Can the Courts block President Trump from firing US Government Officials?
Isn’t Donald Trump the “boss” of Executive Branch employees? Can’t he fire and hire these workers at will?
As with so many legal questions, the answer is – it depends.
As far as Donald Trump is concerned, he has the unequivocal power to control those employed by the Executive Branch. By his Executive Order “Restoring Accountability to Policy-Influencing Positions Within the Federal Workforce,” the President asserts that “Article II of the United States Constitution vests the President with the sole and exclusive authority over the executive branch, including the authority to manage the Federal workforce to ensure effective execution of Federal law.”
President Trump explains that “[a] critical aspect of this executive function is the responsibility to maintain professionalism and accountability within the civil service. This accountability is sorely lacking today. Only 41 percent of civil service supervisors are confident that they can remove an employee who engaged in insubordination or serious misconduct. Even fewer supervisors –- 26 percent — are confident that they can remove an employee for poor performance.”
To remedy this situation, the President asserts that “[a]ccountability is essential for all Federal employees, but it is especially important for those who are in policy-influencing positions. These personnel are entrusted to shape and implement actions that have a significant impact on all Americans. Any power they have is delegated by the President, and they must be accountable to the President, who is the only member of the executive branch, other than the Vice President, elected and directly accountable to the American people. In recent years, however, there have been numerous and well-documented cases of career Federal employees resisting and undermining the policies and directives of their executive leadership. Principles of good administration, therefore, necessitate action to restore accountability to the career civil service, beginning with positions of a confidential, policy-determining, policy-making, or policy-advocating character.”
Therefore, “[p]rinciples of good administration…necessitate action to restore accountability to the career civil service, beginning with positions of a confidential, policy-determining, policy-making, or policy-advocating character.”
But what exactly does Article II of the US Constitution say? “[The President shall] have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Court of Law, or in the Heads of Departments.”
It wasn’t until 1926 that the US Supreme Court decided affirmatively what authority Article II gives the President over the dismissal of Executive Branch employees, in the case of Myers v. United States. When a postmaster challenged his removal from office, Chief Justice (and former US President) William Howard Taft, took the opportunity to state that “Article II grants to the President the executive power of the Government, i. e. , the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed.”
Chief Justice Taft seemed to believe this power to be fairly extensive, writing that “[t]here is nothing in the Constitution which permits a distinction between the removal of the head of a department or a bureau, when he discharges a political duty of the President or exercises his discretion, and the removal of executive officers engaged in the discharge of their other normal duties. The imperative reasons requiring an unrestricted power to remove the most important of his subordinates in their most important duties must, therefore, control the interpretation of the Constitution as to all appointed by him.”
According to Justia, “the result of [the Myers decision] was a rule that, as was immediately pointed out, exposed the so-called ‘independent agencies’ – the Interstate Commerce Commission, the Federal Trade Commission, and the like – to presidential domination.”
This “loophole” led to the 1935 Supreme Court decision in Humphrey’s Executor v. United States. Humphrey was a member of the Federal Trade Commission, who was removed from his post by President Franklin Roosevelt over a difference of opinion regarding public policy. In distinguishing the Myers case, Justice George Sutherland wrote that ‘[a] postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an office is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aide he is. . . . It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.’”
However, a member of an independent agency, such as the Federal Trade Commission, was entitled to different treatment by the Chief Executive. “The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute,” Justice Sutherland wrote. “Such a body cannot in any proper sense be characterized as an arm or eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control…We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named, [the Interstate Commerce Commission, the Federal Trade Commission, the Court of Claims]…”
The reason to treat an appointed member of an independent agency differently than one appointed to a department of the Executive branch lies in the separation of powers enumerated in the US Constitution. The Court noted that “[t]he authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter’s will. . . .”
Therefore, “[w]hether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office…we hold that no removal can be made during the prescribed term for which the officer [of an independent agency] is appointed, except for one or more of the causes named in the applicable statute.”
The distinction between these two cases and the status of the affected employee becomes clear. If you are an employee of the Parks Department, which is a branch of the Department of the Interior, or if you work for Veteran’s Affairs, which is a Cabinet-level department of the Executive branch, or even if you are an inspector general for the Department of Health and Human Services, under the authority of the Myers case, you can be removed from office by the President.
However, if you are an appointed member of the Federal Trade Commission or the head of the Office of the Special Counsel, then depending on the language of the statute Congress enacted to create your office, you can only be removed for “inefficiency, neglect of duty or malfeasance in office.”
Humphrey’s Executor has recently been cited as the underlying basis for a temporary restraining order (TRO) granted to Hampton Dellinger, a Special Counsel of the Office of Special Counsel, who received a notice of termination from the Director of the Presidential Personnel Office. Dellinger sought an order reversing that termination from the District Court in Washington, DC.
In granting his application, the lower court noted that “[t]he Office of Special Counsel is an independent agency originally created by the Civil Service Reform Act of 1978… [to] ‘safeguard’ federal civil service employees ‘who “blow the whistle” on illegal or improper official conduct.’” (Citations omitted.) As such, “[t]he effort by the White House to terminate the Special Counsel without identifying any cause plainly contravenes the statute, which states, ‘[t]he Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.’ 5 U.S.C. § 1211(b). This language expresses Congress’s clear intent to ensure the independence of the Special Counsel and insulate his work from being buffeted by the winds of political change.”
Citing to the US Supreme Court, the District Court stated that the high court has previously upheld “its observation in Humphrey’s Executor…that Congress’s ability to impose removal restrictions ‘will depend upon the character of the office’…[h]ere we have a statute that incorporates Congress’s [intention to place] restrictions on removal.” Thus, Dellinger’s request for a restraining order was granted, and he was not removed from office.
When the DC Court of Appeals refused to intervene, the Trump Administration turned to the US Supreme Court – who also refused to intervene.
“[T]his Court typically does not have appellate jurisdiction over TROs,” the Court wrote. “In light of the foregoing, the application to vacate the order of the United States District Court…is held in abeyance.”
In other words, the Supreme Court punted, awaiting further action by the District Court, who planned to hold a hearing to give both sides a full opportunity to be heard. Yet, not all the Justices wanted to wait for the District Court’s fact finding.
“The [District] court effectively commanded the President and other Executive Branch officials to recognize and work with someone whom the President sought to remove from office,” Justice Neil Gorsuch writes. “To be sure, throughout the Nation’s history, various presidentially appointed officials like Mr. Dellinger have contested their removal – and courts have heard and passed on their claims. But those officials have generally sought remedies like backpay, not injunctive relief like reinstatement.”
On this basis, Justice Gorsuch would have vacated the TRO and remanded the case to consider what other remedies were available to Bellinger other than reinstatement.
There will be other government officials who Donald Trump will seek to remove from office, and some of those persons will be employed by “independent agencies,” and will be subject to statutory requirements controlling the basis for their removal. This will certainly serve as an impediment to their removal from office.
But in the meantime, the President is free to remove whatever other employees he chooses from their jobs.
Stay tuned – this battle has only just begun.
Judge John Wilson (ret.) served on the bench in NYC