Donald Trump’s Newfound ‘Cause’

President Trump’s campaign to scale back the bureaucracy is bolstered by a fired federale, Hampton Dellinger, having dropped his bid to keep his job. Yet like Whac-A-Mole, other fired employees have cases popping up in court. These clashes are likely to reach the Supreme Court, which could end up deciding how much power the president has to fire federal employees. Is Mr. Trump tweaking his rationale to buttress his case in the federal courts?A month ago, Mr. Trump was speaking of the need for “large-scale reductions in force.” In practice, this appeared to translate to firing federal employees en masse — especially among probationary hires who are not subject to Civil Service protections. Last week, though, Mr. Trump announced a more selective approach. “I want the cabinet members to keep good people,” he said Thursday. “I don’t want to see a big cut where a lot of good people are cut.”It is too early to determine whether Mr. Trump’s shift in rhetoric marks a change in legal strategy for his administration. Yet tying the layoffs to “cause” — the quality of the work being performed by a federal employee — could chart a path toward pre-empting some of the lawsuits being brought against Mr. Trump’s terminations. Supreme Court precedents have upheld Civil Service laws that shield employees from being fired, except for cause.Most recently, in a 2020 case, Seila Law v. Consumer Financial Protection Bureau, the Supreme Court stressed the president’s power to fire federal officials. Because the president, under the Constitution, is the sole repository of the powers of the executive branch, control over federal personnel is crucial to his or her ability to “take Care that the Laws be faithfully executed.” Yet the Nine distinguished between “principal” and “inferior” employees.“The buck would stop somewhere else,” Chief Justice Roberts explained, if the president lacked the “power to remove — and thus supervise — those who wield executive power on his behalf.” As a result, the high court determined, the president had authority to fire, without cause, “principal” officers like federal agency chiefs. That logic is, one imagines, a reason why Mr. Dellinger — the head of the Office of Special Counsel — dropped his federal lawsuit.The same reasoning could, one imagines, hamstring the cases of other federal officials who are contesting their terminations by Mr. Trump. In one case that echoes Mr. Dellinger’s, the chairwoman of the Merit Systems Protection Board, a federal personnel agency, Cathy Harris, argues that federal law bars her from being fired without cause. The Sun has long held that the president has the constitutional authority to fire any federal employee without cause. In Seila Law, though, the Nine found that “inferior” officers in the federal bureaucracy — those with what Chief Justice Roberts calls “limited duties and no policymaking or administrative authority” — can be shielded from being fired without cause under federal law. These laws, first devised under the rubric of Civil Service reform, which the Sun has opposed since at least 1883, have helped give rise to a Deep State of unaccountable, unelected bureaucrats. Even The Great Scalia, though, conceded that civil service laws passed muster. The question arose in 1988 in Morrison v. Olson, which upheld the special counsel law. Scalia, in his dissent, averred that the constitution requires the president to “have plenary power to remove principal officers.” Yet, per Scalia, the parchment “does not require that he have plenary power to remove inferior officers.” It “is enough,” he said, “that they be removable for cause.”Scalia and colleagues acknowledged the validity of a precedent dating to 1886: United States v. Perkins. The Nine then reversed the firing of a Naval cadet-engineer because Congress had shielded officers from being fired absent a court-martial. Is Mr. Trump now conceding, as Scalia foresaw, that he could lack the authority to fire, without cause, mere employees? If the high court agrees, what a loss for the taxpayers and what a win for the Deep State.

Donald Trump’s Newfound ‘Cause’

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