A federal court's novel proposal to rein in Trump's power grab
is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
Federal civil servants are supposed to enjoy robust protections against being fired or demoted for political reasons. But President Donald Trump has effectively stripped them of these protections by neutralizing the federal agencies that implement these safeguards.
An agency known as the Merit Systems Protection Board (MSPB) hears civil servants' claims that a 'government employer discriminated against them, retaliated against them for whistleblowing, violated protections for veterans, or otherwise subjected them to an unlawful adverse employment action or prohibited personnel practice,' as a federal appeals court explained in an opinion on Tuesday. But the three-member board currently lacks the quorum it needs to operate because Trump fired two of the members.
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Trump also fired Hampton Dellinger, who until recently served as the special counsel of the United States, a role that investigates alleged violations of federal civil service protections and brings related cases to the MSPB. Trump recently nominated Paul Ingrassia, a far-right podcaster and recent law school graduate to replace Dellinger.
The upshot of these firings is that no one in the government is able to enforce laws and regulations protecting civil servants. As Dellinger noted in an interview, the morning before a federal appeals court determined that Trump could fire him, he'd 'been able to get 6,000 newly hired federal employees back on the job,' and was working to get 'all probationary employees put back on the job [after] their unlawful firing' by the Department of Government Efficiency and other Trump administration efforts to cull the federal workforce.
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These and other efforts to reinstate illegally fired federal workers are on hold, and may not resume until Trump leaves office.
Which brings us to the US Court of Appeals for the Fourth Circuit's decision in National Association of Immigration Judges v. Owen, which proposes an innovative solution to this problem.
As the Owen opinion notes, the Supreme Court has held that the MSPB process is the only process a federal worker can use if they believe they've been fired in violation of federal civil service laws. So if that process is shut down, the worker is out of luck.
But the Fourth Circuit's Owen opinion argues that this 'conclusion can only be true…when the statute functions as Congress intended.' That is, if the MSPB and the special counsel are unable to 'fulfill their roles prescribed by' federal law, then the courts should pick up the slack and start hearing cases brought by illegally fired civil servants.
For procedural reasons, the Fourth Circuit's decision will not take effect right away — the court sent the case back down to a trial judge to 'conduct a factual inquiry' into whether the MSPB continues to function. And, even after that inquiry is complete, the Trump administration is likely to appeal the Fourth Circuit's decision to the Supreme Court if it wants to keep civil service protections on ice.
If the justices agree with the circuit court, however, that will close a legal loophole that has left federal civil servants unprotected by laws that are still very much on the books. And it will cure a problem that the Supreme Court bears much of the blame for creating.
The 'unitary executive,' or why the Supreme Court is to blame for the loss of civil service protections
Federal law provides that Dellinger could 'be removed by the President only for inefficiency, neglect of duty, or malfeasance in office,' and members of the MSPB enjoy similar protections against being fired. Trump's decision to fire these officials was illegal under these laws.
But a federal appeals court nonetheless permitted Trump to fire Dellinger, and the Supreme Court recently backed Trump's decision to fire the MSPB members as well. The reason is a legal theory known as the 'unitary executive,' which is popular among Republican legal scholars, and especially among the six Republicans that control the Supreme Court.
If you want to know all the details of this theory, I can point you to three different explainers I've written on the unitary executive. The short explanation is that the unitary executive theory claims that the president must have the power to fire top political appointees charged with executing federal laws – including officials who execute laws protecting civil servants from illegal firings.
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But the Supreme Court has never claimed that the unitary executive permits the president to fire any federal worker regardless of whether Congress has protected them or not. In a seminal opinion laying out the unitary executive theory, for example, Justice Antonin Scalia argued that the president must have the power to remove 'principal officers' — high-ranking officials like Dellinger who must be nominated by the president and confirmed by the Senate. Under Scalia's approach, lower-ranking government workers may still be given some protection.
The Fourth Circuit cannot override the Supreme Court's decision to embrace the unitary executive theory. But the Owen opinion essentially tries to police the line drawn by Scalia. The Supreme Court has given Trump the power to fire some high-ranking officials, but he shouldn't be able to use that power as a back door to eliminate job protections for all civil servants.
The Fourth Circuit suggests that the federal law which simultaneously gave the MSPB exclusive authority over civil service disputes, while also protecting MSPB members from being fired for political reasons, must be read as a package. Congress, this argument goes, would not have agreed to shunt all civil service disputes to the MSPB if it had known that the Supreme Court would strip the MSPB of its independence. And so, if the MSPB loses its independence, it must also lose its exclusive authority over civil service disputes — and federal courts must regain the power to hear those cases.
It remains to be seen whether this argument persuades a Republican Supreme Court — all three of the Fourth Circuit judges who decided the Owen case are Democrats, and two are Biden appointees. But the Fourth Circuit's reasoning closely resembles the kind of inquiry that courts frequently engage in when a federal law is struck down.
When a court declares a provision of federal law unconstitutional, it often needs to ask whether other parts of the law should fall along with the unconstitutional provision, an inquiry known as 'severability.' Often, this severability analysis asks which hypothetical law Congress would have enacted if it had known that the one provision is invalid.
The Fourth Circuit's decision in Owen is essentially a severability opinion. It takes as a given the Supreme Court's conclusion that laws protecting Dellinger and the MSPB members from being fired are unconstitutional, then asks which law Congress would have enacted if it had known that it could not protect MSPB members from political reprisal. The Fourth Circuit's conclusion is that, if Congress had known that MSPB members cannot be politically independent, then it would not have given them exclusive authority over civil service disputes.
If the Supreme Court permits Trump to neutralize the MSPB, that would fundamentally change how the government functions
The idea that civil servants should be hired based on merit and insulated from political pressure is hardly new. The first law protecting civil servants, the Pendleton Civil Service Reform Act, which President Chester A. Arthur signed into law in 1883.
Laws like the Pendleton Act do more than protect civil servants who, say, resist pressure to deny government services to the president's enemies. They also make it possible for top government officials to actually do their jobs.
Before the Pendleton Act, federal jobs were typically awarded as patronage — so when a Democratic administration took office, the Republicans who occupied most federal jobs would be fired and replaced by Democrats. This was obviously quite disruptive, and it made it difficult for the government to hire highly specialized workers. Why would someone go to the trouble of earning an economics degree and becoming an expert on federal monetary policy, if they knew that their job in the Treasury Department would disappear the minute their party lost an election?
Meanwhile, the task of filling all of these patronage jobs overwhelmed new presidents. As Candice Millard wrote in a 2011 biography of President James A. Garfield, the last president elected before the Pendleton Act, when Garfield took office, a line of job seekers began to form outside the White House 'before he even sat down to breakfast.' By the time Garfield had eaten, this line 'snaked down the front walk, out the gate, and onto Pennsylvania Avenue.'
Garfield was assassinated by a disgruntled job seeker, a fact that likely helped build political support for the Pendleton Act.
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