Biden Moves to Fire Social Security Commissioner, Sparking Debate on For-Cause Protections for Agency Leaders

Last week, President Biden requested resignations from the Commissioner and Deputy Commissioner of the Social Security Administration (SSA). Deputy Commissioner David Black provided his resignation, but Commissioner Andrew Saul refused. Following this refusal, President Biden notified Saul that his employment was terminated.

Commissioner Saul has been criticized by various stakeholders for continuing the previous administration’s “anti-union” policies. Ralph DeJuliis, president of the American Federation of Government Employees Council 220, which represents Social Security field office employees, told Government Executive that the Commissioner and Deputy “destroyed employee morale, mismanaged the distribution of key stimulus relief funds to millions of elderly and disabled beneficiaries, and led the charge to create an anti-employee, anti-union workplace.”

Both Commissioner Saul and Deputy Black were nominated and confirmed under President Trump. By statute, both positions are appointed for six-year terms and require cause for termination.

Based on the for-cause protections in the statute, Saul told the Washington Post in an interview Friday that he would not leave his post and challenged the legality of the White House move to fire him. Saul also said the removal was unexpected and would leave the agency in “complete turmoil.”

The White House was advised by a Department of Justice Office of Legal Counsel memorandum which outlined the legal precedent for removing the Commissioner at will, regardless of the statute.

The memorandum highlights the Supreme Court’s recent decision in Collins v. Yellen and previous decision in Seila Law LLC v. Consumer Financial Protection Bureau. In Collins, the Court built on Seila Law to find that statutory for-cause protections for the head of the Federal Housing Finance Agency violated the Constitutional separation of powers – which require the president to have sufficient supervision and control over executive branch agency leaders.

While Collins did not directly comment on the constitutional of any removal restrictions for the SSA Commissioner, the memo predicts the “immense scope of the agency’s programs, the Commissioner’s broad power to affect beneficiaries and the public fisc, and the SSA’s largely unparalleled structure” means the president is not constitutionally bound by the statutory for-cause removal requirements. The memo ends with the conclusion that these cases allow the president to remove the SSA Commissioner at will.

While Saul declined to say whether he would be taking legal action against the Biden administration, he has refused to leave his position and told the Washington Post, “I intend to protect my rights.”

Senate Minority Leader Mitch McConnell (R-KY) joined fellow Republican Senators in tweeting support for Saul, saying, “This removal would be an unprecedented and dangerous politicization of the Social Security Administration.”