Trump firings tee up broader legal clash over congressional power

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President Donald Trump's removal of inspectors general and independent agency board members over the last week is leading to another major legal dispute over Congress' authority to regulate the dismissal of federal officials, experts claim.

Democratic members of the Equal Employment Opportunity Commission and the National Labor Relations Board have been criticized by Democrats and experts for allegedly violating their legal safeguards against removal.

Andrea Katz, an associate professor of law at Washington University in St. Louis specializing in administrative agencies, said the firings seem to be "intentionally flouting the law to create a test case" to determine if the Supreme Court will back efforts to limit the executive branch's control.

“This is a very delicate moment for the legislative branch, with the courts potentially crippling Congress' ability to influence the actions of the executive branch.”

Trump seems to be counting on the Supreme Court, which is currently comprised of 6 conservative appointees, to stick to its past decisions that have raised doubts about the limits Congress has set on the president's authority over the executive branch.

The decision in Seila Law v. Consumer Financial Protection Bureau ruled that the president has the authority to remove the director of the CFPB at will.

Congress established the CFPB as an independent agency following the 2008 financial crisis, appointing a single director who could be removed by the president only for misconduct.

"It's a clash between the president and Congress, and the Supreme Court seems to be leaning towards backing the president on this issue," Katz said.

According to existing law, President Trump has the power to remove members from their positions for just cause at various federal agencies, including the National Labor Relations Board, the Equal Employment Opportunity Commission, the Federal Trade Commission, and the Federal Communications Commission.

Allowing Trump to replace agency board members at his discretion would give him more direct control over the agencies.

In Trump's second term as U.S. President, he has already fired NLRB member Gwynne Wilcox and EEOC members Charlotte Burrows and Jocelyn Samuels. The firings leave both agencies below the number of members needed to issue official decisions.

Additionally, the administration removed over a dozen inspectors general and career law enforcement officials who were involved in the investigations against Trump before the 2020 presidential election.

Federal law provides safeguards for federal employees, and a 2022 legislation mandates that the president must give a 30-day notification to Congress prior to removing an inspector general.

Kathryn Newcomer, a professor of public policy at George Washington University, stated that the inspector general and other firings appeared to disregard the protections against removal that Congress established.

Now Congress, what are you going to do? Are you just going to stand by and give up your authority?

White House strategy

White House Press Secretary Karoline Leavitt came to the president's defense, citing the authority of the president to terminate anyone working for the executive branch when questioned about the decision to let go of inspectors general and career prosecutors.

“He is the head of the executive branch, so he has the authority to let go of anyone in the executive branch if he wants to,” Leavitt said.

The administration believes they'll have a favorable outcome if they are taken to court.

Massachusetts Senator Elizabeth Warren and other Democrats stated that the firings signified a perilous attempt by Trump to assume control of the executive branch. "That's what Trump is moving towards, to have authority over everything, and no one anywhere will be in a position to exert control over him," Warren said.

Multiple Democrats, including Warren, suggested that Congress should act to counter Trump's claims of authority, although that would likely necessitate some degree of Republican cooperation.

Trump doesn't want any limitations on his authority. The Supreme Court has taken a major step in that direction, but Congress hasn't pursued it further. We must continue enforcing laws as they are written.

Republicans have put up minimal opposition to Trump's personnel changes. On Monday, Representative Mike Johnson justified the decision to remove the inspectors general, even though it appears to contravene a law requiring advance notification.

There are times when you really need a new perspective," Johnson said. "Occasionally, you need to turn the page and start anew with a clean slate.

According to a letter sent on Tuesday, Chairman Charles E. Grassley from Iowa, who chairs the judiciary committee, and Ranking Member Richard J. Durbin from Illinois, Democrats, have written to Trump to request an explanation for why the officials overseeing internal investigations weren't fired in a manner that notified Congress beforehand.

“While independent government organizations aren't exempt from making decisions that could lead to their removal, and the president can remove them, the law still needs to be followed.”

Senator Durbin stated on Wednesday that they have yet to receive any response from the White House regarding the matter at hand.

Senator Josh Hawley, a Republican from Missouri, justified President Trump's decision to fire a member of the National Labor Relations Board without citing the reason for the firing, which Hawley said will create a court fight over Trump's control of independent agencies.

Not often does one see such a large majority agree on this point, which is that the vast majority of presidents believe the government ought to have more authority over government departments, while the majority of Congress members believe they ought to have less.

Thomas Berry, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, stated that the firings appear to be putting in place a backdrop for Supreme Court conflicts regarding the president’s power over independent agencies, "assuming both sides remain prepared for a confrontation."

Berry stated that the justices have previously sidestepped cases involving a president's authority to remove board members. The Cato Institute has also failed in its efforts to persuade the Supreme Court to take up the issue, previously requesting review in a case known as FCC v. Consumer Research earlier in the term.

whose checks should come from within other branches rather than from within the executive branch.

Katz said conservatives who are upset about the federal government's growing size are adopting a strategy that asserts the president's power over the executive branch in order to have the authority to cut back on its size.

The second Trump administration is the most complete implementation of that Nixonian strategy that we have ever seen," Katz said. "In fact, it almost entirely bypasses Congress in the process.

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