Answering a Paid Subscriber Question

Who can Trump Actually Fire?

This week, I received a question from a paid subscriber.

From my understanding, Trump is in charge of the executive branch and outside of appointments for heads of departments, he can fire people who are underneath the executive branch. Is this correct? Specifically, can Trump fire those at USAID?

Not quite.¹ To answer:

1. Trump can fire most executive branch officers including department heads and Senate confirmed cabinet secretaries.

2. Trump is currently limited from removing some federal agency supervisory board members and independent inspector generals of federal agencies.

3. Trump likely cannot fire, suspend, or furlough permanent USAID employees who are civil service protected without cause.

Let’s break this down.

Unless a federal law says otherwise, Trump can fire executive branch officers at will, including appointed department heads.² Trump even has the power to unilaterally remove cabinet secretaries even though the Appointments Clause requires that they first must be confirmed by the United States Senate.³

Why does Trump have this power?

Article II of the United States Constitution vests the executive power of the United States solely in the President.⁴ Article II requires that the President, among other things, “take Care that the Laws be faithfully executed”.⁵

Because the President cannot carry out all their duties alone, there have always been officers within the Presidential administration to assist the President in carrying out their duties.⁶ Even though it’s not expressly provided for in the Constitution, there has been an assumption that the President has the power to pick those officers, and by implication, has the power to unilaterally remove them.⁷

As the United States Supreme Court once explained:

The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.⁸

Thus, Trump has the legal authority to fire most federal agency heads and cabinet secretaries, in addition to executive officers who work under him at the White House. And only he can exercise this power.⁹

There are some exceptions to this rule that limit Trump’s authority.¹⁰ Pursuant to federal statute, Trump cannot fire certain Presidential appointees such as members of the Federal Trade Commission, the Federal Reserve Board, the National Labor Relations Board, and the Federal Elections Commission, unless it is for cause.¹¹

Trump also cannot fire department inspector generals, who are protected to maintain their independence.¹² He has purported to do this and received pushback from Inspector Generals who are refusing to leave their jobs and even Republican Senator Chuck Grassley (R-Iowa).¹³ He also purported to fire Democratic Federal Elections Commissioner Ellen Weintraub, who has refused to leave her position.¹⁴

Here’s where it gets tricky.

Laws that limit the President’s power to remove executive officers can sometimes violate the President’s constitutional authority.¹⁵ And the courts have struck down laws that violate this principle.¹⁶

Whether laws that restrict the President’s right to fire executive officers are constitutional will depend upon the circumstances.¹⁷

For example, the United States Supreme Court has held that the limitation on the President to remove members of the Federal Trade Commission was constitutionally permissible.¹⁸ The Court also upheld the limitations imposed on the President’s removal powers in regards to the Independent Special Counsel’s office.¹⁹

However, the Court more recently held that the President could not be restricted from removing the director of the Consumer Financial Protection Bureau.²⁰ In 2010, the Court also struck down a provision of the Sarbanes Oxley Act that prevented the President from firing a lower executive officer unless the Securities and Exchange Commission approved the removal.²¹

One thing that the Court looks at to evaluate whether a just cause termination provision is constitutional is whether the position is one comprising a governing board of multiple members.²² The more important consideration that the Court evaluates is whether the limitation on the President’s removal power interferes with or otherwise impedes the President’s ability to carry out the duties of office.²³

Some Justices would like to do away with limitations on the President’s removal power altogether.²⁴ The Supreme Court has definitely shifted on the President’s power to remove.²⁵ Legal scholar and Harvard Law professor Jeannie Suk Gersen has suggested in a recent article, The Strategy Behind Trump's Defiance of the Law, that Trump’s moves are designed for the purpose of bringing about this result.

But this is a two-edged sword for Trump.

Can Trump can simply shut down USAID, a Congressionally created institution, because he feels like it? If the Court is going to strictly interpret Article II powers to mean that Congress cannot create Presidentially-appointed positions that are independent from the President’s control, then the President cannot simply shut down agencies he dislikes because only Congress has that power.²⁶

Finally, the ability of the President to fire executive officers is different from the ability to fire career federal civil servants.

Regular civil servants enjoy civil service protection that prohibits them from being fired at will.²⁷ Hence, Trump’s offers of buyouts to federal employees who agree to quit their jobs.²⁸

It seems almost certain that Trump can fire the head of USAID and non-civil service executive officers who work in the department. Any law to the contrary would likely be unconstitutional.

However, can Trump simply fire the USAID workers who have civil service protections and or shut down an entire agency without Congressional approval? Almost certainly not.

If he does that, to quote Congresswoman Sydney Kamlager-Dove (D-Los Angeles), “Welcome back to [this episode of] ‘Is this shit legal?’ Where the answer is always No!”²⁹

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.