The Supreme Court and blind partisanship ended the illusion of independent agencies
For decades, we have lived under the shared view that independent agencies should be insulated from the raw partisan politics that frustrate our ability to manage government competently. That illusion was finally revealed when President Biden fired Social Security Administration Commissioner Andrew Saul earlier this month.
Unlike most of the 1,200 presidentially appointed senate confirmed (PAS) positions who can be fired for any reason, the commissioner of Social Security — thanks to the 1994 Social Security Independence and Program Improvements Act — was appointed for a six-year term and could only be fired for cause. The six-year term was necessary to ensure that the SSA would have the long-term consistent management necessary to lead an agency without political pressure. SSA touches the lives of millions of Americans as the largest government program with expenditures of over $1 trillion annually covering 180 million workers and paying benefits to almost 70 million Americans including retirees, widows, disabled workers, survivors, and Supplemental Security Income recipients.
The independent status of many agencies was placed into question when the Supreme Court ruled in 2020 (Seila Law v. CFPB) that the president has the authority to fire the head of the Consumer Financial Protection Bureau. The Court took issue that a member of the Executive branch of government could hold so much power without the ability of the president to fire at will. The Court’s concern was limited to those agencies with a single head of power, not a commission structure, such as the Securities and Exchange Commission. The Chief Justice wrote, “an unlucky President might be elected on a consumer protection platform… and find herself saddled with a holdover director from a competing political party who is dead set against that agenda.”
The independent status of agencies was further eroded with the court’s 2021 decision in Collins v. Yellen, when it ruled that the head of the Federal Housing Finance Agency (where one of us was its first director) could be fired by the president for any reason, and then one was fired immediately.
The final nail in the agency independence coffin was hammered on July 9, when Biden fired Saul in what Saul described as echoing Nixon’s “Friday Night Massacre.” Any illusion remaining that independent agencies were insulated from political interference ended that night.
Many will agree with the Supreme Court’s decision that agency heads should serve at the pleasure of the president. One would hope that the test for dismissal would model Chief Justice Roberts’ theme of major policy differences rather than removing a competent manager who was making long overdue reforms in systems, the disability program and communications to better serve the American people, at the behest of labor unions.
One of the reasons reforms were overdue was that there were six years of “acting commissioners” prior to Saul’s two years.
Our immediate concern is that Biden’s firing of Saul will create ripple effects that will hamper the ability of SSA to be managed effectively and with bipartisan oversight. There is now a new, unconfirmed Biden political appointee serving as the acting commissioner, with limited management experience. It is questionable that Senate Republicans will vote to confirm any Biden appointee for the Social Security Commissioner position after the Saul “Massacre.”
The politicization of the federal government has been growing worse for many years. However, Saul’s summary dismissal makes the politicization surrounding Social Security, and the programs the agency administers, even worse. As of today, the Social Security Trustees Report is over three months late. The two public trustee positions, Republican and Democrat, which provide much needed public oversight, have been vacant for the last six years. The three PAS positions on the seven-member Social Security Advisory Board are also vacant. No nominees are pending for any of these important public oversight positions.
Social Security faces immense challenges that will require effective leadership, management and bipartisan oversight given its massive pending deficits. Biden’s decision to fire Saul further increases the challenges and barriers the agency faces in managing the Social Security programs that impact the lives of hundreds of millions of Americans. Congress should immediately hold hearings on the leadership and governance of the Social Security Administration and its programs, and look to create a new, politically stable management and oversight structure.
Jason J. Fichtner and James B. Lockhart III, both served in the position of principal deputy commissioner of Social Security. Lockhart also served as director of FHFA. Fichtner was the last presidential nominee for the Social Security Advisory Board, while Lockhart was the last nominee for Public Trustee of Social Security and Medicare. Both nominations timed out without a Senate vote at the end of 2020.
Fichtner is vice president and chief economist at the Bipartisan Policy Center. Lockhart is a senior fellow at BPC and co-chairs BPC’s Commission on Retirement Security and Personal Savings.