Happy New Year from the New York Analysis of Policy & Government

Post author By Frank V. Vernuccio, Jr.
Post date January 1, 2015

Can the Courts block President Trump from firing US Government Officials? Conclusion

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 […]