The latest chapter provides more hurdles for both Trump’s top-down and bottom-up efforts to bring the federal bureaucracy to heel.
The latest chapter provides more hurdles for both Trump’s top-down and bottom-up efforts to bring the federal bureaucracy to heel.
W e’ll see what happens with Thursday’s ruling reinstating thousands of probationary federal employees, issued by a San Francisco federal judge, William Alsup, who is in senior status, having been appointed by President Clinton 26 years ago. This is the bottom-up part of President Trump’s effort — led by Elon Musk and DOGE — to pare back the federal workforce and the administrative state. That is, it targets the 2.2 million-member workforce, not those at the helm.
As we’ve covered in recent weeks, this has been coming: Before the president’s firing of Special Counsel Hampton Dellinger was finally upheld by the D.C. Circuit this week, Dellinger used the reinstatement granted him by an Obama appointee, Judge Amy Berman Jackson, to petition a Biden appointee to the Merit Systems Protection Board (MSPB), the now-retired Raymond Limon, to reinstate a half-dozen probationary federal employees. Meantime, Limon’s MSPB colleague, Biden-appointed Chairwoman Cathy Harris, who had also been fired by the president, convinced another Obama appointee, Judge Rudolph Contreras, to reinstate her; she then used this new lease on life to reinstate about 6,000 more probationary employees.
These cases are heading for appellate review. As far as the sprawling workforce is concerned, the question is whether the president is bound by the civil service protections Congress, then led by progressive Democrats, enacted in the 1970s to insulate the federal employees — even those in purely executive agencies — from the control of, and particularly termination by, the president.
Now, let’s talk top-down: the latest developments in Trump’s effort to remove Biden-appointed agency chiefs — with an eye on the federal district court in Washington, D.C., before which the crucial opening rounds of these cases are playing out.
I’ve already mentioned Judge Contreras’s reinstatement of MSPB Chairwoman Harris. Now we come to Judge Sparkle L. Sooknanan, a progressive Democrat who, like Judge Amir Ali, her fellow controversial Biden appointee to the D.C. district court, was Senate-confirmed after Trump’s election by a razor thin 50–48 margin (thanks to full Democratic support, and the failure of two absentees — then-Senators JD Vance (R., Ohio) and Kyrsten Sinema (I., Ariz.) — to vote him down). On Wednesday, Judge Sooknanan ordered the reinstatement of Susan Tsui Grundmann, the Biden-appointed chairwoman of the Federal Labor Relations Authority, whom Trump fired on February 10 (around the same time he removed Dellinger and Harris). In the meantime, Judge Beryl Howell, a now-senior Obama appointee to the D.C. district court (after being its chief judge for a number of years) has ordered the reinstatement of the Biden-appointed chairwoman of National Labor Relations Board, Gwynne Wilcox, whom Trump fired on January 27.
The D.C. district court is dominated by Democratic appointees. That will persist throughout the president’s term, while the court continues to adjudicate the most significant cases involving the federal government, its administrative agencies, and its workforce.
It is the tribunal that handled the 1,600 Capitol riot prosecutions, which the president has erased by mass pardons. Judge Howell oversaw grand jury matters in the special counsel investigations of Trump by Robert Mueller and Jack Smith — it was she, for example, who ruled in Smith’s Mar-a-Lago grand jury investigation that Trump’s lawyer had to testify against him because she concluded that Trump was engaged in a crime, nullifying his attorney-client privilege. The D.C. district court’s Obama-appointed Judge Tanya Chutkan, who is overseeing the blue states’ challenge to DOGE and has threatened the Trump Justice Department with sanctions for misleading the court (see opinion, p. 2, n. 1), presided over Smith’s January 6 case against Trump and made little secret of her disdain for the now-president. The aforementioned Judge Ali recently tried to prevent the president from pausing billions of dollars in foreign aid spending until the Supreme Court brushed Ali back — and even in retreating, the judge opined that only Congress, not Trump, could rescind such appropriations.
Suffice it to say, Washington’s federal district court is not what you’d call a homefield advantage for the White House. To get a read on its prevailing sentiment regarding the president, Howell’s opinion in last week’s Wilcox case is instructive:
A President who touts an image of himself as a “king” or a “dictator,” perhaps as his vision of effective leadership, fundamentally misapprehends the role under Article II of the U.S. Constitution. [ACM: I’ve omitted the footnote, which collects relevant citations, including the president’s quoting of Napoleon’s probably apocryphal pronouncement that “He who saves his Country does not violate any Law” – which, as our Mark Antonio Wright observed, was “indefensible.”]
Trump has undertaken to remove the Biden-appointed leaders of administrative agencies, and most inspectors general. (In the Trumpian way, the president has not fired the best known IG, the Justice Department’s Michael Horowitz, who just happens to have issued reports that scathed Trump’s FBI antagonists — regarding the Russiagate and Clinton emails capers, former Director James Comey’s leaking of investigative documents, former Deputy Director Andrew McCabe’s false statements in an investigation of a leak he orchestrated, and the bureau’s mind-boggling FISA malfeasance. To be clear: Horowitz — my former SDNY colleague — is a straightshooter and, if anything, I often thought he went easier on the bureau than it deserved. His reports have been valuable for the president’s political and legal purposes, but that’s because of the FBI’s appalling performance, not Horowitz’s descriptions of it.)
