Members of the U.S. Postal Service’s board of governors risked losing their jobs if the agency persevered with ending Saturday mail delivery following passage of a final fiscal 2013 spending bill.
That was the warning delivered by an outside law firm April 5–four days before the board pulled the plug on the plan.
Proceeding with five-day mail delivery “would entail a number of risks,” Jeffrey Bucholtz, a partner with King & Spalding, wrote in a 17-page opinion prepared for the Postal Service’s legal department. “First, violating a federal law would likely supply cause for the President to remove the Governors.”
While the Supreme Court has never precisely defined the grounds for removal, Bucholtz continued, “it has said that the good-cause standard enables the President to ensure that an independent officer ‘is competently performing his or her statutory responsibilities in a manner that comports with’ applicable legislation.”
The odds of successfully moving ahead with five-day delivery faced other possible roadblocks, he added, including a legal challenge from the comptroller general and other lawsuits that could spring up around the country. Although judges could rule either way on such cases, he said, “the Postal Service would have to run the table and win every case in every court.”
The memo, marked “PRIVILEGED AND CONFIDENTIAL,” casts new context on the board’s about-face on five-day delivery. In last month’s statement announcing that it was halting implementation of the new schedule, the panel, chaired by Mickey Barnett, a lawyer and former New Mexico state senator, didn’t reference the removal threat. Whether that factored into its decision is unclear.
A seat on the board carries real power over the operations of an enterprise that affects virtually every American. But the pay is $30,000 annually plus expenses, a relatively modest amount by Washington standards for what in recent years has become an increasingly time-consuming job.
In a brief interview Friday, Barnett said the removal risk had no effect on his stance. “My term’s up at the end of December,” Barnett said following the board’s public meeting on release of the Postal Service’s second quarter financial results. Speaking on behalf of the board, Postal Service spokesman Dave Partenheimer had previously pointed back to last month’s statement. There, the board said that Congress left it no choice but to drop the plan for now and that it didn’t want to unduly burden postal customers with “ongoing uncertainties.”
The memo was one of two that Bucholtz prepared on the five-day delivery question at a cost to the Postal Service of about $51,000. The central issue was whether a decades-old congressional ban on curtailing mail delivery days still applied under the stop-gap spending measures known as continuing resolutions.
Under the CR that was in place in February when the Postal Service announced plans to end Saturday mail service with projected savings of $2 billion per year, Bucholtz had opined in a Feb. 28 memo that the agency could legally proceed. It was a whole different story under the full-year CR signed in late March. That measure did incorporate the ban, he said in the April 5 memo. As an independent agency, Bucholtz said, “the Postal Service should tread carefully in the highly controversial area of potential open disobedience of a federal statute.”
“Without support from Congress or the President, efforts to avoid compliance with enacted law are not likely to succeed.”
Of course, the Postal Service, citing a lack of money, has twice flouted a separate legal requirement that it pay about $5.5 billion annually into a fund for future retiree health care. Those defaults have generated little concern from politicians. At an April 17 congressional hearing, they also helped prompt the following frank exchange between Barnett and Rep. Darrell Issa, R-Calif., who chairs the House Oversight and Government Reform Committee, according to a transcript.
Issa: “You obey a law that costs you $2 billion and you ignore a law that says you owe us $5.5 billion a year and you’ve done it for two years. Why would you pick one law to obey, that cost — you know, that you choose to obey, that actually costs you $2 billion? Where’s the fiduciary balance there? If you’re going to break a law, why is that the law that you broke? Or didn’t break?”
Barnett: “Mr. Chairman, thanks for that question, because I, we do have a reason. The board has discussed it extensively. The real problem with the going from six to five-day, knowing it will be challenged in court and not knowing what the result would be, is the tens of thousand dollars that many, many businesses would have to implement in software updates and changes in their procedures. It also involves approximately 23,000 employees that would be directly affected . . .”
[Post updated Friday, May 10, with Barnett comments]