Trump Tests Long-Held Protections in Broad Quest to Fire Workers

The Trump administration is expanding its push to empower the president to fire federal employees at will despite their legal protections against being removed without cause.

Even as President Donald Trump’s quest to freely ax independent agency leaders has reached the US Supreme Court, his administration is also arguing for constitutional firing authority to justify its dismissal of certain career government workers, including agency judges and attorneys.

While the administration’s bid to enhance presidential authority to remove agency leadership appears to have a clear path to victory, claiming the same type of power over career workers seems to have less legal support, law professors said.

“It would be a substantial stretch to gut civil service protections, even in part,” said Harold Krent, a professor at Chicago-Kent College of Law who authored a book on presidential power.

Turbocharging presidential firing power is one part of Trump’s campaign to control—and dismantle—the administrative state. His administration has also claimed dominion over independent agencies, declared government workers’ labor rights null, fired and bought out rafts of employees, and tried to unilaterally shutter agencies.

The administration’s efforts to grow its firing power also include presidential orders and regulatory action to reclassify career federal employees so that they’re easier to remove.

But where rules and decrees can be reversed, the position the administration is advancing in litigation—that the Constitution grants the president removal power that overcomes any law—has the potential to irreversibly shift power from workers to the White House.

Agencies are raising constitutional arguments in response to federal employee challenges to their terminations at the Merit Systems Protection Board. Administrative judges initially handle MSPB cases, which can then be litigated before the board, the US Court of Appeals for the Federal Circuit, and finally the Supreme Court.

If the Supreme Court agrees that the president’s constitutional removal authority nullifies civil service protections, “as a structural matter, you can never afford those protections,” said Nicholas Handler, an administrative law professor at Texas A&M University.

Unitary Executive

The Trump administration’s claim to firing power stems from the view that Article II of the Constitution grants executive power to the president alone, an interpretation known as the unitary executive theory. Officials who exert executive power on the president’s behalf must be directly answerable to the president to maintain democratic accountability, according to the theory.

The administration has invoked Article II to defend the removal of career federal employees in approximately 60 to 70 cases at the MSPB, which involve terminations at the Justice Department and the Department of Homeland Security, said James Eisenmann, an attorney at Alden Law Group PLLC who represents some of those fired workers.

DOJ has argued that a class of career employees known as “inferior officers”—a designation that includes agency judges—are subject to at-will termination. The department is trying to expand that category by asserting that managers in the Senior Executive Service qualify as inferior officers.

The Justice Department has also asserted that workers can be vulnerable to dismissal for any or no reason based on their activities. It said in a memo released in late September that Article II permits no-cause removal of employees involved with “core executive functions such as engaging in criminal prosecution.”

DOJ offered no justification other than Article II authority when it fired a federal prosecutor, a senior ethics attorney, and a public affairs specialist, according to termination notices cited in a lawsuit.

Assessing Constitutionality

The administration is pushing the MSPB to consider whether Article II overrides removal protections in the face of early setbacks.

The Justice Department’s arguments essentially asked the MSPB to invalidate part of a civil service law, but the board has “long recognized that administrative agencies are without authority to determine the constitutionality of statutes,” Chief Administrative Judge Jeremiah Cassidy said in an August decision in favor of a fired immigration judge.

The Supreme Court’s 2012 opinion in Elgin v. Department of the Treasury makes clear that DOJ can raise its constitutional arguments during judicial review of the MSPB’s ruling in the case, Cassidy said.

The Justice Department later told MSPB judges in an Office of Legal Counsel memo that they must consider the administration’s constitutional arguments.

But DOJ ordering agency judges to consider arguments it made as the defendant in firing cases reveals a problem with the unitary executive theory, said Christine Chabot, a Marquette University law professor.

“It doesn’t work well when applied to agency adjudication because we think of judges as independent and impartial,” Chabot said. “The idea of the administration putting political pressure on judges to adopt their position goes against that.”

Precedential Landscape

Advocates for the unitary executive theory have notched a series of wins in presidential firing authority cases at the Supreme Court since 2010. The conservative justices seem poised to eviscerate the court’s 1935 decision allowing job shields for agency leadership, if they don’t completely strike down that ruling.

However, the Roberts court hasn’t similarly chipped away at precedents supporting civil service protections for career government workers, legal scholars said.

The Supreme Court’s 2020 decision in Seila Law v. CFPB, for example, recognized decisions from 1886 and 1988 that approved of for-cause removal shields for inferior officers with narrowly defined duties.

Seila Law also emphasized that Myers v. US—a 1926 decision authored by William Howard Taft, who served as chief justice after his presidency—first set forth the president’s broad removal authority.

But even Taft didn’t believe Article II allowed the president to dismiss inferior officers at will, said Jane Manners, a law professor and legal historian at Fordham University.

“His argument in Myers v. US, which is still the touchstone for proponents of an unfettered, inherent presidential removal power, explicitly carved out the civil service, which Taft liked,” she said.

The Trump administration’s argument “goes far beyond the court’s most emphatic assertion of an Article II removal authority,” Manners said.