Biden’s Unitary Executive Versus Agency Independence

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.

Finally, a whisper campaign began against eminently qualified West Point graduate and member of the academy’s Board of Visitors, Douglas Macgregor, on Thursday of last week. [Editor’s note: Douglas Macgregor is a senior fellow with The American Conservative.] This is a transparent attempt by the Biden Administration to seed the ground before firing Macgregor from that board. His offense? Previously reported, anonymous allegations, relating to private political speech unrelated to his service on the board.

These assaults on the civil service and on independent agencies are notable because they represent actual cases of overreach that, again, never occurred under President Trump. In spite of his rhetoric, his exercise of political control (and his alleged overreach) was not as aggressive or thoroughgoing as we have seen right out of the gate with President Biden.

If this were mere exercise of political control by a president with a robust view of executive authority, it would be possibly mistaken, but perhaps not troubling. Civil servants and members of independent agencies could then expect that under the next Republican administration “drain the swamp” might not merely be a slogan, but an actual program.

However, President Biden has continued to pay lip service to agency expertise and independence, while engaging in ideological indoctrination and inquiring into the personal beliefs of career civil servants and our military. We are already seeing proposals by the administration to surveil the social media of service members, merely the opening salvo by a task force led by Pentagon senior advisor Bishop Garrison. This has never before occurred. Add to this that staff in the White House Office of Presidential Personnel have explicitly noted they seek certain demographics in hiring (something no other OPP has done, including when I worked there under President Trump), and every civil servant in government should be concerned.

Our nation’s federal workforce, including our military, must have continuity, and reflect the population of our nation. They must have the tools to do their job. This includes having faith that the occupant of the White House will follow the law, both the written laws and the traditional norms that allow our federal workforce to function. Recent actions by President Biden have threatened this faith.

Andrew Kloster is a lawyer in private practice in Washington, D.C. Previously he served concurrently as associate director for Presidential Personnel in the White House and deputy general counsel at the Office of Personnel Management under President Trump.

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