The Lawsuits Against A President’s Power To Fire Federal Officials

Since President Donald Trump reclaimed the executive branch in January, more than 50 lawsuits have been filed to halt his America-first efforts. These lawsuits present a variety of legal issues, from the constitutionality of Trump’s executive orders addressing birthright citizenship and transgender prisoners, to agencies’ ability to cancel federal grants, to the president’s power to fire executive branch officials.

The vast number of cases, coupled with the diversity of legal issues and the near-daily developments, make it challenging for Americans to track—much less understand—the current lawfare. To aid our fellow citizens, then, today The Federalist runs its first in a series of in-depth articles covering this litigation, beginning with the issue most likely to reach the Supreme Court first: President Trump’s authority to fire executive branch officials and whether courts have the power to order such officials’ reinstatement.

Trump’s Firing of Executive Branch Officials

Soon after Trump’s inauguration, he replaced a wide array of executive branch officials with individuals committed to his agenda. So normal is this transition that Biden administration officials including Attorney General Merrick Garland and FBI Director Christopher Wray voluntarily resigned, recognizing Trump would soon nominate others to serve the executive branch.

However, Trump’s firing of other officials spurred litigation, including:

• Dellinger v. Bessent, in which Hampton Dellinger challenged his removal as special counsel of the Office of Special Counsel;
• Harris v. Bessent, in which Cathy Harris challenged her removal from the Merit Systems Protection Board (“MSPB”);
• Wilcox v. Trump, in which Gwynne Wilcox challenged her removal from the National Labor Relations Board;
• Grundmann v. Trump, in which Susan Tsui Grundmann challenged her removal from the Federal Labor Relations Authority; and
• Storch v. Hegseth, in which eight inspector generals challenged their removal from various Offices of Inspector General.

Trump also removed Ellen Weintraub as chair of the Federal Elections Committee (FEC), but while Weintraub claims her removal was illegal, she has yet to sue the Trump administration.

These lawsuits all raise overlapping issues, including: Whether Trump illegally removed these officials; whether Congress had authority to limit Trump’s removal authority; whether that legislation violated Trump’s Article II authority; and whether federal courts may order the reinstatement of officials and prohibit their firing.

The text of Article II and four Supreme Court precedents provide the necessary backdrop to understanding these legal issues and the litigation. Beginning first, then, with the Constitution:

Section 1 of Article II provides that “[t]he executive Power shall be vested in a President of the United States of America.” Section 2, among other things, provides that the president “shall have Power, by and with the Advice and Consent of the Senate, to . . . appoint . . . 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 Courts of Law, or in the Heads of Departments.”

Also relevant is Section 3’s command that the president “take Care that the Laws be faithfully executed,” because if the president cannot remove officials, he lacks the power to ensure the laws of the United States are faithfully executed.

Supreme Court Precedent

Four Supreme Court cases also bear directly on the litigation brought by fired federal officials.

Myers v. United States

The Supreme Court first addressed the president’s removal authority in 1926 in Myers v. United States. In that case, Frank Myers challenged then-President Woodrow Wilson’s 1920 removal of him from his office as postmaster. Myers argued his removal violated an 1876 statute Congress had passed that established four-year terms for postmasters and provided for their removal only “with the advice and consent of the Senate.” Because Wilson had not sought the Senate’s consent, Myers maintained his removal was illegal and that he was entitled to backpay.

Based on the text and history of Article II, the Supreme Court rejected Myers’ position, holding the Constitution empowered the president to remove executive officers, without Senate assent—and that Congress’s statute to the contrary was unconstitutional. Specifically, the Supreme Court stressed that Article II vested the executive power in the president, noting that that “was essentially a grant of the power to execute the laws.” And because the president is “charged specifically to take care that they be faithfully executed, the reasonable implication,” the Supreme Court explained, was that the president “should select those who were to act for him under his direction in the execution of the laws.”

The Myers court added that “[t]he further implication must be, in the absence of any express limitation respecting removals, that, as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible.”

Because Section 2 of Article II limited the president’s appointment authority, but was silent concerning his removal authority, the Supreme Court in Myers held Congress’s 1876 statute that purported to restrict the president’s authority to remove postmasters was “in violation of the Constitution, and invalid.”

