Bench Memos

Law & the Courts

Severino v. Biden and the Unitary Executive

On the same day we announced the excellent news that Roger Severino, the outstanding former Director of HHS’s Office for Civil Rights, has joined my team of colleagues at the Ethics and Public Policy Center, Roger filed a lawsuit against President Biden to thwart Biden’s effort to remove Roger from his position on the Council of the Administrative Conference of the United States. ACUS is an independent agency of the federal government that is charged with promoting improvements in how federal agencies operate.

Short version: Roger was recently appointed to a three-year term. The governing statute does not confer on the president any power to remove members of the ACUS Council. Biden does not have the constitutional power to do so under existing case law, including the Supreme Court’s 1935 ruling in Humphrey’s Executor v. United States that proponents of the unitary executive vigorously contest.

My initial take is that this case looks like a no-lose proposition from my perspective: Either Roger wins and retains his position on the ACUS Council, or Humphrey’s Executor ends up getting overruled. My guess is that the White House will cave.


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