Court’s Ruling on Removal Authority Gives Trump Free Rein to Fire Civil-Service Employees

The Supreme Court’s order yesterday in Trump v. Wilcox (which I summarized here) has one huge consequence that the dissenters failed to point out: beyond enabling President Trump to fire members of multimember commissions who have statutory protections against at-will dismissal, it effectively gives him free rein to fire a broad swath of executive-branch employees despite the civil-service protections that they theoretically enjoy.

Have in mind that Chief Justice Taft’s opinion in Myers v. United States (1926), which is the gospel of unitary-executive theory, does not extend the president’s removal power to civil-service employees generally. On the contrary, Taft emphasized that his ruling “works no practical interference with the merit system.” (The term “merit system” is another name for the civil-service system.) Taft was rejecting the argument that his ruling would “open the door to a reintroduction of the spoils system.”

Trump’s dismissal of Merit Systems Protection Board member Cathy Harris disables the MSPB from operating: By statute, it needs a quorum of two members to act, but it now has only one member. And it’s up to Trump whether to try to add a second member.

Civil-service employees who believe that they have been wrongfully firing cannot ordinarily challenge their firing in federal court without first exhausting the MSPB’s administrative process. But it’s impossible to exhaust that process when the MSPB is unable to issue decisions. So civil-service employees fired by Trump will generally have no practical means to challenge their firing. (I gather that they would be able to do so when they claim that their firing violates the Constitution.)

Or so that’s my understanding of things (drawn in part from this conversation between Jack Goldsmith and Bob Bauer, though any error is of course mine).