The Justice Department pushed for a judge to allow President Donald Trump to appoint his own nominee at the Merit Service Protection Board, in order to replace the member he unlawfully fired.
The irony is particularly sharp in this case, as the once little-known MSPB was set up by Congress to shield the federal civil service from partisan retribution. Congress accordingly granted the leaders of the agency, including fired member Cathy Harris who filed the suit, long terms and removal protections, so they can’t be dismissed at will (Harris says she was fired without cause in a one-sentence email).
The MSPB is currently being inundated as federal workers flood its understaffed office with appeals of their firings. Some judges have dismissed worker lawsuits, telling the fired federal employees they must first adjudicate their cases at the MSPB — all while the Trump administration attempts to paralyze it.
In a Monday hearing in Washington, D.C., before U.S. District Judge Rudolph Contreras, an Obama appointee, the DOJ’s Jeremy Newman pushed for Harris not to be reinstated — even if the judge ultimately agrees with her that her firing was illegal.
Newman instead argued for eventual backpay if Harris wins the case, so Trump can either let her spot sit vacant, depriving the agency of the quorum it needs to fully operate, or put in his own person — effectuating the partisan takeover even while the agency is still nominally independent. The third member of the board, a Democrat, resigned on Friday, leaving one Republican member and Harris, who was temporarily reinstated by Contreras’ order.
Newman argued that ordering Harris’ reinstatement would be a roundabout way to prevent Trump from exercising his official powers, including “exercising his constitutional ability to nominate a replacement.”
Judge Contreras seemed most skeptical on this point, pushing back against Newman’s recitation of historical antecedents and noting that some of his arguments came from dissents, not majority opinions.
Trump and Elon Musk’s mass firings of independent agency members have sent dozens of lawsuits like Harris’ into the federal courts, setting up a Supreme Court showdown over the extent of the President’s removal power.
As of now, at least some agencies still retain congressionally given removal protections — meaning that the agencies can, in theory, operate truly independently of the White House, their members comfortable in the knowledge that long terms and stringent requirements for dismissal give them a layer of protection. Trump and Musk have fired federal employees in open violation of those protections.
The Roberts Court had been steadily hacking away at the removal protections even before Trump retook office, leaving agencies including the Federal Reserve and the MSPB as the last vestiges of true independence in the executive branch.
Experts fear that the Supreme Court will obliterate the last of these agency protections, bringing the entire executive branch more firmly under the President’s power. It would be a realization of a maximalist version of the unitary executive theory, once a fringe right-wing conception of immense presidential power that now has adherents on the Supreme Court.
Experts told TPM that the independent agencies’ greatest hope of survival is the conservative justices’ fear of the economic crisis that would likely follow a partisan takeover of the Federal Reserve. While many of the right-wing justices — if not all of them — may endorse the unitary executive theory, they may also blanch at the macroeconomic instability that would be unleashed by the United States losing its independent central bank.
Lawyers have been crafting their arguments accordingly.
An attorney for Harris, the fired MSPB member, opened his arguments Monday not with an appeal on behalf of her agency, but a warning about another agency that could be decimated if her firing stands.
“The government is a bit mealy-mouthed on this piece, but seems to acknowledge that the Federal Reserve Board is constitutional — and for all of our sakes, I hope that’s true,” Nathaniel Zelinsky said.
“That admission should be the end of this case — if the Fed … is constitutional, so is MSPB by a mile,” he said, adding grimly that “the converse is also true.”
So far, the Trump administration is at least claiming that it wants to keep the Fed partially independent; in a recent executive order, the administration purported to place all executive branch agencies under presidential control with the exception of the Fed’s monetary policy duties. Experts are skeptical that such a separation could actually be executed, given how the agency is currently structured.
The Trump administration has already appealed the temporary restraining order that Contreras granted in favor of Harris to the D.C. Court of Appeals. Whichever way he rules on the merits, the decision is certain to be appealed, too.
“In the theory you just heard, not only is the Fed unconstitutional, the merit-based civil service is unconstitutional and the President can fire every single person in the executive branch,” Zelinsky said to end his presentation after the government’s lawyer spoke.
