Conservative Group Challenges Biden Administration Over Military Academy Power Grab

By Timothy Sandefur

Joining forces with renowned legal scholar Richard A. Epstein, the Goldwater Institute filed a petition in the U.S. Supreme Court this week challenging the Biden Administration’s illegal firing of several members of the committees that oversee America’s military academies.

These committees—known as Boards of Visitors—are responsible for reviewing the effectiveness of West Point, the Naval Academy, and the Air Force Academy, and writing recommendations for Congress and the president to improve these important centers of learning. They don’t work for the president; they have no enforcement powers, and are simply advisory—and for that very reason, federal law gives the members of these boards three-year terms of office. The law doesn’t allow the president to remove any board member.

But upon assuming office in January 2021, President Biden began firing members of these boards and other advisory agencies who had been appointed by President Trump. What’s more, the Biden Administration announced plans to establish so-called “subcommittees” within these boards, which would eventually take over most of the boards’ responsibilities, even though the subcommittees aren’t staffed by members of the boards.

In other words, the Biden Administration is seeking to radically transform how these agencies work. But that’s illegal, because under the Federal Advisory Committee Act, boards and other groups are supposed to be insulated from presidential influence. They’re purposely given three-year terms of office to ensure that they can offer their true recommendations instead of simply working as “yes-men” for the President. By removing the Trump Administration-appointed board members, the Biden Administration is undermining a system that’s worked well for some 70 years—and that, in the case of the military academies, was designed to preserve non-political, civilian control over the military.

The board members whom President Biden fired sued in federal court—but unfortunately, the court took so long to decide the case that by the time the judges issued a decision, their three-year terms of office had expired. So the court held that the lawsuit was “moot”—meaning there’s nothing the court can do.

As part of our American Freedom Network project, we joined up with Professor Epstein and former South Carolina Senator Mike Rose to ask the U.S. Supreme Court to intervene. We argue that not only should the judges’ delay in deciding the case not deprive our clients of their right to sue, but that the Biden Administration’s removal of appointees to the boards is dangerously illegal—a step toward politicization of the military and yet another example of the risks associated with the Administrative State.

Earlier this year, the court warned about the “fog of uncertainty” that results from laws that let an incoming president abruptly change the law by a mere administrative order. These boards were designed to prevent that from happening, by denying the president the power to remove their members. Yet the Biden Administration chose to ignore those rules and effectively subordinate the boards to presidential dictate—which was exactly what the law does not allow.

You can read our petition here and learn more about the case in Prof. Epstein’s article here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.