How to oust Louis DeJoy: A guide for nervous presidents
The postmaster general can't simply be fired, but he can be removed in other ways
The Post Office used to be one of the best-run and most popular agencies in the American government. But under the leadership of Postmaster General Louis DeJoy, on-time delivery has plummeted, wreaking havoc on both individuals and businesses. Now he is proposing sweeping changes that will make service both worse and much more expensive. This is supposedly meant to address a substantial operating deficit, but it could very easily lead to a death spiral, as the worse service causes customers to flee to private shippers, cutting revenue further. That may even be intentional — as John Nichols argues at The Nation, it all smells like the start of a plan for privatizing the agency entirely.
President Biden must get rid of DeJoy and replace him with someone who can undo the damage to the Post Office. Doing so won't be as simple as firing a Cabinet secretary, but it is a matter of vital public interest — indeed, given the millions of prescription medications that the agency delivers every day, a matter of life and death.
Let me start with the legal background. The president is not allowed to simply fire the postmaster general, who is appointed by the USPS board of governors. (There are currently three vacancies on the board, as Biden's nominees have not yet been confirmed.) But pursuant to 39 U.S. Code § 202, he can fire members of the board "for cause," and the board can fire the postmaster general. In general, it's hard to think of a better cause for termination than appointing someone to lead an agency who proceeds to wreck that agency.
But specifically, the sentence about cause reads as follows: "The Governors shall not be representatives of specific interests using the Postal Service, and may be removed only for cause." A later section says that the postmaster general "shall be a voting member of the Board." Wouldn't you know it, DeJoy (a longtime Trump friend and fundraiser) had a giant conflict of interest that directly violated this requirement. According to financial disclosure reports, he had a stake in XPO Logistics valued at between $30 million and $75 million when he took office — a company that not only has historically done a ton of business with the Post Office, but also saw its contracts with the agency roughly triple in size compared to previous years immediately after he became postmaster general.
Now, DeJoy did apparently divest his stake in XPO Logistics in October by giving it to his adult children. But as Citizens for Responsibility and Ethics in Washington explains, this looks very much like a sham divestment, because nothing is stopping his children from giving the assets right back to him later. (Afterwards the company continued to be awarded large Post Office contracts.)
In any case, one does not get a free pass on an instance of corruption just because one stopped doing it. This story would seem to suggest that Biden could remove DeJoy from the board, thereby rendering him ineligible to serve as postmaster general, and it surely implies on its face that the president can remove other board members for ignoring this blatant self-dealing. This isn't just some legal technicality either. The head of an agency awarding big contracts to a company in which he has a massive personal stake is basically the dictionary definition of corruption. Public officials are supposed to represent the public interest, which is the entire point of stipulating that members of the board aren't allowed to have business relating to the Post Office in the first place. DeJoy was stuffing his own pockets with public money for at least several months.
Indeed, DeJoy's conflict also might violate federal anti-corruption law. He supposedly got his XPO Logistics stake cleared by federal ethics officials, but that happened under Trump and was therefore likely not above board. At a minimum, the attorney general would be wholly justified in opening an investigation.
If Biden did fire the Trump appointees on the board of governors, they would likely sue and might get the decision stayed by federal courts. But then again, the Supreme Court ruled a couple years ago that Trump was allowed to sack the head of the Consumer Financial Protection Bureau in open defiance of a "for cause" protection clause. Despite what some legal experts argue, whether Biden is "legally" allowed to sack board members will ultimately turn on how big of hypocrites the conservatives on the court are willing to be when they are inventing law out of whole cloth.
More broadly, Alex Pareene argues at The New Republic, Democrats in Congress could play a role here as well. Congress wrote the law setting up the agency's current structure, and it could change it at any time, if Democrats reform the filibuster. (This would be a good opportunity to modernize the Post Office, which is badly needed.) They could also hold hearings, dragging DeJoy up to answer about why he is giving a company he partly owns so much money and why the agency is in such dire straits.
If the Trump administration proved anything, it is that a determined president can accomplish a lot. As Pareene notes, he trampled over existing legal precedent, kept acting officials in their posts in violation of the law, casually ignored the Emoluments Clause of the Constitution, and on and on. It would almost certainly be possible to chase DeJoy out of office with some combination of investigations, board confirmations and replacements, and public pressure, without even coming close to breaking the law as Trump did.
It appears unlikely that DeJoy will be removed even if Biden's three nominees are all confirmed. That would give the Democrats on the board a majority, but as David Dayen points out at The American Prospect, the two existing Democrats on it (Chairman Ron Bloom and Donald Moak, who were both appointed by Trump) have signed on in support of DeJoy's plan. If Americans are to have the same quality of mail service that we enjoyed as recently as 2019, President Biden is going to have to take action.