Sean Spicer
Let’s put the punchline first here: Sean Spicer’s three year term on the Naval Academy Board of Visitors expires on December 30, 2021. He is suing Joe Biden, the Presidential Personnel Office, and entire United States of America over three months of an honorarium. Because that guy is nothing if not dedicated to the bit. Period.
His partner in this interpretive dance cum federal complaint is Russell Vought, the former head of the Office of Management and Budget. In addition to Vought’s role in hiding the White House hold on congressionally allocated defense funds for Ukraine while Trump tried to extort that country to investigate Joe Biden and his son, Vought infamously tried to reclassify great chunks of the federal bureaucracy to deprive employees of civil service protections and make it easier to fire them for political disloyalty.
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A little too ironic, dontcha think?
This pair of geniuses waltzed into court in DC yesterday and demanded that Joe Biden be enjoined from removing them from the advisory board before their terms are up as he threatened to do three weeks ago. If you guessed that the lawyers on this $402 attention grab are a solo practitioner from South Carolina who clerked for Justice Thomas and some dude from Stephen Miller’s anti-immigrant hate shop, then you are 100 percent correct.
“The statute makes no provision or allowance for at-will presidential removal,” they argue, while engaging in some vague handwaving in an attempt to differentiate their case from 2019’s Seila Law holding by noting that the board “does not exercise ‘quasilegislative’ or ‘quasi-judicial’ powers.”
In Seila Law, the Court held that the president could override the “for cause” requirement and dismiss high level appointees before the expiration of their terms, while lower level non-legislative or non-judicial positions might be protected. Except that there are no such “for cause” protections in the statute establishing the Naval Academy Board of Visitors, as University of Texas Law Professor Steve Vladeck pointed out three weeks ago when Spicey pitched a hissyfit over being asked to resign.
Plenty of statutes create terms for officers appointed by the President, e.g., a 10-year term for the Director of the FBI.
Unless the statute *also* includes removal protections, the officer still serves at the President's pleasure, and can be fired even before the term is up. pic.twitter.com/KcbikxJxHc
— Steve Vladeck (@steve_vladeck) September 8, 2021
Which is why you didn’t see Henry Kissinger and Madeleine Albright flip their shit when Trump booted them off the Defense Policy Board in November, two years into their four year terms. That was part of a spate of dismissals and replacements that saw Andrew Giuliani nominated to the board of the Holocaust Museum, Hope Hicks and Sarah Huckabee Sanders placed on the body overseeing Fulbright Scholarships, and Lee Greenwood installed on the Kennedy Center board.
Which is only slightly more ridiculous than this lawsuit over the Naval Academy Board of Visitors, i.e. as useful as a screen door on a submarine.
But Spicey’s gotta shake his maracas for his supper, so here we are.
Spicer v. Biden [Docket via Court Listener]
Elizabeth Dye lives in Baltimore where she writes about law and politics.