The Supreme Court has overruled a 91-year-old precedent that limited the president’s ability to fire certain senior-level executive branch officials. In Trump v. Slaughter, decided Monday, the court found that constitutional “text, history, and structure” teach that “the President may remove his subordinates at will.” Chief Justice John Roberts, writing for the majority, explained: “When power is exercised well, the people know whom to thank; when power is exercised poorly, they know whom to blame—and whom to fire. That is the very premise of our system of government.”
Donald Trump listens as JD Vance speaks during a rally. (Reuters)
This opportune ruling comes on the heels of a June 3 executive order in which President Trump removed “for cause” job protections from roughly 8,000 federal employees in “policy-influencing positions.” The effect is to make them subject to “at will” termination of their employment.
This executive order was the latest step in a process Mr. Trump began in his first term aimed at increasing accountability in the executive branch. But it affects only a small percentage of executive-branch employees. The president can go further and treat all executive-branch employees as at will. This is what the framers intended, because the president must have the unfettered ability to hold accountable those who assist him in carrying out his duties.
The president is constitutionally tasked with running the executive branch—which has become a mind-bogglingly massive organization that spends roughly $7 trillion annually, employs more than two million civilians, and would be unwieldy under the best circumstances. Extravagant—and, more important, unconstitutional—civil service protections have created a bureaucracy that is unanswerable to the president and, by extension, unaccountable to the American people.
For the first century of our republic, it was understood that the president could fire any executive-branch employee for any reason. The Pendleton Act of 1883 began to impose limits by prohibiting political favoritism in filling certain positions. Thirty years later, the Lloyd-La Follette Act introduced the idea that civil-service employees should be removed only for cause.
In 1978, the sweeping changes of the Civil Service Reform Act introduced immensely cumbersome substantive and procedural employment protections for more than 90% of civil servants. These include a mandate that adverse employment actions be taken only for cause, no fewer than a dozen mitigating “Douglas factors” that managers must consider before taking adverse employment action, various notification and procedural rights, and the right to appeal to the Merit Systems Protection Board. Such appeals include a formal hearing, the right to be represented by legal counsel, and in most cases the right to contest an adverse ruling in federal court.
The June 3 executive order notes that as a result of these burdensome requirements, only a quarter of the supervisors in the executive branch believe they could remove serious underperformers.
In Bush v. Lucas (1983), Justice John Paul Stevens wrote for a unanimous court: “Federal civil servants are now protected by an elaborate, comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures—administrative and judicial—by which improper action may be redressed. They apply to a multitude of personnel decisions that are made daily by federal agencies.”
These expansive employment protections for executive branch employees are inconsistent with the president’s constitutional imperative to enforce the law, which the court has recognized many times. The Constitution vests “the executive power” in the president and obligates him to “take care that the laws be faithfully executed.” The Supreme Court recognized in Myers v. U.S. (1926): “The President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates . . . As part of his executive power, he should select those who were to act for him under his direction in the execution of the laws. The further implication . . . must be his power of removing those for whom he cannot continue to be responsible.”
In 2010, in Free Enterprise Fund v. PCAOB, the justices reiterated that the president must have “the authority to remove those who assist him in carrying out his duties” and that “without such power, the President could not be held fully accountable for discharging his own responsibilities.”
In Seila Law v. CFPB (2020), the justices held that restrictions on the president’s removal authority can’t “unduly interfere with the functioning of the Executive Branch.” That’s the key point. How can it not unduly interfere with the functioning of the executive branch when more than 90% of those employed within it enjoy “an elaborate, comprehensive scheme” of job protections and a lengthy appeals process to challenge any termination?
It’s not an extraordinary concept for employees to hold their jobs on an at-will basis. Most Americans do. If Mr. Trump were to treat all executive branch employees as at-will, he’d merely be putting them in a position comparable to their counterparts outside government, and he’d be managing the executive branch as the framers intended.
Mr. Beck is author of “Constitutional Separation of Powers: Cases and Commentary.” He served as chairman of the Federal Labor Relations Authority, 2008-09, and a member until 2012. He was an adviser to the Trump-Vance transition and a consultant to the Department of Government Efficiency.
