Fired Black Board Members Push for Constitutional Accountability

Former independent agency officials who alleged they were fired because they’re Black are testing whether courts can countermand presidential dismissals even if the US Supreme Court kills job protections for agency officials.

Robert Primus, the former chair of the Surface Transportation Board, and Alvin Brown, a member of the National Transportation Safety Board, claimed in separate lawsuits that President Donald Trump violated their Fifth Amendment equal protection rights when he fired them.

While the Trump administration denied the terminations were racially biased, it also made a more fundamental argument that courts can’t second guess such firings for any reason, including to determine if they were unconstitutional.

The administration’s claim to unreviewable removal power goes beyond even the broadest reading of the unitary executive theory, which posits that presidents solely control the executive branch, said Jane Manners, a legal historian at Fordham University.

“The unitary executive theory does not say the president is beyond the Constitution,” she said.

Trump’s purge of dozens of Democratic officials across the administrative state triggered two Supreme Court cases—Trump v. Slaughter and Trump v. Cook—that will likely nullify job protections for leaders at all independent agencies except the Federal Reserve.

The administration’s defense against Primus and Brown’s Fifth Amendment claims could spark a third Trump termination case at the high court, said Christine Chabot, a constitutional and administrative law professor at Marquette University.

The arguments raise issues distinct from those on statutory job protections at issue in Slaughter and Cook, she said. Plus, courts endorsing the Trump administration’s position could have consequences for presidential behavior.

“Even if there was blatant discrimination—the president saying, ‘I am firing you because your race is X or your sex is X’—there would be no remedy in court for what would seem like clearly unconstitutional action by the president,” Chabot said. “That would be problematic.”

Focus on Race

Accusations of racism toward Black people have followed Trump for more than 50 years, going back to when the federal government sued him for alleged racial discrimination at his company’s housing developments. Trump settled that lawsuit and has denied allegations of racism.

Trump said he is “the least racist president you’ve had in a long time” earlier this year after facing criticism for reposting on his social media platform a depiction of President Barack Obama and first lady Michelle Obama largely condemned as racist.

Trump’s firing spree of approximately 30 Democratic independent agency heads and board members included eight Black officials. The White House said race played no role in those decisions.

“The only factor guiding the Trump administration’s personnel decisions is competence—lawful removals at the NTSB and STB are no different,” White House spokesperson Kush Desai said.

Primus and Brown were the only Black members of the STB and NTSB respectively, and they were the only Democratic members dismissed. That dynamic also played out when Gwynne Wilcox, a Black woman, was terminated from the National Labor Relations Board, while David Prouty, a white man, remained.

Trump fired roughly three-quarters of all Black members of independent agency boards, while he dumped about a quarter of their white counterparts, Primus and Brown argued in court filings.

The Justice Department asserted that the fired Black officials’ race discrimination claims are built on circumstantial allegations and should be thrown out.

The Trump administration’s motions to dismiss Primus and Browns’ bias claims are briefed and await a ruling from Judge Dabney Friedrich, a Trump appointee to the US District Court for the District of Columbia.

“It is critically important that the administration be held accountable to the Constitution,” said Catherine Carroll, an attorney with Democracy Forward Foundation, an advocacy group that represents both plaintiffs.

Adding Bias Claims

The fired Black officials originally accused Trump of violating their legal protections against at-will removal by axing them without cause.

After the Supreme Court permitted Trump to fire several agency board members who had similar legal protections, Primus and Brown amended their complaints to add the race discrimination allegations.

Friedrich granted the government’s request to stay the claims based on the board members’ job safeguards pending the high court’s ruling in Slaughter, while allowing the race bias claims to proceed.

The Trump administration and the fired officials disagree on what standard the judge should use to decide whether to dismiss the discrimination allegations, which hinges on whether they have a valid legal basis to proceed.

Primus and Brown argued that Friedrich should use the test from the Supreme Court’s 1973 decision in McDonnell Douglas Corp. v. Green. That precedent created a frequently used framework for employment bias that calls on plaintiffs to show an initial case and gives defendants an opportunity to rebut it.

The administration asserted that the proper standard is from the 1977 high court decision in Village of Arlington Heights v. Metropolitan Housing Development Corp., which dealt with claims of a racially biased zoning plan. That test calls for more “stark facts” showing discrimination than the fired board members alleged, it said.

The Supreme Court hasn’t addressed what legal framework to use for constitutional claims of discrimination, but lower courts typically use employment law as a model, said Pauline Kim, a Washington University School of Law professor who focuses on workplace law.

Village of Arlington Heights has been used to assess allegations of discriminatory government policies that affect groups of people, Kim said. It doesn’t make sense to veer away from the employment law model and use it for assessing bias in individual firing decisions.

The fired Black officials’ claims would certainly survive if Friedrich uses McDonnell Douglas, and should have a good shot if she opts for Village of Arlington, she said.

Friedrich is less likely to answer the broader constitutional question about court review of presidential firing decisions if she throws out the bias claims because they were too weak.

The cases are Primus v. Trump, D.D.C., No. 25-03521 and Brown v. Trump, D.D.C., No. 25-01764.