The Supreme Court has cleared the way for the Trump administration to launch plans for mass firings and reorganisations at 19 federal agencies and departments while litigation continues.
The justices lifted a lower court order that temporarily blocked plans to lay off thousands of federal workers, including at the Centers for Disease Control and Prevention, the State Department and the Social Security Administration, because the administration did not first consult with Congress.
In response to other emergency requests from the Trump administration, the Supreme Court has repeatedly sided with the administration’s efforts to upend the federal bureaucracy. The court’s conservative majority has permitted Trump officials to fire independent regulators and thousands of probationary workers while legal challenges play out in the lower courts.
But in this case, two of the liberal justices – Elena Kagan and Sonia Sotomayor – appeared to have joined the conservatives in allowing the administration to plan reorganisations and reductions in the workforce. Sotomayor said it was because the administration had directed agencies to operate “consistent with applicable law”.
“The plans themselves are not before this Court, at this stage, and we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law,” wrote Sotomayor, adding that the lower-court judge is still free to assess the legality of the administration’s plans.
In their brief unsigned order, the majority said, “we express no view on the legality of any” agency plans for restructuring or shrinking of the workforce and left open the possibility that the issue could return to the Supreme Court.
Only Justice Ketanji Brown Jackson noted her sharp disagreement in a 15-page dissent.
She warned against serious harm that could come from allowing the administration to dramatically remake the federal government before determining whether its actions are legal.
“For some reason, this Court sees fit to step in now and release the President’s wrecking ball at the outset of this litigation,” Jackson wrote. “In my view, this decision is not only truly unfortunate but also hubristic and senseless.”
In February, President Donald Trump ordered federal agencies to plan for and carry out mass layoffs and reorganisations as part of his effort to shrink the federal workforce and to eliminate what he called “waste, bloat, and insularity”.
The nation’s largest union of federal workers, the American Federation of Government Employees (AFGE) – joined by 11 nonprofit organisations and six local governments in California, Texas and Illinois, among other places – filed suit, saying it was unlawful for the President to unilaterally dismantle federal agencies created by Congress.
Solicitor General D. John Sauer, the administration’s advocate at the Supreme Court, told the justices that Trump does not need special permission from Congress to exercise a core presidential power of overseeing federal agencies. The President’s order, he noted, directs agencies to comply with all relevant law in “streamlining their workforces”.
A federal judge in California temporarily halted Trump’s plans in May, saying the administration must partner on any mass reorganisation with Congress, which created, funds and provides direction to the agencies.
“Agencies may not conduct large-scale reorganisations and reductions in force in blatant disregard of Congress’ mandates,” US District Judge Susan Illston wrote in her ruling. “After dramatic staff reductions, these agencies will not be able to do what Congress has directed them to do.”
Nine presidents in both parties over the past 100 years have sought and obtained authority from Congress to reorganise the executive branch, Illston wrote. She noted that Presidents George W. Bush, Barack Obama and Trump in his first term asked Congress for agency reorganisation authority but did not receive it.
Trump officials “want the Court to either declare that nine Presidents and twenty-one Congresses did not properly understand the separation of powers, or ignore how the executive branch is implementing large-scale reductions in force and reorganisations”, Illston wrote. “The Court can do neither.”
Her opinion emphasised the potential impacts of the cuts on government services. At the Social Security Administration, where 7000 workers are targeted for layoffs, retirees have already reported long wait times to reach an agency representative on the phone, problems with the agency’s website and difficulty making in-person appointments. In the National Institute for Occupational Safety and Health office that researches health hazards faced by mineworkers, all but one of the 222 employees were targeted for layoffs.
Attorneys for the labour union and other challengers told the justices that the Supreme Court should not allow the “breakneck reorganisation of the federal government” on a truncated emergency timeline before the matter is thoroughly considered by the lower courts. Hundreds of thousands of federal employees will lose their jobs under the reorganisation, challengers said in court filings, adding that programmes and offices across the government will be abolished, agencies will be dramatically downsized from what Congress intended, and critical government services will be lost.
“If the courts ultimately deem the President to have overstepped his authority and intruded upon that of Congress, as a practical matter, there will be no way to go back in time to restore those agencies, functions, and services,” the challengers wrote. “Whatever one’s view on the proper size and scale of government, that vision may not be imposed by unilateral executive order, without engaging in the dialogue and cooperation with Congress that the Constitution requires and that Presidents have historically pursued.”
Sauer, the administration’s lawyer, said the challenge to the planned layoffs is premature and in any case must be handled first by an administrative process for civil servants through the Merit Systems Protection Board. In a different case, the Supreme Court in April allowed Trump to remove the head of that independent agency while litigation continues.
The Solicitor-General argued that Trump’s restructuring order is lawful because it directs agencies to ensure they do not eliminate any of the functions that are required by statutes passed by Congress.
Illston’s decision to block the layoffs, which was upheld by the US Court of Appeals for the 9th Circuit, has created confusion at agencies, Sauer wrote, and compelled the Government to “retain – at taxpayer expense – thousands of employees whose continuance in federal service the agencies deem not to be in the government and public interest".
Ann E. Marimow covers the Supreme Court for The Washington Post. She joined The Post in 2005, and has spent a decade writing about legal affairs and the federal judiciary.