\n\n“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 \u201cgood cause.\u201d For example, members of the Federal Reserve Board, including newly appointed member Waller, enjoy this statutory protection from removal\u2014with the right to seek judicial review of the legal sufficiency of the president\u2019s 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\u2019s imprint on the federal government could remain long after he and Melania have decamped from the White House.”
…
“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\u2019s policies and programs whether or not they hold a fixed term of office or enjoy statutory good-cause protection against removal.<\/p>\n\n\n\n
The Federalist Society, a conservative legal organization that has played an integral role in Trump\u2019s 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\u2014including, for example, a sitting member of the Federal Reserve Board of Governors.<\/p>\n\n\n\n
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 \u201cgood cause\u201d removal protections very narrowly so that the president has the ability to fire subordinates within the executive branch in whom he lacks confidence.<\/p>\n\n\n\n
Under this theory, it\u2019s unthinkable that an entity charged with enforcing federal laws, such as the FCC, could be rendered largely unaccountable to the president.”<\/p>\n\n\n\n
…<\/p>\n\n\n\n
“Many of these nominees hold odd, even bizarre, policy positions that are clearly opposed to the Biden administration\u2019s 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\u2019s ability to use monetary policy to help limit the effect of shocks to the national and global financial systems. Shelton\u2019s 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.<\/p>\n\n\n\n
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\u2019s refusal to timely confirm the president\u2019s nominees, would leave Biden without the ability to perform his constitutional duty to \u201ctake Care that the Laws be faithfully executed.\u201d<\/p>\n\n\n\n
Indeed, it may well be that the Biden administration\u2019s 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\u2019s 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.”<\/p>\n\n\n\n
…<\/p>\n\n\n\n
“Trying to booby-trap administrative agencies for an incoming administration is inconsistent with a meaningful commitment to the peaceful transfer of power.<\/p>\n\n\n\n
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\u2019s 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.<\/p>\n\n\n\n
On the other hand, though, it was the Senate\u2014not Biden\u2014that started this fight.<\/p>\n\n\n\n
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\u2019s lame-duck picks. The Federal Vacancies Reform Act does not, for instance, permit a president to name \u201cacting\u201d 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.<\/p>\n\n\n\n
Further expanding the president\u2019s unilateral authority is unfortunate collateral damage\u2014but 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.<\/p>\n\n\n\n
McConnell\u2019s effort to do to federal agencies what he has systematically done to the federal courts can work only if Biden lets it work.”<\/p>\n\n\n\n