The American Conservative:
Biden’s Unitary Executive Versus Agency Independence – The president is going further than Trump in exercising control over independent boards and career civil servants.
I also learned last week that Biden is attempting the first-ever firing of a member of the Presidio Trust. This little-known federal agency has a small mandate: to administer the Presidio of San Francisco, a relatively small park in a single city on the West coast. The member, noted right-wing radio host Michael Savage, is a lifetime San Francisco resident and a strong supporter of public lands. His firing is also unprecedented and legally dubious, and Savage has noted he might sue.
For all the talk and the media hysterics, President Donald Trump never took full aim at the bureaucracy. He never fired Anthony Fauci. He never fired Robert Mueller. Over four years and in spite of various leaks and partisan letters, President Trump only fired a small handful of the dozens of inspectors general who by law are explicitly removable by the president. As I often note, Trump was perhaps the most norm-following president of my lifetime. I was proud to serve him in various capacities, including as a lawyer in the White House and at the Office of Personnel Management, the federal agency responsible for ensuring the integrity of our nation’s civil service.
By contrast, President Joe Biden has taken a number of norm-breaking actions that President Trump never even considered, nor should he have. These actions compromise the diversity and First Amendment rights of our federal workforce.
First, President Biden has taken aim at the rights of career civil servants. This includes such actions as repeatedly flouting the Vacancies Reform Act, for example by having a law partner right out of the private sector serve as acting deputy attorney general, fulfilling the functions and duties of his first attorney general. It also includes actual attacks on civil service protections, such as in January 2021 reassigning James McHenry, the career head of the Department of Justice Executive Office of Immigration Review, in flat violation of the 120-day reassignment moratorium.
These unprecedented assaults on federal civil service independence also include attacks on independent agencies.
It was my honor to be appointed by President Trump to serve on the council for the Administrative Conference of the United States (ACUS). That independent agency has had a good reputation for decades, due to the caliber of appointees and its reputation for bipartisanship. In fact, while serving under President Biden on that council, I came out in support of his nominee to serve as the head of the Office of Management and Budget, Neera Tanden.
I was surprised, then, when President Biden began a frontal assault on norms and institutions that President Trump never touched, by taking actions to remove me and other council members on the Administrative Conference, thus deeply politicizing an agency that has never had a firing. I have kept quiet for months, precisely because I had hoped this unwise decision was not a trend, although one of my other council members has filed a federal lawsuit contesting the unlawful action.
I later learned, however, that President Biden had targeted board members on the National Capital Planning Commission (NCPC), something which, again, has never happened before. These purported firings are very serious, because, like ACUS, the board is independent. In fact, the NCPC board members are balanced between the executive branch and Congress, factors which, in light of recent Supreme Court decisions, strongly suggest that Biden was again acting unlawfully.
Just last week, I learned that the president has again targeted independent agencies. This time, he is seeking to fire Justin Shubow and other members of the Commission of Fine Arts. Shubow, like the other members of the commission, is eminently qualified, having been a frequent commenter on arts policy and the head of the National Civic Arts Society for years. And like these other independent agencies, for roughly a hundred years of bipartisan operation, there have never been attempted firings of commission board members, not even under President Trump.
I also learned last week that Biden is attempting the first-ever firing of a member of the Presidio Trust. This little-known federal agency has a small mandate: to administer the Presidio of San Francisco, a relatively small park in a single city on the West coast. The member, noted right-wing radio host Michael Savage, is a lifetime San Francisco resident and a strong supporter of public lands. His firing is also unprecedented and legally dubious, and Savage has noted he might sue.
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