Humphrey’s Executor v. United States

Although the Myers decision indicated the president had unlimited authority to remove executive officials, in 1935 in Humphrey’s Executor, the Supreme Court seemingly narrowed the president’s Article II removal authority.

That case began after President Franklin Roosevelt fired William Humphrey from his position on the Federal Trade Commission before the expiration of Humphrey’s six-year term and in violation of the Federal Trade Commission Act, which provided for the removal of an FTC member only for “inefficiency, neglect of duty, or malfeasance in office.”

Humphrey died before the Supreme Court issued its decision, resulting in the executor of his estate continuing the litigation and seeking money damages for lost wages. In Humphrey’s Executor, the Supreme Court distinguished the FTC from the position of postmaster at issue in Myers, reasoning that the FTC performed “quasi-judicial” and “quasi-legislative” functions.

The court in Humphrey’s Executor then held that Congress could “give for-cause removal protections to a multimember body of experts, balanced along partisan lines, that performed legislative and judicial functions and was said not to exercise any executive power.” Humphrey’s Executor, however, reaffirmed the core holding of Myers, that the president has “unrestrictable power . . . to remove purely executive officers.”

Seila Law LLC v. Consumer Financial Protection Bureau

The third case of significance is the 2020 decision in Seila Law v. Consumer Financial Protection Bureau. In that case, Seila Law LLC, a law firm providing “debt relief services,” challenged the constitutionality of the Consumer Financial Protection Bureau after the CFPB demanded Seila Law provide it various documents. Specifically, Seila Law argued that Congress in establishing the CFPB violated constitutional separation of powers by establishing a single-director head who served for five years and whom the president could only remove from office for “inefficiency, neglect of duty, or malfeasance in office.”

The Supreme Court agreed, explaining “[t]he President’s power to remove—and thus supervise— those who wield executive power on his behalf follows from the text of Article II, was settled by the First Congress, and was confirmed in the landmark decision Myers v. United States, 272 U. S. 52 (1926).” The high court then held that “the CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers.”

Seila Law proved significant beyond that holding, however, because in reaching that conclusion, the Supreme Court stressed that its “precedents have recognized only two exceptions to the President’s unrestricted removal power.” First, the court explained, Humphrey’s Executor held “Congress could create expert agencies led by a group of principal officers removable by the President only for good cause.” And second, “Congress could provide tenure protections to certain inferior officers with narrowly defined duties, . . .”

The Supreme Court in Seila Law then refused to expand the exceptions beyond Humphrey’s Executor and the precedent concerning inferior officers. Rather, the majority opinion explained that the proper question was whether the agency at issue shared the same characteristics of the agency at issue in Humphrey’s Executor.

As noted above, the agency at issue in Humphrey’s Executor was the FTC, and here Seila Law made an important point that suggests the Supreme Court will likely overturn Humphrey’s Executor if squarely presented with the issue.

Specifically, Seila Law stressed that Humphrey’s Executor inaccurately viewed the FTC as exercising “no part of the executive power.” That factual error alone would justify the Supreme Court overruling Humphrey’s Executor.

Nonetheless, the court in Selia Law did not overrule Humphrey’s Executor, but instead asked whether the CFPB bore the same characteristics as the FTC. The Supreme Court held that it did not because, among other things, the CFPB was “led by a single Director who cannot be described as a ‘body of experts’ and cannot be considered ‘non-partisan’ in the same sense as a group of officials drawn from both sides of the aisle.”

Further, the CFPB exercised quintessential executive power, while the FTC in Humphrey’s Executor “was said not to exercise any executive power.” Accordingly, the Seila Law court held the CFPB director could be fired by the president, at will. While Seila Law did not overrule Humphrey’s Executor, the Supreme Court’s analysis suggests that the holding in Humphrey’s Executor cannot be squared with the text and history of Article II.

