law allowed Biden to fire Trump’s CFPB holdover on Day One. Collins let him fire Trump’s FHFA holdover in June. And the Department of Justice’s Office of Legal Counsel promptly concluded that these Supreme Court’s decisions also allow the president to fire the Social Security commissioner. Hours later, Biden did just that, axing Andrew Saul. (He also fired deputy commissioner David Black, another Trump nominee.) If Biden hadn’t taken action, Saul would’ve served through Jan. 19, 2025.

Advertisement

The logic of Seila Law plainly emboldened Biden to fire other executive officials whose legal status is ambiguous. For instance, he fired Robb, Trump’s NLRB general counsel, before Robb’s term expired. There are (weak) arguments that Congress intended to protect the general counsel from such a fate. And a previous Supreme Court might have shielded Robb from removal. But it’s clear that this Supreme Court has no interest in stopping a president from sacking his own subordinates. Biden can clean house without fear of judicial pushback.

Advertisement

Finally, it’s worth noting the conservative attorneys who spearheaded Seila Law and Yellen did not intend this result. Their goal was to abolish the CFPB by judicial fiat and dislodge $124 billion from the U.S. Treasury. But SCOTUS declined these radical remedies, instead merely severing the directors’ job protections. This minimalist solution worked out beautifully for Biden.

Advertisement

In the long run, there are downsides to the ascent of the unitary executive. The next Republican president will surely follow this example and remove Biden’s own appointees from office. But does anyone seriously think that the next Republican president would have let Biden’s people remain in office either way? Does anyone believe that the party of insurrection, more radicalized than ever before, would fail to take advantage of the new legal landscape? It seems doubtful that a President Ron DeSantis or Josh Hawley or Tucker Carlson would permit Biden’s appointees to retain control over executive agencies. For better or worse, that era is over.

The Supreme Court’s embrace of the unitary executive left Biden with two options: unilateral disarmament or hardball politics. By choosing the latter, he accelerated the de-Trumpification of the executive branch. Progressives might not like SCOTUS’s embrace of a conservative legal theory, but the unintended consequences give them a lot to love.

Advertisement