On Wednesday, Roger Severino, former director of the Office of Civil Rights at the Department of Health and Human Services (HHS) under President Donald Trump, sued President Joe Biden. Biden had attempted to remove Severino from the Council of the Administrative Conference of the United States (ACUS), a half-governmental board that helps analyze and improve the federal bureaucracy. Trump had appointed Severino to a three-year term on January 16, 2021, but Biden attempted to remove him on Tuesday.
Severino filed a lawsuit in federal district court, asking for a preliminary injunction to prevent Biden from terminating his employment or to reinstate him should Biden illegally attempt to fire him.
“The statute governing ACUS provides that Mr. Severino’s term on the Council lasts for three years, and the statute makes no provision or allowance for at-will Presidential removal,” the lawsuit states. “President Biden has no authority to terminate Mr. Severino’s appointment to the Council under 5 U.S.C. § 595(b) or Article II of the Constitution. Mr. Severino seeks a temporary restraining order and preliminary injunction to prevent this unlawful removal.”
According to the lawsuit, Gautam Raghavan, the deputy director of the White House Presidential Personnel Office, sent Severino an email on February 2, threatening to terminate Severino’s employment unless he should resign. The email read:
I am writing on behalf of President Biden to request your resignation
from the Administrative Conference of the United States Council by
5:00 p.m. ET tomorrow, Wednesday, February 3. If you do not resign
by that time, your appointment to the Council will be terminated.
Thank you for your time and service.
Was surprised by your note. What are the grounds for the request for
my resignation so early in my appointed term?
Neither Raghavan nor anyone else in the White House responded to Severino’s email.
“Mr. Severino has not resigned and will not resign in response to President Biden’s request, and he is facing a threat of imminent termination,” the lawsuit states. The lawsuit also claims that Raghavan has sent similar members to other members of the council, including Jennifer Dickey, Andrew Kloster, and Daniel Epstein, threatening them with termination if they do not resign.
The Administrative Conference of the United States (ACUS) consists of 75 to 101 members and aims to bring outside experts in to cooperate with federal agencies. ACUS aims to promote public participation, reduce unnecessary litigation, improve the use of science, and improve the effectiveness of laws in the regulatory process.
The conference includes a council of the ACUS chairman and ten other members appointed by the president, five of whom must not be employees of federal agencies or executive departments. “The term of each member, except the Chairman, is 3 years,” the law establishing ACUS states.
The lawsuit explains that ACUS has no governmental power, so Biden does not have any implied executive power to terminate its members.
“President Biden has no constitutional authority under Article II to terminate Mr. Severino’s appointment to the Council. The Council does not wield any executive power—indeed, it does not wield any power at all as a purely advisory entity— so President Biden has no constitutional power to terminate Mr. Severino or any other member of the Council,” the lawsuit claims, citing precedents that show the president does not have a constitutional prerogative to remove members of “multimember expert agencies that do not wield substantial executive power.”
The case seems rather cut and dried.
Furthermore, Biden’s attempt to fire Severino may be ideologically motivated. At HHS, Severino founded the government’s first division to monitor conscience and religious-freedom compliance. He helped reverse the Obama administration’s religious freedom abuses, including the contraception mandate and the transgender surgery mandate.
On Wednesday, the Ethics and Public Policy Center (EEPC) announced that Severino would join its team of scholars, leading the HHS Accountability Project, which will monitor HHS’s work from the outside. He will watch Biden’s HHS to make sure that abortion and assisted suicide are not considered health care — Biden’s HHS is likely to define them as such. He will also report on Biden’s HHS if it violates religious freedom protections, which Biden himself has pledged to do.
As president, Joe Biden enjoys a broad range of constitutional powers, but it is not in his power to fire Roger Severino.
This bald abuse of power echoes the Biden administration’s callousness in dealing with former Trump administration employees. Biden’s administration denied parental leave benefits to pregnant women who served in the Trump administration.
“I got completely screwed,” Vanessa Ambrosini, who worked in the Trump administration for four years, told Politico. “There were no caveats in that language saying anything about if the administration turns, you get nothing and of course, that happened and so I got nothing.” Her benefits had been approved for January through March by the Commerce Department’s human resources office, but she was informed the day before her baby was due that her leave would be discontinued after January 20, effectively canceling a benefit she was already using.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.