Collins v. Yellen

The year after the Seila Law decision, the Supreme Court considered the president’s removal authority again in the case of Collins v. Yellen. At issue in Collins was the structure of the Federal Housing Finance Agency (FHFA), which was headed by a single director removable by the president only “for cause.” The court in Collins held the “for-cause restriction on the President’s removal authority violates the separation of powers,” stating that its “decision last Term in Seila Law is all but dispositive.”

Article II and the Supreme Court’s decisions in Myers, Humphrey’s Executor, Seila Law, and Collins, provide the framework for understanding the lawsuits filed against the Trump Administration by fired executive branch officials.

Back to the Present

Dellinger v. Bessent

Let’s return to the ligation against the Trump administration, beginning first with the lawsuit former Special Counsel Dellinger filed. In this case, Dellinger argued his removal as special counsel was illegal because Congress had established a five-year term for the special counsel and had further provided that the special counsel could only be removed by the president “for inefficiency, neglect of duty, or malfeasance in office.”

Soon after Dellinger filed suit, Judge Amy Berman Jackson, a Barack Obama appointee, entered a so-called “administrative stay,” ordering that “Dellinger shall continue to serve as the Special Counsel of the Office of Special Counsel.” Berman Jackson later issued a temporary restraining order (TRO) that likewise ruled “Dellinger shall continue to serve as the Special Counsel of the Office of the Special Counsel,” and further ordered that “Defendants may not deny him access to the resources or materials of that office or recognize the authority of any other person as Special Counsel.”

The Trump administration immediately sought stays of both the administrative stay and the TRO. In the stay requests, the Trump administration argued that Article II of the Constitution provided the president, as the sole head of the executive branch, the power to remove officials at will, and that Congress lacked the authority to limit the president’s power to fire an executive branch official. The Trump administration further maintained that federal courts lack the power to order the reinstatement of executive branch officials.

The D.C. Circuit denied Trump’s request for a stay of the administrative stay and the TRO. Rather than rule on Trump’s petition, the Supreme Court held its decision in abeyance, prompting a dissent by Justice Neil Gorsuch joined by Justice Samuel Alito.

That dissent did not address the question of whether Trump, by virtue of Article II, held authority to remove Dellinger at will. Instead, Gorsuch and Alito concluded the lower court lacked the authority to “restrain” the president from firing Dellinger or ordering his reinstatement. In other words, it was the remedy the dissenting justices focused on and not whether Congress could limit the president’s right to remove Dellinger.

With the Supreme Court holding a decision on the propriety of Dellinger’s reinstatement in abeyance, Dellinger continued to act as special counsel. Soon after, Judge Berman Jackson held a hearing on the merits of Dellinger’s claims, entered judgment in his favor, and issued a permanent injunction purporting to require Dellinger to retain his position as special counsel.

In ruling in Dellinger’s favor, Judge Berman Jackson rejected the Trump administration’s argument that Selia Law and Collins compelled a finding that Dellinger, as the single head of an agency, was removeable by the president at will. Rather, Berman Jackson concluded that the “unique” need for the special counsel to act with independence distinguished Dellinger’s case from Selia Law and Collins. Accordingly, the Obama appointee held the president could only terminate Dellinger “for inefficiency, neglect of duty, or malfeasance in office.”

The Trump administration promptly appealed and immediately sought a stay of Judge Berman Jackson’s order. Berman Jackson denied the request. However, this time the D.C. Circuit Court of Appeals granted the Trump cdministration’s emergency motion for a stay pending appeal, stating that its “order gives effect to the removal of appellee from his position as Special Counsel of the U.S. Office of Special Counsel.” “Appellants have satisfied the stringent requirements for a stay pending appeal,” the federal appellate court added, stating it would issue an opinion in “due course” explaining the court’s reasoning.

After the appellate court stayed the lower court’s order, Dellinger issued a press releasing saying he had decided not to continue to pursue his case. However, rather than voluntarily dismiss his complaint, Dellinger’s attorneys sent a letter to the appellate court saying the case was moot and later filed a motion to dismiss the appeal as moot. Both moves were contrary to rules of civil procedure and represented blatant efforts to foreclose the appellate court from issuing a ruling vindicating the Trump aministration’s position—that as the executive, Article II empowered the president to fire Dellinger.

The D.C. Circuit Court of Appeals has yet to rule on Dellinger’s motion to dismiss.

