Biden’s Unitary Executive versus Agency Independence
Despite all the talk and media hysteria, President Donald Trump has never fully targeted the bureaucracy. He never fired Anthony Fauci. He never fired Robert Müller. Over four years, and despite various leaks and party letters, President Trump has only dismissed a small handful of the dozen inspectors-general who can be expressly removed by law by the president. As I often point out, Trump was perhaps the most normative president of my life. I was proud to serve him in a variety of roles including an attorney in the White House and in the Office of Personnel Management, the federal agency responsible for ensuring the integrity of our nation’s civil service.
In contrast, President Joe Biden has taken a number of norm-breaking measures that President Trump never considered and should not have considered. These measures endanger the diversity and rights of the First Amendment of our federal employees.
First, President Biden has targeted the rights of professional officials. This includes, among other things, repeated disregard of the Job Reform Act, for example in that a legal partner from the private sector as deputy attorney general performs the functions and duties of his first attorney general. It also includes actual attacks on civil service protection, such as the January 2021 reassignment of James McHenry, the career director of the Justice Department’s Executive Office of Immigration Review, in strict violation of the 120-day reassignment moratorium.
These unprecedented attacks on the independence of the federal civil service include attacks on independent authorities.
I was honored to be appointed by President Trump to the Council of the United States Administrative Conference (ACUS). This independent agency has had a solid reputation for decades due to the caliber of its appointees and its reputation for impartiality. Indeed, during my tenure under President Biden on that council, I supported his nomination as Head of the Office of Management and Budget, Neera Tanden.
So I was surprised when President Biden launched a head-on assault on norms and institutions that President Trump had never touched, taking steps to remove myself and other councilors from the administrative conference, deeply politicizing an agency that has never fired has been. I was silent for months precisely because I was hoping this unwise decision wasn’t a trend, even though one of my other council members filed a federal lawsuit against the illegal act.
However, I later learned that President Biden had targeted board members of the National Capital Planning Commission (NCPC), which again has never happened before. These alleged layoffs are very serious because the board, like ACUS, is independent. In fact, the members of the NCPC board of directors are balanced between executive and Congress, factors that, given recent Supreme Court rulings, strongly suggest that Biden has acted illegally again.
Just last week, I learned that the president was targeting independent agencies again. This time he tries to fire Justin Shubow and other members of the Commission of Fine Arts. Shubow, like the other commissioners, is excellently qualified, having been a frequent commentator on art policy and director of the National Civic Arts Society for years. And, like these other independent agencies, in its hundred years or so bipartisan operation, it has never attempted to fire members of the board of directors, not even under President Trump.
I also learned last week that Biden is trying to fire a member of the Presidio Trust for the first time. This little-known federal agency has a small mandate: to manage 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 lifelong San Francisco resident and a strong advocate of the public land. His dismissal is also unprecedented and legally doubtful, and Savage has noted that he may be suing.
Finally, on Thursday last week, a whispering campaign began against the highly skilled West Point graduate and member of the Academy’s visitors committee, Douglas Macgregor.[[[[Editor’s Note: Douglas Macgregor is a Senior Fellow at The American Conservative.]This is a transparent attempt by the Biden administration to sow the seeds before Macgregor is dismissed from this body. His offense? Previously reported, anonymous allegations relating to private political speeches that had nothing to do with his work on the board.
These attacks on the civil service and on independent agencies are remarkable because they represent actual cases of assault, which, in turn, never occurred under President Trump. Despite his rhetoric, his exercise of political control (and his alleged superiority) was not as aggressive or thorough as we saw directly from President Biden.
If this were the mere exercise of political control by a president with a solid view of executive power, it might be wrong, but it might not be worrying. Officials and members of independent agencies might then expect that under the next Republican administration, “Drain the Swamp” could be not just a slogan but a specific program.
However, President Biden has continued to pay lip service to the expertise and independence of the authorities while engaging in ideological indoctrination and examining the personal beliefs of professional officials and our military. We are already seeing government proposals to monitor service members’ social media, just the opening salvo of a task force led by Pentagon Senior Advisor Bishop Garrison. This has never happened before. On top of that, staff in the White House President’s office specifically advised that when they were hired, they were aiming for certain demographics (something no other OPP did, including when I worked there under President Trump), and everyone Officials in the government should be concerned.
Our nation’s federal workforce, including our military, must be of continuity and reflect our nation’s population. They need to have the tools to do their job. That includes trusting that the White House resident will obey the law, both the written laws and the traditional norms that enable our federal workers to function. Recent actions by President Biden have threatened that belief.
Andrew Monastery is a lawyer in his own practice in Washington, D.C. He was previously Associate Director for Presidential Personnel in the White House and Deputy General Counsel in the Office of Personnel Management under President Trump.