President Joe Biden earlier this month quietly fired two presidential appointees from the Trump administration who had sued the Department of Education for refusing to deliver their signed presidential commissions.
The two men, economics professor Steve Hanke and law professor John Yoo, were appointed by then-President Donald Trump to the National Board for Education Sciences (NBES) when he signed their respective commissions in December 2020. Hanke is at Johns Hopkins University in Baltimore and Yoo is at the University of California–Berkeley.
The appointees stayed in touch with the department about the paperwork when the Trump administration was in power and after the Biden administration took office. However, when they began to press for their commissions to be delivered, the Biden-controlled agency stopped communicating with them, according to their lawyers at Pacific Legal Foundation (PLF), a Sacramento, California-based national public interest law firm.
The appointees argued that the department failed to acknowledge the validity of the appointments and made it impossible for them to fulfill their responsibilities as members of NBES, an independent board that advises officials within the Education Department on research and funding priorities. The board also performs an oversight function, advising the director of the Institute for Education Sciences. The institute is an independent, nonpartisan arm of the department that evaluates and provides funding for education research.
The Education Sciences Reform Act requires that the board meet at least three times a year and produce an oversight report to both Congress and the secretary of education. The report is due annually on July 1—yet the department had refused to call a meeting.
The Biden administration’s failure to call a meeting, as well as its continuing refusal to deliver the commissions, prompted Hanke and Yoo to sue Education Secretary Miguel Cardona on July 15 in U.S. District Court for the District of Columbia. The lawsuit is ongoing, and Cardona is required to file a response with the court by Sept. 24.
The appointees argue that even though the commissions weren’t delivered to them, they still possess what lawyers call a vested legal right to the delivery of their commissions, even after the election of a new president. This principle was included in the Supreme Court’s ruling in Marbury v. Madison (1803), which established the principle of judicial review, which is the power of federal courts to declare legislative and executive acts unconstitutional.
PLF attorney Jessica Thompson told The Epoch Times that even though no president had ever before fired NBES members appointed by a previous administration, the Biden White House delivered an ultimatum in the form of letters to both men on Sept. 2.
The letters, from Catherine M. Russell, the director of the White House Office of Presidential Personnel, asked the men to quit NBES voluntarily by close of business that day.
“Should we not receive your resignation, your position with the Board will be terminated effective 6:00 pm tonight,” Russell wrote.
The ultimatum letters constitute a legal admission that Hanke and Yoo were appointed by Trump, Thompson said.
The fact that the Trump appointees were fired on Sept. 2 “means that they were legally appointed and that they should have been able to serve in those positions for the past nine months.”
“If they weren’t legally appointed, there would be no need to ask them to resign or to fire them,” the attorney told The Epoch Times. “He could just go ahead and appoint the new people that he would like to serve on the board.”
Biden also could have sent out a letter saying his administration refused to recognize the appointments by Trump, but he didn’t do that, she said.
“It’s a bit petty that the Department of Education has continued to refuse to send over the commissions,” Thompson said.
“I believe that we’ve already established and proved the key point that we were trying to advance through this lawsuit, which is that appointment by the president, even if it’s from the prior administration, is valid once the president signs that commission.”
She said she accepts that Biden enjoys the legal prerogative to remove her clients from the NBES but those clients still want to take physical possession of the paper commissions signed by Trump.
“It’s an honor to be appointed by the president and to receive such a commission and our clients and other members [of the board] were excited to serve the country in this way. And so these commissions mean something to them, and they’re hopeful that they can still obtain them.”
Department of Education officials didn’t immediately respond to a request by The Epoch Times for comment.
This article by Matthew Vadum appeared Sept. 16, 2021, in The Epoch Times.