Biden violates longstanding political norms through partisan firings

Biden violates longstanding political norms through partisan firings

The Biden administration has fired people at independent agencies for partisan reasons and perhaps racially discriminatory reasons as well. That violates federal law.

The Biden administration has used firings of government employees to launch a “partisan power grab,” noted the Washington Examiner’s Ryan Girdusky:

The media loved to complain that former President Donald Trump was always violating long-standing political norms…[But] Biden broke a presidential norm that Trump never dared violate. Biden did so by firing members of independent agencies appointed by the previous administration. In the days preceding the firing, Biden’s deputy director of the Presidential Personnel Office, Gautam Raghavan, asked for the resignation of several Trump appointees. These included Roger Severino, Jennifer Dickey, Andrew Kloster, and Dan Epstein. In an apparent violation of federal law, Raghavan threatened to fire them if they didn’t resign. This, even though the appointees are serving fixed terms.

Firing appointees serving fixed terms that have not expired would be unprecedented. But when several refused to resign, they were indeed fired. Severino, who served on the Administrative Conference of the United States council, is now suing the Biden administration over his termination. “The Council does not wield any executive power…so President Biden has no constitutional power to terminate Mr. Severino or any other member of the Council,” Severino’s lawsuit said. “President Biden’s attempt to remove me contrary to law exposes his lofty promises of healing and uniting all Americans as nothing more than cynical manipulation,” Severino said in a statement. Severino has a good point.

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Andrew Kloster notes that these terminations contrast with Trump’s failure to fire holdovers from prior administrations, noting:

… [For all] 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. … 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…President Biden. … targeted board members on the National Capital Planning Commission (NCPC), something which, again, has never happened before. … 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 … 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. …

We are already seeing proposals by the administration to surveil the social media of service members….This has never before occurred.

Trump kept Obama appointees around on the National Capital Planning Commission and the Commission on Fine Arts. But Biden swiftly fired Trump’s appointees to these commissions, even though those appointees had fixed terms that had not expired, such as four-year terms or six-year terms mandated by law. When members of commissions have fixed terms, they can only be fired for cause, according the Supreme Court’s decision in Wiener v. United States (1958). Removing them without cause violates federal law.

As Erik Bootsma notes, “The National Capital Planning Commission appointees serve a 6 year term appointed by the President. The Commission of Fine Arts serve a 4 year term. These are not political appointees (i.e. part of the administration free to be fired at will).” That “means that until this fall, there were a number of Obama appointees serving in these roles without any problem. Trump for all his faults never once suggested removing these apolitical appointees (people hired for their expertise).”

These firings were not for cause, so they were illegal. The Biden administration did not even allege any wrongdoing by any of the appointees it fired.

Race may have played a role in the firing of the members of the Commission on Fine Arts, who were white. Washington, DC’s Democratic-controlled city government demanded the removal of these appointees, citing the fact that they were “white” and “male,” according to the Washington Post.

But removing people from a government board based on their race or gender violates court rulings such as Back v. Carter (1996), which say that racial or gender quotas for government boards are forbidden. The courts have said that the Constitution’s ban on racial discrimination binds the federal government and the District of Columbia, restricting their ability to give racial preferences to minorities. (See Vitolo v. Guzman (2021); O’Donnell Construction Co. v. District of Columbia (1992)).

If the Biden administration acceded to the District of Columbia’s discriminatory request to remove these “white, male” appointees, it is liable for that racially discriminatory motivation. A government official cannot take an action based on someone else’s prejudices, even if the official doesn’t share those prejudices. For example, a town was liable for racial discrimination when it blocked a housing project that offended racist residents of the town, even though the town government itself had no racist motive for blocking the project. (See Smith v. Town of Clarkton (1982)).

So even if the Biden administration does not itself have racist motives, it can’t fire commission members just because someone in the D.C. city government doesn’t like his race.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at [email protected]


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