Trump Fight To Fire Bureaucrats Is A Supreme Battle Worth Having

You could get a case of whiplash watching the federal court back-and-forth in the dizzying legal battles over just what executive branch power President Donald Trump is permitted to have. 

The administration’s fight to fire two federal board members in the bag for Democrats is a leading example of Trump’s understandable assertion that the executive branch has authority over, well, the executive branch — powers that have been eroded over the last century by Congress, courts, powerful bureaucracies, and weak presidents. 

Trump, tested and sharpened by the legal wars of his first term, is first and foremost spurring into action a Chief Justice John Roberts-led court that has shown itself to be tediously cautious and, at times, feckless, in resolving core constitutional questions while proving hasty in slowing Trump’s use of executive power. Even corporate media, certainly no friend of the Supreme Court’s conservative majority, have conceded as much. 

Earlier this month, the chief justice stayed lower court rulings ordering Trump to reinstate Gwynne Wilcox and Cathy Harris. Earlier this year, Wilcox, a member of the union stooge National Labor Relations Board (NLRB), and Harris of the bureaucracy-beholden Merit Systems Protection Board, were sent packing. Both were nominated by former President Joe Biden, who thought of himself as “the most pro-union president in American history.” Indeed, the bureaucrats led their respective boards as if they had been nominated by a man whose 2020 campaign for president was funded with $27.5 million from labor organizations, according to Open Secrets. 

In an email upon taking office, Trump fired Wilcox and the NLRB’s top lawyer, Jennifer Abruzzo, asserting that “heads of agencies within the Executive Branch must share the objectives of [Trump’s] administration.” He clearly believed Wilcox did not share his objectives. He felt the same about Harris, whose Merit Systems Protection Board was established to safeguard federal workers from being fired over politics. Trump has been challenged at every turn by Big Labor and Swamp lobbyists over his attempts to trim the bloated federal government and its massive workforce. 

‘Extraordinary Intrusion’

The disgruntled government employees sued, claiming the president has no authority to fire members of independent boards “without cause.”  

U.S. District Judge Rudolph Contreras, nominated to the D.C. bench in 2011 by President Barack Obama, quickly slapped a restraining order on the administration and demanded Harris be reinstated. In early March, Contreras issued a permanent injunction barring the administration from firing the federal bureaucrat. 

“The President thus lacks the power to remove Harris from office at will. Because the President did not indicate that he sought to remove Harris for inefficiency, neglect of duty, or malfeasance in office, his attempt to terminate her was unlawful and exceeded the scope of his authority,” Contreras wrote in his ruling. 

In a court filing, the Department of Justice argued Contreras’ ruling “constitutes an extraordinary intrusion into the President’s authority,” something power-grabbing, liberal D.C. judges have been routinely doing in the first 100 days of Trump 2.0. The DOJ asserts the president exercised his lawful authority under Article II of the Constitution. Justice Department attorneys made similar arguments in the Wilcox case. It is the lower courts, the administration argues, that lack the authority to issue restraining orders against Trump’s federal personnel actions.  

In ricochet proceedings, the firings have been ruled unlawful and perfectly legal. A three-judge U.S. Appeals Court panel in late March found that Trump could fire the bureaucrats “at will,” only for the full court to reverse that decision.

‘Demonstrably at Odds’

On April 9, the legal battle finally hit the Supreme Court, as expected. Roberts issued an administrative stay temporarily pausing the lower court rulings blocking the Trump administration terminations. In seeking emergency relief from the high court, Solicitor General D. John Sauer raised a familiar concern: infringement on the separation of powers. 

“The president should not be forced to delegate his executive power to agency heads who are demonstrably at odds with the administration’s policy objectives for a single day — much less for the months that it would likely take for the courts to resolve this litigation,” Sauer wrote.

At issue, ultimately, is whether a 1935 decision, Humphrey’s Executor v. United States, protecting members of federal boards and commissions from political firings, is constitutional. The case involved President Franklin Delano Roosevelt’s dismissal of William Humphrey, a Republican member of the Federal Trade Commission nominated by Roosevelt’s predecessor, President Herbert Hoover. Humphrey refused to resign. The case went to court. Humphrey died mid-litigation. His estate fought on. The Supreme Court eventually ruled in Humphrey’s favor and awarded his back pay to the estate. Perhaps Roosevelt got the last laugh; while Dead Democrats have been known to vote, reinstating a dead Republican to office is darn near impossible. 

The bureaucrat class has long leaned on that precedent, that there’s a kind of membership privilege for those serving on independent boards and commissions that protects them from political removal.  

“That’s changed over the last 20 years,” Mark Mix, president of the National Right to Work Legal Defense Foundation, said on a recent episode of “The Federalist Radio Hour” podcast. 

‘Unchecked and Unaccountable’

In 2020, the Supreme Court issued a ruling affirming the president’s right to sack the director of the rancid Consumer Finance Protection Bureau, the big-government monster lovechild of Sen. Elizabeth Warren, D-Mass., and Obama. As he began his second term, Trump fired Rohit Chopra, Biden’s director of the CFPB. U.S. District Judge Amy Berman Jackson last week blocked the administration’s plan to issue 1,500 layoffs — the brunt of the bureau’s workforce.  

“There is a substantial risk that the defendants will complete the destruction of the agency completely in violation of law well before the Court can rule on the merits, and it will be impossible to rebuild,” Berman Jackson, an Obama nominee, wrote in her imperious order. 

Big government watchdogs have long accused the bureau, created in the wake of the 2008 recession, of rampant abuse.  

“Nowhere has overregulation and overreach been more evident than at the Consumer Financial Protection Bureau, which became the most unchecked and unaccountable agency in the entire federal government under the previous Administration,” Rep. Andy Barr, R-Ky., chairman of the House’s Financial Institutions Subcommittee, said last last month during a hearing into the CFPB.

Mix, whose legal organization has for decades taken on Big Labor and its assault on worker freedom, said with so many disputes over executive power, the Trump administration’s case pushing up against the 90-year-old Humphrey’s Executor “has some legs.” 

“The National Labor Relations Board can interestingly enough take property from a private citizen. They can say, ‘You, Mr. Employer, owe back wages to your employee,’” Mix said. “That is the kind of taking of executive power that’s really a question ripe for whether or not an independent agency can have that kind of power absent accountability to Article II and the president’s authority over the executive branch.” 

‘A Grave Affront’

Sauer argues the same in the Trump administration’s reply to the response brief from the attorneys representing Wilcox and Harris. The solicitor general asserts a court ordering a president to reinstate a removed board member “is a grave affront to the President’s ability to run the Executive Branch and exceeds the limits on district courts’ equitable powers.” Trump, the court filing states, would be forced to unconstitutionally cede executive power while the Supreme Court mulls the case. That would “manifestly cause irreparable harm to the President and to the separation of powers,” the solicitor general argues.

“The President would lose control of critical parts of the Executive Branch for a significant portion of his term, and he would likely have to spend further months voiding actions taken by improperly reinstated agency leaders,” the filing asserts. “By contrast, in the unlikely event that re- spondents were to ultimately prevail, they could seek the traditional remedy of back-pay.”

“In short, [the board members’] asserted harms during the pendency of litigation are remediable, while the President’s are not. The Court should stay the district court’s judgments and grant certiorari before judgment,” the solicitor general urges. 

Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.