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Newsletter | July 14, 2021

GOP Cries Foul As Biden Seizes on the Supreme Court’s New Precedent

Department of JusticeIndependent Agencies

After months focused on the infrastructure bill, the Biden administration appears to be leaning into bold, executive action once again. On Friday, the President signed an executive order directing a dozen different agencies to take specific steps to promote competition. Many heralded the move as the start of a new trust-busting era. 

At the same time, agency and department officials are starting to set big changes in motion. Earlier this month, for example, the Department of Agriculture announced new rulemakings to help protect agricultural producers from monopolistic buyers and suppliers. Meanwhile, the Office of the Comptroller of the Currency announced a major reorganization designed to make the agency more effective.  

All of this is highly encouraging, but we may be most excited about another of Biden’s recent actions: firing Social Security Administration Commissioner Andrew Saul and his deputy David Black. Advocates (including us) have been calling for both officials’ removal since before Biden took office, but doubled down late last month after the Supreme Court ruled that the President could remove the Director of the Federal Housing Finance Agency (FHFA) and Biden promptly followed through. While the precedent clearly applies to SSA, it was not obvious that Biden would act on it. After all, it was all but certain that the Supreme Court’s decision last year to make the Director of the Consumer Financial Protection Bureau fireable at will would apply to FHFA. And yet, Biden awaited clearer confirmation before acting. We hope that his decision not to wait this time around is a signal of the administration’s increasing willingness to take calculated risks, based on good faith interpretations of the law, to advance the public interest. 

Of course, Republicans are apoplectic that Biden is using a precedent that springs from a brazen effort to help big business cheat consumers and destroy the housing finance system to, instead, help people who rely on social security. The gall! They’re already warning of retaliation. Biden should tell them to “bring it on.” Saul is an anti-social security ideologue whose only qualification is that he’s written big checks to Republican lawmakers. While in office, he threatened social security benefits and delayed stimulus money for millions. In firing Saul, Biden is defending a popular, universal program and following through on his campaign promises. Republicans, in contrast, are fervently fighting for a major donor’s right to take actions that most Americans would hate. This should be a slam dunk for Biden. 

What’s more, the actual terrain of this fight could also prove beneficial. Politically, few issues are of greater salience to voters than Social Security, and clarifying the difference between the two parties on this issue ought to be a high priority for Democrats. Good governance AND effective communications would mean political gain — which is not “politicization,” but rather how a democracy is supposed to work. 

Further, from a process standpoint, Republicans are deeming the self-parodying Saul — who, in addition to targeting benefits, undertook cartoonishly cruel actions to target SSA workers, like scrapping a popular telework while failing to work from the office himself — a martyr and threatening to slow the confirmation process for Biden’s nominees even further. The glacial pace of confirmations thus far has already made clear that the process is in desperate need of reform. This added strain could be the impetus for enacting those changes.


This wave of bold, new action seems largely to have bypassed the Justice Department. Although we have seen some encouraging new developments, like a moratorium on federal executions, the thrust of action from components other than the Civil Rights Division still seems to be moving in the wrong direction. That is why we, alongside six other groups, sent a letter to President Biden criticizing Garland’s actions and calling for either a change in direction or a change in leadership. 

Unfortunately, it seems that the extent to which this Justice Department has maintained the prior administration’s indefensible positions remains vastly underappreciated. In the coverage of the Supreme Court’s disastrous voting rights decision, for example, it went entirely unremarked upon that Biden’s DOJ “failed to defend the Voting Rights Act against this attack…when it had the chance.” Many may also have forgotten that Congress’ pursuit of Trump’s tax returns is still ongoing because the DOJ has refused to drop its opposition. 

All of this is not even to mention the fact that the DOJ needs to do much more than simply return to the pre-Trump status quo to truly fulfill its mandate as the “People’s Department.” For example, as our Zena Wolf wrote, “reversing the decades-long trend toward prosecuting and silencing government whistleblowers” will be essential to “creat[ing] a stronger and more transparent executive branch.” That trend has been upheld by DOJ leaders from both parties and, so far, Garland has offered little meaningful indication that he will be different. 


