On Friday, July 9, 2021, President Biden fired Social Security Commissioner Andrew Saul after he refused the President’s request that he resign. The President named Kilolo Kijakazi as Acting Commissioner. Kijakazi had replaced Mark Warshawsky as deputy commissioner for Retirement and Disability Policy on the day of Biden’s inauguration. She was previously with the Urban Institute, where her work and research included a focus on economic security and structural racism. Assistant Deputy Commissioner Steven Evangelista is now Acting Deputy Commissioner for Retirement and Disability Policy
According to news reports, Commissioner Saul described the firing as the “Friday Night Massacre,” a “bolt of lightning” no one saw coming. Advocates, however, have been calling for Saul to be replaced for months. Saul initially claimed he would continue working but apparently SSA officials “off boarded” him, denying him access to the agency’s systems. The agency quickly changed its organizational chart, removing Saul and replacing him with Acting Commissioner Kijakazi. The Deputy Commissioner position remains vacant, after David Black agreed to resign.
In addition to the many public calls for him to be removed, several legal developments appeared to pave the way for Biden to fire Saul. Both Saul and Black had been nominated by former President Trump and confirmed by the Senate in 2017 for terms ending in 2025. Although those terms were considered protected and only subject to termination for malfeasance, recent decisions by the Supreme Court have held otherwise. In Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020), the Court held unconstitutional a similar statutory tenure protection conferred on the Director of the Consumer Financial Protection Bureau (“CFPB”). And in Collins v. Yellen, 141 S. Ct. 1761 (2021), the Supreme Court concluded that a provision requiring “cause” for the removal of the Director of the Federal Housing Finance Agency (“FHFA”) is unconstitutional. Bolstered by a memo from the Department of Justice, President Biden determined he could indeed remove Saul based on the court precedents.
Saul has threatened to take action to defend his position, but as this newsletter went to press, it remained unclear what that action might be. Congressional Republicans have also come to Saul’s defense. And he again defended himself on July 19th in an op-ed piece in the Wall Street Journal. But as Nancy Altman, an attorney and president of Social Security Works, an advocacy group that had called for Saul to go, told the Washington Post, “I think he can make a lot of noise and get the Republicans to make noise but in terms of the law, I would be shocked if a court found the president didn’t have the power to fire him.” As Saul said, stay tuned!