Wilcox v. Trump

On January 27, 2025, President Trump removed Gwynne Wilcox from the National Labor Relations Board. President Biden had nominated Wilcox to serve on the NLRB, and her term was not set to expire until August 27, 2028. By statute, members of the NLRB can only be removed in cases of “neglect of duty or malfeasance in office, but for no other cause,” and only after “notice and hearing.”

Soon after she was fired, Wilcox filed suit in a federal court in Washington D.C. challenging her removal. Last week, Judge Beryl A. Howell, a Barack Obama appointee, entered judgment in favor of Wilcox, holding Wilcox’s termination was unlawful and “therefore null and void.” Howell further declared that Wilcox remains a member of the NLRB and “shall continue to serve as a member of the NLRB until her term expires . . . unless she is earlier removed ‘upon notice and hearing, for neglect of duty or malfeasance in office.”

The court’s decision then enjoined other members of the NLRB from “treating plaintiff as having been removed from office, from impeding in any way her ability to fulfill her duties as a member of the NLRB, and from denying or obstructing her authority or access to any benefits or resources of her office,” and further requiring them to “provide plaintiff with access to the necessary government facilities and equipment so that she may carry out her duties during her term as a member of the NLRB.”

In ruling in favor of Wilcox, Judge Howell relied on Humphrey’s Executor, reasoning that like the FTC, the NLRB had a five-member leadership board with staggered terms of several years, which minimized instability and allowed for expertise to accrue. “Both were intended to exercise impartial judgment,” and the NLRB, according to Howell, like the FTC, is “’predominately quasi judicial and quasi legislative’ in nature, with the primary responsibility of impartially reviewing decisions made by [Administrative Law Judges].” Accordingly, the NLRB “closely resembles the FTC,” the court held, and “is thus ‘squarely at the heart of the rule adopted in Humphrey’s Executor.’”

The Trump administration immediately appealed the decision to the D.C. Circuit Court of Appeals. The Trump administration also sought a stay from Judge Howell, who on Saturday denied the request. The Trump administration is likely to now seek a stay from the D.C. Circuit Court of Appeals.

Given that Humphrey’s Executor remains controlling law, it is unclear whether the D.C. Circuit Court of Appeals would grant a stay based on the narrowing gloss Seila Law gave to Humphrey’s Executor. However, a stay would nonetheless be appropriate for the reasons the two-justice dissent in Dellinger explained, namely that federal courts lack the authority to enjoin the firing of executive branch officials or to compel their reinstatement. Rather, the only remedy Wilcox and others might have would be what Humphrey’s Executor sought and obtained—money damages for lost wages.

If the D.C. Circuit does not stay Howell’s order reinstating Wilcox to the NLRB, watch for the Trump administration to seek a stay from the Supreme Court. While a majority of the Supreme Court was unwilling to wade into the Dellinger case, that likely stemmed from the unique procedural posture of that case, as the government had sought a stay of a TRO. In contrast, here, Judge Howell entered a final judgment, which is immediately appealable.

Harris v. Bessent

On February 10, 2025, President Trump terminated Cathy Harris from her position on the Merit Systems Protection Board (MSPB). Congress in creating the MSPB provided for board members to serve seven-year terms and provided for their removal during that term “by the President only for inefficiency, neglect of duty, or malfeasance in office.”

After Trump removed Harris from the MSPB, she filed suit. Soon after, Obama-appointed Judge Rudolph Contreras granted Harris’s motion for a temporary restraining order, ordering that “Harris shall continue to serve as Chairman of the MSPB” and further enjoining various administration officials from “removing Harris from her office or in any way treating her as having been removed, denying or obstructing Harris’s access to any of the benefits or resources of her office, placing a replacement in Harris’s position, or otherwise recognizing any other person as a member of the MSPB in Harris’s position.”

The Trump administration asked Contreras to stay his TRO, but he denied the request. Thereafter the Trump administration filed an appeal from the TRO, but before the appellate court resolved that appeal, Judge Contreras entered final judgment in favor of Harris, again holding that she remains a member of MSPB and enjoining various Trump administration officials from removing her from office or otherwise interfering in her ability to carry out her functions as a member of the MSPB.

