Why Biden can’t fire the Postmaster.

During his first few weeks in office, President Joe Biden ousted a number of senior officials appointed by Donald Trump. However, a controversial figure in Trump’s presidency remains in power: Louis DeJoy, the infamous Postmaster General who nearly sabotaged mail-in voting in the fall and continues to gut the agency, creating catastrophic delays throughout. country. Progressives are furious that DeJoy has retained his post, but Biden’s hands are tied: While the president can fire other senior executive officials at will, federal law prohibits the president from firing the Postmaster General under any circumstances. Biden may attempt to oust DeJoy indirectly, but that option is fraught with legal uncertainties and is certain to spark Republican complaints of standards violations. Unless the president is prepared to take a significant legal risk, DeJoy will remain in control for months or years to come.

It’s easy to see why progressives want DeJoy to disappear: he’s an unqualified Trump donor who appears to have done everything in his power to ruin the Postal Service. USPS slowdowns have been a recurring problem since the summer, when DeJoy implemented a series of cost-cutting measures that suddenly and severely degraded delivery services. His policies prohibited delivery trucks from waiting for late mail or making extra trips, dismantled sorting machines, cut overtime, and cut hours at retail post offices. As you might expect, these changes created massive backlogs and rapidly reduced on-time delivery rates. In the 2020 presidential election, a USPS filing showed major slowdowns in swing states for first-class service, the delivery status assigned to mail-in ballots. NBC found that between 25,000 and 50,000 ballots likely arrived too late to count due to poor service from the USPS.

If DeJoy had served at the President’s pleasure, Biden surely would have fired him on day one. But he doesn’t. The problem, ironically, stems from Congress’ desire to isolate the USPS from politics. For most of American history, the Postal Service played a vital role in the loot system, and the Postmaster General was a privileged position for an ally of the President. In 1970, Congress overhauled the structure of the Postal Service to end this sordid tradition of patronage by giving the agency substantial independence. To oversee the activities of the USPS, Congress has created a nine-member board of directors who are appointed by the president and confirmed by the Senate. No more than five members of the office may belong to the same political party. Once confirmed to the board, governors can only be removed by the president “for cause”; it means their jobs are safe unless the president can show that they have engaged in wrongdoing or extreme neglect of their duty. The Board of Governors, in turn, selects the Postmaster General, who is not subject to Senate approval. And once appointed, the Postmaster General can only be dismissed by the council, without having to justify his decision.

This structure, in short, is the reason Louis DeJoy remains Postmaster under Biden. The board of governors is dominated by those appointed by Trump; Senate Republicans have refused to confirm President Barack Obama’s nominees for the board, leaving vacancies that Trump quickly filled. Today there are four Republicans and two Democrats on the board, plus three vacancies. A Democrat, Ron Bloom, is serving a term, which means Biden can replace him at any time. So Biden can take four seats on the board of governors – a move that would overthrow the board, giving Democrats a 5-4 majority. The new president can then urge Democratic members to remove DeJoy, which they can do at home. majority.

Filling these positions is the easiest way for Biden to get rid of DeJoy, although there is no guarantee that it will actually work. The new board would include five Democrats – but one of them, Donald Lee Moak, is a Trump-appointed moderate who voted for DeJoy in the first place. It seems unlikely that Moak would choose to oust a Postmaster General he backed less than a year ago. And if Moak refused to join Biden’s candidates in firing DeJoy, the Postmaster General would keep his post indefinitely.

Democrats who fear this scenario have pushed Biden to fire some or all of the current board members, allowing him to install a whole new roster of governors determined to remove DeJoy. This plan faces a major hurdle: Federal law allows Biden to fire governors “only for cause.” Democratic Representative Bill Pascrell argued that the president already had reason to fire the current board because he violated his legal obligation to “represent the public interest.” According to Pascrell, “the governors’ refusal to oppose the worst destruction ever inflicted on the postal service was a betrayal of their duties and unquestionably constitutes a good cause for their dismissal”.

Legal experts question whether this theory would hold up in court. “To fire board members ‘for cause’ you have to have someone prove that the board member did something disgusting,” said Rena Steinzor, professor at the University of Maryland School of Law. “Allowing a president to decide that he doesn’t like what the agency as a whole is doing to justify firing its entire board of directors would be a very tough sale in the courts.” Steinzor added that “as urgent as this situation is, I don’t think the mass dismissal decision would hold up.”

Peter Shane, a professor at Ohio State University Moritz College of Law, agreed. “For good reason, dismissals of directors of independent agencies are so rare,” Shane said, “there is no real precedent on what it takes to justify such a discharge. To buttress the inevitable legal challenge, Shane suggested that Biden should “offer a fairly detailed account of the performance shortfalls that had been brought to the attention of the board, which they then neglected to address in time. timely.

If Biden doesn’t provide sufficient cause for dismissal, he has another riskier route: he can argue that the council’s job protection is unconstitutional. In the 2020s Seila Law, a 5–4 decision, conservative Supreme Court justices ruled that the president could fire the director of the Consumer Financial Protection Bureau, overturning the rule that she could only be removed “for cause”. Because the CFPB director wields executive power that is effectively borrowed from the president, the tribunal ruled, the president must be able to dismiss her for any reason. Three judges in the majority limited their participation to agencies run by a single director and declined to say whether their reasoning also invalidates the independence of multi-member committees (like the board).

By firing the USPS board of governors for no real reason, Biden would test the limits of Seila Law– indeed, daring the Supreme Court to let the president dismiss the leaders of any agency. This challenge could have devastating consequences across the executive branch. There are many independent agencies, including the Federal Reserve, Federal Trade Commission, and Equal Employment Opportunity Commission. Like the Board of Governors, the heads of these agencies are protected from presidential dismissal without cause. Progressives generally support this independence because it limits partisan interference in the day-to-day administration of government. If Biden persuades the Supreme Court to stamp out agency independence, the next president could purge all federal agencies, replacing experts and officials with loyalists and hacks.

Given these potential ramifications, Biden might prefer to let the terms of the current governors expire rather than dismiss them immediately and trigger a catastrophic decision from SCOTUS. Trump-appointed member John McLeod Barger will step down from the board in December, giving Biden the opportunity to appoint another anti-DeJoy member by early 2022. But it is not clear whether the country can wait that long. USPS service continues to deteriorate: Lawmakers in Illinois, Maryland, Virginia and other states reported last week that their constituents were complaining about long delays for important mail like bills and prescriptions. During the week of December 26, the last period for which USPS publicly disclosed its delivery rates, only 63.87% of first-class mail arrived at its destination on time across the United States. weather was even worse during that week. in some places: it was only 29.97% in Baltimore, 32.32% in central Pennsylvania and 27.82% in northern Ohio. Overall, in the fourth quarter of 2020, USPS never came close to the agency’s 96% on-time delivery standard.

Those horrible performance metrics don’t seem to have deterred DeJoy from trying to cut costs further. The Washington Post reported that the Postmaster General is expected to announce plans as early as next week to implement “more service cuts, higher, region-specific prices, and lower delivery expectations.” At the same time, it plans to convert 10,000 temporary workers into full-time employees, which postal unions find encouraging but not enough to alleviate the stress on the overtaxed workforce.

Improving postal service would have an immediate and beneficial impact on the lives of almost all Americans. But that can’t happen while DeJoy is in charge, and there’s no easy way for Biden to get him to step down. The new president will remain grappling with Trump’s Postmaster General for at least a year – unless he decides that saving the Postal Service is more urgent than respecting its independence.