During his first week or so in power, President Trump may have violated the law in firing several inspectors general, a member of the National Labor Relations Board and civil-servant prosecutors. Photon / Doug Mills, The New York Times
The prospect of legal challenges to President Trump’s purges may be a feature, not a bug, for adherents of sweeping presidential authority.
President Donald 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 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 favour would establish precedents that would expand presidential power to control the federal government.
Some legal experts say the purges under way 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 Roberts, who worked in the White House Counsel’s Office under the Reagan administration – has pushed that idea.
The theory has helped inform rulings including one striking down a law that shielded the director of the Consumer Financial Protection Bureau and declaring, in granting presidents broad immunity, that 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 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 Trump’s return to office show that he has revelled in a maximalist show of force, and his firings have come in the teeth of various federal laws.
For example, when Trump conducted a mass purge of more than a dozen inspectors general 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 Trump on Tuesday, Senator Chuck Grassley, R-Iowa, who chairs the Judiciary Committee, requested a detailed explanation of his actions given that the President did not obey the statute’s notice requirement.
“While IGs 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 firing the inspectors general, Trump kneecapped at least three independent agencies, the National Labour 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 labour 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”.
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 such as 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.
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 Trump’s executive orders, known as “Schedule F,” job protections shielding from 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 Joe Biden rescinded it.
The Trump administration summarily fired more than a dozen Justice Department prosecutors who had been assigned to help investigate 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, McHenry cited 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’ ultimate commitments,” Goldsmith said.
This article originally appeared in The New York Times.
Written by: Charlie Savage
Photographs by: Doug Mills and Eric Lee
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