Progressives named to the Biden administration are already starting to deliver. Their success, however, is making the missed opportunities that protracted vacancies and captured officials represent all the more notable. 

Advocates, for instance, are beginning to grow impatient with the absence of nominees for financial regulatory, anti-monopoly, and many other types of positions almost six months into Biden’s term. It’s clear that, had the right people already been confirmed, transformative changes might already have been underway. Instead, they are still months away. 

Now that bold, public-minded officials are starting to broaden the bounds of what many understand to be possible through executive action, conflicted appointees’ clear disinterest in acting similarly is looking more and more disappointing. Just look at the acting head of the Civil Division at the Justice Department, recent BigLaw partner Brian Boynton. Boynton is not only failing to advance, but actively undermining, climate action, as our Dorothy Slater and Zena Wolf explain in a recent blog. Worse still, there’s reason to worry whether the permanent nominee to lead the Environmental and Natural Resources Division (ENRD), Todd Kim, will “proactively and aggressively fight on behalf of the public good.”  

The sudden, mysterious withdrawal of Heidi Crebo-Rediker’s nomination for Treasury undersecretary of international affairs has us hoping that Biden’s team may be starting to recognize that conflicted appointees are a real liability and progressive ones an asset. If that’s the case, they should move quickly to withdraw Neil MacBride’s nomination to be Treasury General Counsel too. To avoid making damaging picks in the first place, they would do well to look at BigLaw partners with a great deal more skepticism. Our BigLaw series, to which we added a report on Latham & Watkins last week, makes clear why it’s warranted. 

Independent Agencies

It’s not just the infrastructure bill and the debt ceiling that should be keeping the Senate busy this summer. Urgent nominations to the National Labor Relations Board (NLRB) must also figure on its to-do list. With the expiration in late August of Republican NLRB member William Emmanuel’s term, Democrats will be able to retake the majority, provided the two pending nominees are confirmed before then. Read about some of the other positions that are awaiting nomination and confirmation in our most recent agency update

The Senate will also need to act fast as soon as Biden names a nominee for the seat available on the Federal Energy Regulatory Commission (FERC). That announcement is reportedly expected soon. For more on some of those who are under consideration, check out this blog from our Dorothy Slater. 

Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:

The Biden Administration Should End the War on Whistleblowers

He Repped Exxon Against the U.S. What’s He Doing on Team Biden?

Biden Hires Top Officials From Big Tech-Aligned Law Firm, New Report Finds 

GUEST CONTRIBUTION: What Can a New USPTO Director Do? 

Biden Must Withdraw ExxonMobil- And Wall Street-Linked Nominee, 23 Groups Say 

Corporate BigLaw Is Infiltrating The DOJ, Jeopardizing Necessary Climate Action

Biden Labeled the Supreme Court’s Voting Rights Decision a “Disappointment.” His Justice Department Failed to Oppose It. 

Anita Dunn Paid To Evade Transparency, Undermining Trust In Government 

FERC Nominee Must Be Independent From Utilities Driving Climate Crisis And Hurting Consumers 

Biden Hiring Spree Looms For Key Bank Regulatory Posts

How Much Influence Did Exxon Have Over Biden’s Infrastructure Package?

One Weird Trick to Force Billionaires to Pay Taxes

FERC’s EJ tipping point 

Left-wing groups criticize Biden Treasury nominee over work for Exxon, Wall Street

Letter criticizes Justice Department on Trump-era precedents

Progressives are shaping the Biden administration from key offices

7 candidates to lead Fannie and Freddie’s regulator

Trump Alumni Are Building a ‘Dumb Cash’ MAGA Ecosystem

Department of JusticeIndependent Agencies

More articles by Eleanor Eagan

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