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