Given these clear judicial smoke signals, both on and off the bench, the Biden administration would be on solid legal and constitutional ground if it sought to remove the most troubling Trump midnight appointees within the executive branch. In the case of Simington, the argument for removal is particularly easy to make because the Federal Communications Act does not expressly confer good-cause protection on members of the FCC (though as a historical matter, presidents have treated members of independent agencies as enjoying good cause removal protection, even if an agency’s enabling act does not expressly provide it). What’s more, taking this step would prevent gridlock at this critical agency regardless of whether the Senate considers Biden FCC nominees on a timely basis.
Many of these nominees hold odd, even bizarre, policy positions that are clearly opposed to the Biden administration’s policies. Judy Shelton, for example, a Trump nominee to the Federal Reserve Board, has publicly advocated a return to the gold standard. If the Federal Reserve Board were to embrace her position, it would hobble the agency’s ability to use monetary policy to help limit the effect of shocks to the national and global financial systems. Shelton’s nomination currently remains pending before the Senate; despite failing to secure a majority vote last month (with two GOP senators absent due to Covid-19), Senator McConnell has preserved his ability to call up her nomination again before President-elect Biden is inaugurated.