The court challenges triggered by Trump’s removals of these top-tier agency officers bring to the fore his push to get the Supreme Court to reverse its 1935 decision in Humphrey’s Executor v. United States. As I’ve recounted, two originalist justices, Clarence Thomas and Neil Gorsuch, have called for the Court to overrule the case, which is foundational for the administrative state: It endorses (a) the counter-constitutional proposition that Congress may ignore separation of powers principles and create agencies that, while wielding some executive power, are vaguely deemed “quasi-legislative” and “quasi-judicial” in character; and (b) the corollary that Congress may place restrictions on the president’s authority to remove officers who exercise some quantum of executive power — on the confusing rationalizations that they don’t exercise too, too much executive power, or that it should be good enough for efficiency’s sake that the president’s removal power is limited to good cause, such as inefficiency, neglect of duty, or malfeasance in office.
As these cases are shaking out, we can already detect trends.
If an agency wields executive power and is led by a single chief officer, or if the position in question is patently executive in character, the courts are going to approve the president’s removal of such officers. That was the position the Supreme Court took in Myers v. United States (1926), and — despite Humphrey’s Executor — it is the position the Court has taken in such recent precedents as Seila Law (2020), involving the president’s authority to remove of the head of the Consumer Financial Protection Board, and Collins v. Yellin (2021), involving the president’s authority to remove of the director of the Federal Housing Finance Agency.
As detailed above, Judge Amy Berman Jackson tried to prevent Trump from firing Hampton Dellinger, head of the Office of Legal Counsel. Although the OLC is essentially a prosecutor’s office led by a single official, Judge Jackson torturously argued that the point of its existence was to grant federal employees and their overseers independence from the president. The problem with this reasoning is not that it’s wrong; it’s that it’s right . . . but it’s also exactly what our constitutional forbids — government authority unmoored from any official who is electorally accountable to the public — notwithstanding progressive objections to this “politicization” of “public service.”
Guided by the just-discussed Supreme Court jurisprudence, the D.C. Circuit countermanded Jackson and approved Dellinger’s firing. Hence, while the Democratic-leaning D.C. district court won’t like it, the judges will have to follow this instruction. This means Trump’s at-will removal of the inspectors general and single heads of agencies is certain to be upheld.
The tougher cases involve agencies led by boards or other multi-headed arrangements, and that arguably exercise comparatively few executive powers. The higher courts seem leery of having district judges suss out some triggering degree of executive power that transmogrifies a supposedly independent agency into an executive one that is subject to having its leadership removed at will by the president. That makes sense: Since the Constitution reposes executive power wholly in the president, a federal officer who supervises the exercise of any executive power should be subject to at-will presidential removal.
The multi-head agencies, however, are a closer call. It’s not that they should necessarily be; it’s that the federal government — and the administrative state it has built — has assumed the independence and legitimacy of such agencies for over a century. It would be revolutionary to knock that bureaucratic fortress down. The Supreme Court was cautious on this score in Seila Law, which lower courts plausibly read as preserving the Humphrey’s Executor exemption of such agencies from the general rule that the president must have unrestricted removal power.
The Trump Justice Department is attempting a high-wire act: It is trying to gut the Humphrey’s Executor exemption, but it is simultaneously paying lip-service to stubborn fact that the lower courts must continue following Humphrey’s Executor because only the Supreme Court has the power to overrule a Supreme Court precedent — which it has not done, despite the urging of Justices Thomas and Gorsuch.
When pressed by Judge Sooknanan in the aforementioned Grundmann case about whether any existing federal agency could maintain the Humphrey’s Executor restrictions on the president’s removal authority in the teeth of the Trump administration arguments against such restrictions, the Justice Department offered just one example: the Federal Reserve. This prompted Sooknanan to scoff: “The Federal Reserve sets the federal funds rate . . . which permeates every corner of the American economy.” Logically, if the Justice Department does not see that kind of authority as rising “to an exercise of substantial executive power,” then why is the Trump administration targeting the heads of agencies that wield less consequential executive power?
She’s right. The Trump DOJ’s argument seems incoherent because the administration is taking a political position, not a legal one. Analyzed legally, under the administration’s stated theory, the Federal Reserve clearly exercises executive power and the president should thus be empowered to remove its board members at will. Yet it would be extremely controversial to state that position openly and without hesitation. Doing so could rattle the financial markets even more than the Trump tariffs have. Ergo, at least for now, the administration is conceding that Trump can’t just wave his wand and fire the Fed’s board en masse; the president will adhere to Congress’s removal restrictions (at least until he decides that he won’t).
This brings the key question into sharp relief: If President Trump’s Justice Department pulls up short of advocating the complete the unitary-executive logic of the administration’s position, do we really think there are five votes on the Supreme Court to do so? Especially when the president is engaged in madcap moves like trying to swallow Canada, issuing executive orders that aim to put a Democratic law firm out of business, and claiming that he can’t be in violation of any law if he is trying to save the country?
The Supreme Court’s justices are not generally hostile to the president the way the D.C. district court’s bench tends to be. Still, I wouldn’t bet Greenland that the High Court will overrule Humphrey’s Executor, even if it should.