Defying
Legal Limits, Trump Firings Set Up Tests That Could Expand His Power
The prospect
of legal challenges to President Trump’s purges may be a feature, not a bug,
for adherents of sweeping presidential authority.
Charlie
Savage
By Charlie
Savage
Charlie
Savage writes about legal policy, including presidential power. He reported
from Washington.
Jan. 29,
2025
https://www.nytimes.com/2025/01/29/us/politics/trump-firings-officials-legal-test.html
President
Trump abruptly fired dozens of officials in the past few days — including
inspectors general, a member of the National Labor Relations Board and career
prosecutors — in ways that apparently violated federal laws, setting up the
possibility of lawsuits.
But the
prospect of getting dragged into court may be exactly what Mr. Trump’s lawyers
are hoping for. There is a risk that judges may determine that some of the
dismissals were illegal, but any rulings in the president’s favor would
establish precedents that would expand presidential power to control the
federal government.
Some legal
experts say the purges underway appear to be custom-made opportunities for the
Supreme Court’s Republican-appointed majority to strike down the statutes any
legal challenges would be based on, furthering its trend in recent years of
expanding presidential authority.
“On one
level, this seems designed to invite courts to push back because much of it is
illegal and the overall message is a boundless view of executive power,” said
Jack Goldsmith, a Harvard law professor who led the Justice Department’s Office
of Legal Counsel in the Bush administration. “But really, they are clearly
setting up test cases.”
Five of the
nine Supreme Court justices worked as executive branch lawyers during the
Reagan and George W. Bush administrations. Their legal teams were both defined
by an expansive view of executive power, including developing theories of the
Constitution that would invalidate congressional restrictions on the White
House.
The Reagan
legal team, for example, created the so-called unitary executive theory. It
holds that the president must wield exclusive control of the executive branch,
so laws passed by Congress that give independence to other officials are
unconstitutional. A key application is that presidents must be able to fire any
executive branch official at will.
In recent
years, the Supreme Court’s majority — led by Chief Justice John G. Roberts Jr.,
who worked in the White House Counsel’s Office under the Reagan administration
— has pushed that idea.
The theory
has helped inform rulings like striking down a law that shielded the director
of the Consumer Financial Protection Bureau and declaring, in granting
presidents broad immunity, that Mr. Trump’s threat to fire the acting attorney
general in 2020 could not even be discussed in court as evidence in a criminal
case.
Against that
backdrop, a series of Mr. Trump’s dismissals — and an executive order making it
easier to summarily fire certain career officials — could give the court’s
majority an opportunity to strike down additional statutes that restrict
presidential removal powers.
The early
days of Mr. Trump’s return to office show that he has reveled in a maximalist
show of force, and his firings have come in the teeth of various federal laws.
For example,
when Mr. Trump conducted a mass purge of more than a dozen inspectors general
on Friday, he defied a statute that requires giving a written notice to
Congress with a “substantive rationale, including detailed and case-specific
reasons” at least 30 days in advance.
In a letter
to Mr. Trump on Tuesday, Senator Charles Grassley, Republican of Iowa and the
chairman of the Judiciary Committee, requested a detailed explanation of his
actions given that the president did not obey the statute’s notice requirement.
“While I.G.s
aren’t immune from committing acts requiring their removal, and they can be
removed by the president, the law must be followed,” the letter said, which was
also signed by the ranking Democrat on the panel, Senator Richard Durbin of
Illinois.
Several of
those officials have discussed filing a lawsuit seeking an injunction and a
declaration that their removals were illegal. But such a case would give the
Trump administration an opportunity to argue that the statute protecting
inspectors general is an unconstitutional constraint on the president’s powers.
Days after
the firings of inspectors general, Mr. Trump kneecapped at least three
independent agencies, the National Labor Relations Board, the Privacy and Civil
Liberties Oversight Board and the Equal Employment Opportunity Commission. By
firing Democratic members, he left each without enough members to legally act.
Gwynne
Wilcox, who was ousted from the National Labor Relations Board, has suggested
that she may challenge the move, saying, “Since this is unprecedented, and I
believe illegal, I want to see what my options are.”
The law
creating the labor board makes it independent of the White House in part by
restricting a president’s ability to fire its members at will, like ordinary
political appointees. It says, “Any member of the board may be removed by the
president, upon notice and hearing, for neglect of duty or malfeasance in
office, but for no other cause.”
Ms. Wilcox
received no such hearing and does not appear to be accused of any misconduct.
So a lawsuit seeking to vindicate the job protections Congress gave to the
position would raise the question of whether those statutory limits are
constitutional.
Any legal
fight over the firings at the Privacy and Civil Liberties Oversight Board and
the Equal Employment Opportunity Commission would be more complicated because
the statutes creating them do not explicitly limit a president’s ability to
eject its board members only to a cause like misconduct.
But there
has been a general understanding that such officials are also shielded by
implicit protections that allow for removal only for cause. For example, the
statute for another independent agency, the Securities and Exchange Commission,
also lacks such a clause, but in a 2010 case, the Supreme Court assumed,
without actually deciding, that it implicitly exists as a limit.
Any
challenge to the ousters at the privacy board and employment commission would
squarely raise the question of whether such implicit limits actually exist as a
restraint on the president’s removal powers — and if so, whether they are
constitutional.
Mr. Trump is
also testing legal protections for career federal workers that restrict the
ability of his political appointees to fire them at will and without a just
cause. Those include members of the Senior Executive Service, the upper echelon
of career employees, and members of the civil service. Both have a right to
hearings before the Merit Systems Protection Board and then to go to court.
Under one of
Mr. Trump’s executive orders, known as “Schedule F,” job protections
shielding tens of thousands of senior
career federal workers would be eliminated, making it easier to replace them
with loyalists. He issued a similar order at the end of his first term, but
President Joseph R. Biden Jr. took office and rescinded it.
The Trump
administration summarily fired more than a dozen Justice Department prosecutors
who had been assigned to help investigate Mr. Trump.
A memo to
the fired prosecutors from the acting attorney general, James McHenry,
suggested that perceived loyalty was a factor: “Given your significant role in
prosecuting the president, I do not believe that the leadership of the
department can trust you to assist in implementing the president’s agenda
faithfully,” he wrote.
As purported
legal authority for the firing, Mr. McHenry cited Mr. Trump’s constitutional
powers and “the laws of the United States,” while also pointing out that ousted
prosecutors could challenge their removal by appealing to the merit board.
Should any
one of them follow that advice, of course, that would set in motion yet another
legal test of Congress’s ability to impose checks and balances on the
presidency.
“We’re going
to find out a lot about Chief Justice Roberts’s ultimate commitments,”
Professor Goldsmith said.
Charlie
Savage writes about national security and legal policy. More about Charlie
Savage
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