During his first weeks in office, President Joe Biden has ousted a number of powerful officials appointed by Donald Trump. One controversial figure from Trump’s presidency, however, remains in office: Louis DeJoy, the notorious postmaster general who almost sabotaged mail voting in the fall and continues to gut the agency, creating catastrophic delays throughout the country. Progressives are furious that DeJoy has kept his post, but Biden’s hands are tied: While the president can fire other high-ranking executive officials at will, federal law bars the president from terminating the postmaster general under any circumstances. Biden can attempt to oust DeJoy indirectly, but that option is fraught with legal uncertainties, and certain to trigger Republican complaints of norm busting. Unless the president is willing 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 gone: He is an unqualified Trump donor who seems to have done everything in his power to ruin the Postal Service. USPS slowdowns have been a recurring issue since the summer, when DeJoy implemented a slew 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 reduced hours at retail post office locations. Predictably, these changes created massive backlogs and rapidly diminished on-time delivery rates. During the 2020 presidential election, a USPS filing showed major slowdowns in swing states for first-class service, the delivery status assigned to mail ballots. NBC found that between 25,000 and 50,000 ballots likely came in too late to be counted due to poor USPS service.
If DeJoy served at the pleasure of the president, Biden surely would’ve fired him on Day One. But he doesn’t. The problem, ironically, originates from Congress’ desire to insulate USPS from politics. For most of American history, the Postal Service played an integral role in the spoils system, and postmaster general was a plum post 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 USPS’s activities, Congress established a nine-member board of governors who are nominated by the president and confirmed by the Senate. No more than five members of the board may belong to the same political party. Once confirmed to the board, governors can only be removed by the president “for cause”; that means their jobs are safe unless the president can show that they engaged in malfeasance or extreme neglect of 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 removed by the board, though it need not justify its decision.
This structure, in short, is why Louis DeJoy remains postmaster general under Biden. The board of governors is dominated by Trump appointees; Senate Republicans refused to confirm President Barack Obama’s nominees to the board, leaving vacancies that Trump promptly filled. Today, there are four Republicans and two Democrats on the board, plus three vacancies. One Democrat, Ron Bloom, is serving a holdover term, which means Biden can replace him at any time. Thus, Biden can fill four seats on the board of governors—a move that would flip the board, giving Democrats a 5–4 majority. The new president can then urge the Democratic members to remove DeJoy, which they can do by a majority vote.
Filling these vacancies is the simplest way for Biden to get rid of DeJoy, though 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 appears unlikely that Moak would choose to oust a postmaster general whom he supported less than one year ago. And if Moak declined to join Biden’s nominees in firing DeJoy, the postmaster general would retain his position 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 slate of governors committed to removing DeJoy. This plan faces a major hurdle: Federal law allows Biden to terminate governors “only for cause.” Democratic Rep. Bill Pascrell has argued that the president already has cause to fire the current board because it violated its legal duty 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 good cause for their removal.”
Legal experts question whether this theory would hold water in court. “To fire board members ‘for cause’ requires an individual showing that the particular member did something repugnant,” said Rena Steinzor, a 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 as a justification for firing its entire board would be a very hard sell in court.” Steinzor added that “as urgent as this situation is, I don’t think the mass firing decision would hold up.”
Peter Shane, a professor at Ohio State University Moritz College of Law, agreed. “For cause removals of independent agency administrators are so rare,” Shane said, that “there’s no real body of precedent on what it takes to justify such a discharge.” To shore up the inevitable legal challenge, Shane suggested that Biden would need to “offer a pretty detailed bill of particulars as to deficiencies in performance that had been brought to the board’s attention, which they then neglected to address in a timely fashion.”
If Biden fails to provide sufficient cause for termination, he has another, riskier route: He can argue that the board’s job protection is unconstitutional. In 2020’s Seila Law, a 5–4 decision, the Supreme Court’s conservative justices ruled that the president may fire the director of the Consumer Financial Protection Bureau, striking down the rule that she can only be removed “for cause.” Because the CFPB director wields executive power that is effectively borrowed from the president, the court held, the president must be able to fire her for any reason. Three justices in the majority limited their holding to agencies led by a single director and declined to say whether their reasoning also invalidated the independence of multimember commissions (like the board).
By firing the USPS board of governors without genuine cause, Biden would be testing the limits of Seila Law—in effect, daring the Supreme Court to let the president fire the heads of any agency. This dare could have devastating consequences across the executive branch. There are scores of independent agencies, including the Federal Reserve System, the Federal Trade Commission, and the Equal Employment Opportunity Commission. Like the board of governors, the leaders of these agencies are protected from presidential termination without cause. Progressives generally support this independence, because it limits partisan interference in the everyday administration of government. If Biden persuaded the Supreme Court to eradicate agency independence, the next president could purge every federal agency, replacing experts and civil servants with loyalists and hacks.
Given these potential ramifications, Biden might prefer to let the current governors’ terms expire rather than fire them immediately and trigger a catastrophic SCOTUS ruling. One Trump appointee, John McLeod Barger, will leave the board in December, giving Biden an 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 have reported over the past week that their constituents are complaining about severe delays for important mail like bills and prescriptions. In the week of Dec. 26, the last period for which USPS publicly disclosed its delivery rates, only 63.87 percent of first-class mail made it to its destination on time across the U.S. The on-time delivery rate was even worse during that week in certain localities: It was only 29.97 percent in Baltimore, 32.32 percent in Central Pennsylvania, and 27.82 percent in Northern Ohio. Overall, in the fourth quarter of 2020, USPS never came close to the 96 percent on-time delivery standard that the agency sets for itself.
These awful performance metrics don’t seem to have dissuaded DeJoy from trying to further cut costs. The Washington Post reported that the postmaster general is expected to announce plans as soon as next week to implement “more service cuts, higher and region-specific pricing, and lower delivery expectations.” At the same time, he’s moving to convert 10,000 temporary workers into full-time employees, which postal unions say is encouraging but not enough to alleviate the stress on the overtaxed workforce.
Improving the Postal Service would have an immediate, beneficial impact on almost every American’s life. But it can’t happen while DeJoy is in charge, and there’s no easy way for Biden to get him out of office. The new president will remain saddled with Trump’s postmaster general for at least a year—unless he decides that rescuing the Postal Service is more urgent than respecting its independence.
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