In ruling for Harris, Contreras relied on Humphrey’s Executor, stating that decision “remains alive and well, and it dictates the outcome here.” “The MSPB is ‘a traditional independent agency headed by a multimember board or commission,’” like the FTC, Contreras explained. Likewise, it is “a multimember body of experts” that is “balanced along partisan lines.” Thus, the court concluded, Congress could limit the president’s removal authority to for-cause grounds.

The Trump administration immediately appealed Contreras’s final judgment and requested the district court stay the decision pending appeal. Judge Contreras again denied the government’s motion for a stay. The Trump administration turned then to the D.C. Circuit Court of Appeals, requesting an emergency stay of Contreras’s order that reinstated Harris to the MSPB.

On Thursday, the appellate court ordered Harris to respond to the “Emergency Motion for Stay Pending Appeal” by Monday, and the Trump administration to file a reply by Wednesday. Of note: The three-judge panel presiding over the “Emergency Motion for Stay Pending Appeal” is the same panel that granted the stay in the Dellinger case.

Harris’s case differs from Dellinger’s situation, however, in that Dellinger was the single head of the Office of Special Counsel, while Harris is a member of a multi-member board. Seila Law thus clearly allowed for Dellinger’s removal, while Humphrey’s Executor arguably governs Harris’s case. Nonetheless, the Court of Appeals may well grant the Trump administration a stay on the alternative grounds that the court lacked the equitable authority to order Harris reinstated and to enjoin her firing—the resolution Gorsuch and Alito suggested in the Dellinger case.

If the D.C. Circuit denies the requested stay, the Trump administration will likely seek a stay from the Supreme Court.

Grundmann v. Trump

After coming into office, President Trump also fired Susan Tsui Grundmann from the Federal Labor Relations Authority. The FLRA is a three-member agency charged with administering labor-management relations for non-postal federal employees. In creating the agency, Congress established five-year terms for the members and provided that the members may be removed “by the President only upon notice and hearing and only for inefficiency, neglect of duty, or malfeasance in office.”

Grundmann sued the Trump administration after it removed her from the FLRA in violation of Congress’ for-cause removal mandate. The Trump administration countered that Article II of the constitution provides him authority to remove execute branch officials—including members of the FLRA—without cause.

Judge Sparkle L. Sooknanan, a Joe Biden appointee, heard arguments in the case on Friday, and has yet to issue a decision in the case.

Storch v. Hegseth

Finally, in Storch v. Hegseth, eight inspector generals whom Trump fired soon after the start of his second term sued the administration, claiming the firings violated the Securing Inspector General Independence Act of 2022. That law provides that the president may remove an inspector general from office, but requires the president to inform both houses of Congress, in writing, the reasons for the removal, “not later than 30 days before the removal, . . . .”

Attorneys for the inspectors general sought a TRO to force Trump to reinstate the eight fired plaintiffs to their positions. The plaintiffs would later withdraw their request for a TRO after Judge Ana C. Reyes, a Joe Biden appointee, reprimanded the attorneys for pursuing what she framed a frivolous motion.

The parties then proceeded to briefing on the plaintiffs’ “Motion for a Preliminary Injunction.” On Saturday, Judge Reyes entered an order delaying the hearing on the preliminary injunction motion that was scheduled for this week. Instead, she explained she would hold a hearing on the merits of the case, to be set for a later time.

Unlike the other cases in which the courts ordered the fired executive branch officials reinstated, from comments Judge Reyes made during the TRO hearing and in another miscellaneous court order, she seems unlikely to order the inspector generals reinstated. As Judge Reyes noted, the statute at issue does not limit Trump’s ability to fire the inspector generals but merely requires him to state his reasons for firing them and provide such notice 30 days ahead of the termination. At most then, it would appear the fired inspector generals would be entitled to 30 days of pay and not reinstatement.

While these cases will continue to percolate in the lower courts in the short term, soon the Supreme Court will face the question left unanswered in Selia Law: Whether Humphrey’s Executor should be overruled.

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Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press. She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals. Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance. Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.

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