Donald Trump has left the presidency and almost all of his political appointees in the executive branch have also left their government positions. Trump, however, is leaving behind two political appointees who oversee almost 25 percent of executive branch outlays — Andrew Saul and David Black, the commissioner and deputy commissioner of the Social Security Administration (SSA) who are currently serving terms that expire at the end of President Biden’s first term in office. This situation is the result of the Social Security Independence and Program Improvements Act of 1994.
Before getting into needed changes regarding the terms of the top two positions at SSA, let me provide a bit of background. Before 1994, SSA was part of the Department of Health and Human Services and the commissioner was a political appointee who reported to the HHS secretary. In the 20 years prior to the introduction of bills that would change that structure, Congress noted an increasing backlog of disability claims, frequent turnover of agency personnel — including 12 commissioners, six of whom served as acting commissioners — and increasing political intervention in the administration of Social Security.
Both the House and Senate version of the bill separated SSA from HHS to establish an independent agency “in the executive branch of government.” That is, SSA would become independent of HHS but not of the executive branch.
The House and Senate versions differed, among other things, on who would run the newly independent agency.
The House version would have created a three-member board appointed by the president subject to Senate confirmation who would serve staggered six-year terms. The board would appoint an executive director to run the agency and would serve a four-year term. The executive director would appoint a deputy director who would serve at their pleasure.
The Senate version would have created the office of the commissioner with a commissioner appointed by the president subject to Senate confirmation to serve a four-year term coincident with the president’s term of office. A deputy commissioner would also be appointed by the president subject to Senate confirmation to serve a coincident four-year term.
After the conference to reconcile the differences between the House and Senate versions, the enacted legislation created an independent SSA as part of the executive branch and a commissioner and deputy commissioner appointed by the president subject to Senate confirmation to serve six-year terms. The commissioner does not serve at the pleasure of the president; he or she “may be removed from office only pursuant to a finding by the president of neglect of duty or malfeasance in office.” The act is silent on the midterm removal of the deputy commissioner; presumably they can be fired at-will by the president.
The fixed terms for the commissioner and deputy commissioner were intended to bring stability to SSA, but did it? Since the act was passed in 1994 there have been 11 commissioners, six of whom were acting commissioners. Two of the five other commissioners were appointed by and served under President Clinton. Two of the three appointed by a Republican president had terms that extended into the terms of a Democratic president. Michael Astrue was appointed by President Bush in 2007 and served as SSA commissioner until 2013 — into President Obama’s second term. Andrew Saul was appointed by Trump and could serve throughout Biden’s entire first term. Obviously the 1994 act did not bring stability to SSA’s leadership as intended.
Furthermore, commissioners selected by one president that serve into another president’s term, especially if the presidents are of different parties, are unlikely to have much influence on policy discussions within the administration. In addition to managing a large agency and making sure that the checks go out at the right time to the right people, an important part of a commissioner’s job is to have a seat at the table when policy discussions take place and have the ear of the president.
The Senate’s original plan to have the commissioner serve a four-year term coincident with the term of the president is the best way to ensure the commissioner will have influence within the administration. However, changing those terms will require new legislation, which will take time to work its way through Congress. In the meantime, President Biden can and should fire deputy commissioner Black and put pressure on commissioner Saul to resign. Only then can Biden select qualified people whom he trusts and can work with to run the Social Security Administration.
Thomas Hungerford was the associate commissioner for retirement policy at the Social Security Administration until January 2017.