The Conservative Idea That Would Let Biden Seize Control of Washington
Despite President Donald Trump’s landslide defeat at the ballot box in November, Senate Majority Leader Mitch McConnell and his GOP caucus have embarked on a course to stack the federal administrative state with eleventh-hour appointees. The GOP-controlled Senate appears to be filling every open federal post in sight. These confirmations, such as that of Nathan Simington on Tuesday to an open seat on the Federal Communications Commission, and that of Christopher Waller earlier this month to a seat on the Federal Reserve Board, could make it more difficult for Biden to make good on the policies and programs on which he campaigned and won election.
Some of these “midnight” appointments are unlikely to seriously affect President-elect Joe Biden’s ability to implement his regulatory vision. For example, Kellyanne Conway’s appointment to the Air Force Academy’s Board of Visitors and Elaine Chao’s appointment to the Kennedy Center’s Board of Trustees are largely honorific posts and do not involve major policy making authority.
But lame-duck appointees like Simington and Waller present a serious "dead-hand" problem: The outgoing administration will continue to hold power within administrative agencies long after noon on January 20, 2021. Even worse: In many cases, these office-holders are, at least in theory, not subject to at-will removal by the president because federal law provides that they can be removed only for “good cause.” For example, members of the Federal Reserve Board, including newly appointed member Waller, enjoy this statutory protection from removal—with the right to seek judicial review of the legal sufficiency of the president’s reasons if he attempts to remove them from office. By confirming a slew of last-minute Trump appointments to key posts within the administrative bureaucracy, Trump’s imprint on the federal government could remain long after he and Melania have decamped from the White House.
But will President Biden be stuck with a small army of midnight Trump appointees who will reflexively oppose any and all of his administration’s policy initiatives? What, if anything, could the Biden administration do to rid itself of these midnight appointees?
Biden could adopt a theory advanced by conservative judges and legal academics, and long championed by The Federalist Society: The unitary executive theory. Under this theory, President Biden would be constitutionally empowered to remove executive-branch personnel who are opposed to his administration’s policies and programs whether or not they hold a fixed term of office or enjoy statutory good-cause protection against removal.
https://www.yahoo.com/news/conservative-idea-let-biden-seize-230007809.html
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