President Biden has precipitated a battle over a minor government post that could actually have semi-major ramifications for reining in presidential power. As is his wont, Biden is probably wrong. A court should issue an injunction against his action, at least long enough to consider the case on its merits.
On Tuesday, Biden’s team sent a message to Roger Severino, a high-profile former official for the Department of Health and Human Services, to demand Severino’s resignation from a post to which former President Donald Trump had appointed Severino just two weeks earlier. A Biden mid-level aide named Gautam Raghavan told Severino that if he did not resign by the end of the day on Wednesday, his appointment would be “terminated.” On Wednesday, Raghavan followed up with a curt, one-sentence email asserting that the appointment indeed had been ended. Raghavan provided no justification for the authority to fire Severino.
Severino refused to resign, and he has filed suit to block his dismissal. At initial perusal, his suit makes good constitutional sense.
Severino had raised liberal hackles while taking conservative positions on abortion, religious liberty, and other issues while he was at HHS. On Jan. 16, four days before Trump left office, Trump appointed Severino to an advisory body called the Council of the Administrative Conference of the United States. The Administrative Conference, a body of up to 101 members plus a small staff, itself wields neither executive nor legislative power. It is purely advisory. Its job is to study administrative procedures and to recommend improvements in federal programs.
The Council to the Administrative Conference is even more removed from power. This 11-person body determines the time and place and agenda for Conference sessions and makes recommendations to the Conference on subjects “germane to the purpose of the Conference.” In sum, it is a body that provides oversight and advice to a body that provides oversight and advice.
The law creating these advisory bodies specifies that appointment to the Council lasts three years. It provides no mechanism for a president to fire a Council member. That’s why Severino filed suit: He says his appointment cannot be “terminated.” He cited several prominent examples of case law dating back to Humphrey’s Executor v. United States in 1935 to the effect that a president cannot remove members of “multimember expert agencies that do not wield substantial executive power.”
The key is whether the position does entail executive power of the sort that makes the appointee an instrument of the president’s executive control. Positions such as FBI Director or most agency inspectors general are quasi-independent jobs, for example, but the constitutional system’s theoretically “unitary executive” does make them, technically, dismissible. Such is decidedly not the case, though, with some independent bodies created by Congress, such as the Equal Opportunity Employment Commission and the U.S. Commission on Civil Rights. Or at least not under the standards set in Humphrey’s Executor.
Even the EEOC has enforcement powers, however, and the USCCR has subpoena powers. If those commissioners are not removable by the president despite enjoying at least some prerogatives ordinarily associated with executive authority, then surely a purely advisory body such as the Council of the Administrative Conference of the United States should be exempt from firing.
Hence, Severino’s suit.
On the phone Thursday afternoon, Severino called the (disputed) dismissal “insulting,” “petty,” and “gratuitous.” He has a good point. It’s not as if his advisory position would give him authority over any substantive policy decisions. Instead, he would join a large group advising on “good rule-making procedures, which is a non-controversial issue.”
“The big issue,” Severino said, “is that regulations that now govern so much of American life are so impenetrable and difficult to update to match current circumstances.” And: “My goal for [the Council] is to make regulations more transparent, relevant, and effective for the American people.”
“After four years of drafting and interpreting regulations” at HHS, he said, “I’m brimming with good ideas” on how to streamline regulations so citizens can understand and comply with them in less burdensome ways. As a Harvard Law graduate and an experienced regulator, Severino said he was looking forward to giving helpful advice on such matters.
“Who could be against that?” he asked. “Why would Biden want to stop me from doing that?”
On substance, Severino is right that Biden’s attempt to dismiss him is politically petty and also counterproductive to good governance. Biden’s vaunted desire for “unity” should mean he welcomes input from conservatives on matters where those conservatives have technical expertise but can’t hinder Biden’s policy choices.
On the law, initial perusal of Severino’s case certainly seems to support his contention that the president has no independent power to dismiss him before the end of his three-year term. At the very least, federal district court judge Colleen Kollar-Kotelly (an appointee of former President Bill Clinton) should issue an injunction maintaining Severino’s position on the Council until the case can be fully briefed and tried. Based on the Humphrey’s line of rulings, and especially based on a unanimous 1958 decision in a remarkably similar case called Wiener v. United States, Severino has a more than reasonable chance of winning on the merits, so a temporary injunction in his favor would be entirely justified.
Against the constitutional design, far too much power has flowed from Congress to the executive/administrative state. Congress has every right and authority to create advisory bodies to examine how to keep the administrative state within bounds — for the benefit of the constituents, the ordinary citizens, who Congress serves. On behalf of that principle, Severino’s case is more important than just his individual interest in serving on the Council. The public should hope his suit succeeds.
