In President Donald Trump’s first 100 days in office, roughly 25,000 federal workers have been terminated across 18 departments or agencies. While most of these cuts have targeted lower-level probationary employees, the Trump administration has also targeted heads of key government agencies, particularly government watchdogs. Most prominently, President Trump abruptly fired Hampton Dellinger, the head of the Office of Special Counsel (OSC), and Cathy Harris, the head of the Merit Systems Protection Board (MSPB). These firings are not isolated incidents; rather, they are part of a crucial strategy to undermine institutions that exist to prevent political interference in federal employment.
Critically, the Trump administration’s removal of the heads of the OSC and MSPB violates constitutional precedents governing the removal of employees in independent agencies within the executive branch. Prior cases, such as Humphrey’s Executor v. United States (1935) and Morrison v. Olson (1988), establishes that officials who perform quasi-judicial or quasi-legislative functions—like those at OSC and MSPB—cannot be removed without cause by the President. Both of these firings occurred without cause. Although the Court has gradually weakened the protections offered to independent agencies, they have consistently carved out exceptions for specific non-partisan agencies engaging in federal oversight. By ignoring this precedent, these mass firings would eliminate checks against executive power and undermine the civil service’s integrity.
Context
To grasp the gravity of these removals, it is important to understand the structure and functions of these independent agencies. Both the OSC and the MSPB are non-partisan, independent agencies created to protect federal employees from abusive or illegal management practices. In addition, both of these agencies were established in 1978 as part of the Civil Service Reform Act (CSRA), a landmark piece of legislation intending to reform the federal bureaucracy. The OSC is tasked with investigating prohibited personnel practices (PPPs), such as reprisals for whistleblowing, mismanagement and waste, and abuse of authority. The OSC is led by the Special Counsel, a presidentially appointed official who serves a five-year term and can only be removed for cause (i.e., inefficiency, neglect of duty, or malfeasance). On the other hand, the MSPB is a quasi-judicial agency that adjudicates federal employment disputes and prevents hiring and firing decisions along politically partisan lines. The MSPB is a three-member board, and as part of its non-partisan nature, no more than two of the three members can belong to the same political party. Although this article focuses specifically on these two agencies, there are a variety of similar agencies in the executive branch that operate outside of direct presidential control, including the Federal Election Commission (FEC), Equal Employment Opportunity Commission (EEOC), and Securities and Exchange Commission (SEC).
Legal Issues with Trump’s Removals
To demonstrate why these firings were illegal and unconstitutional, we must answer the following key questions:
First, did President Trump violate the law, more specifically the statutory protections in the CSRA, by removing the heads of the OSC and MSPB without good cause? Second, then, does the President have the constitutional power to ignore these limits set by Congress? Notably, this is the center of the debate regarding the removal of heads of independent agencies and, if proven, can provide deeper legal protections for agency heads. The final question is whether the OSC and MSPB count as independent agencies. In this section, I will prove why the answer to all these questions is yes.
- Were the President’s Actions Illegal under Existing Law?
On February 7, the Trump administration fired OSC Head Dellinger in a one sentence email: “On behalf of President Donald J. Trump, I am writing to inform you that your position as Special Counsel of the US Office of Special Counsel is terminated, effective immediately.” In essentially the same language just three days later, the White House sent an email to MSPB Chair Cathy Harris that she was also “terminated, effective immediately.” Notably, these removal notifications lack any justification for why either Dellinger or Harris are being fired. According to the CSRA, the heads of the OSC and MSPB can only be removed for cause, which is limited to “inefficiency, neglect of duty, or malfeasance.” This means that these officials cannot be removed simply because the President wishes to do so or because they inhibit his policy goals. In addition, under chapter 75 of title 5 of the law, before agencies remove employees, they must provide an advance written notice stating the specific reasons for the proposed action. The emails from President Trump neither provided these reasons nor justified them under the “for cause” requirements outlined in the CSRA. Instead, the Trump administration argued that Harris and Dellinger were executive branch employees that “fall squarely within the president’s removal power” under Article II of the Constitution. In other words, they claimed that the CSRA’s legal protections for board members are unconstitutional. Thus, it is evidently clear that even Trump’s staff and lawyers were willing to concede that their actions violated existing statutory laws surrounding removals for these agency heads.
- Does the President have Absolute Removal Power over Independent Agency Heads?
This question at the heart of these lawsuits surrounds whether the President has absolute power to remove all officials within the Executive Branch. To begin with, Article II, Section 3 of the Constitution states that Presidents have the direct authority to appoint executive officials, along with the consent of the Senate. The Constitution does not speak on the removal powers of the President and it has been interpreted through court precedent. The argument posited by Trump attorneys is that “because the entirety of the executive power is vested in the president, the president must be able to remove board members at will.”
However, this argument is not new or unique. The legal debate surrounding presidential removal powers has spanned several decades. The starting point of this debate was the case of Myers v. United States (1926), in which the Court considered whether President Woodrow Wilson could unilaterally remove a postmaster without Senate approval, which at the time was the requirement for removal. The Court held in this case that executive officials, such as postmasters, must be removable at will by the president. The duties of these officers are directly and solely tied to the execution of the law and the President is “vested” the Executive power through the Constitution. However, in the pivotal case of Humphrey’s Executor v. United States (1935), the Court carved a major exception to this rule. Similar to Myers, in the case, President Franklin Delano Roosevelt removed a commissioner from the Federal Trade Commission (FTC) without cause. However, in this case, the Court unanimously ruled against FDR, stating that FTC commissioners were not purely executive officers. Unlike a postmaster, they perform quasi-legislative and quasi-judicial functions and were expressly created to act independently of the executive. Thus, the Court created a distinction between purely executive and independent officials based on their function and the intent of Congress when establishing the agency.
The Court went even further in the case of Morrison v. Olson (1988) in which it ruled that even purely executive officers – independent counsel, in this case – could have good-cause removal protections, as long as they did not “impermissibly burden” the President’s power. Overall, the claim that the President has absolute removal power is not supported by the Constitution, statutory law, or legal precedent from the highest Court. Through a variety of cases, the Court has upheld Congress’s ability to protect certain officers from removal, especially those who work within a limited scope at independent agencies.
- Are OSC and MSPB Independent Agencies?
The final question is about whether OSC and MSPB fit the protected category created by Humphrey’s and reinforced in Morrison. As explained before, there are two key criteria that the Court has set for classifying an agency as independent: (1) Function and (2) Legislative Intent.
As it relates to function, both agencies engage in quasi-judicial functions that are distinct from the executive. The MSPB in particular operates like a court for federal employment disputes. They conduct hearings, examine evidence, and issue legal rulings. The OSC also performs quasi-judicial functions by evaluating claims related to prohibited personnel practices. Furthermore, Congress explicitly created these agencies to function independently. The MSPB has bipartisan membership requirements, which seek to insulate it from political biases and enable proper judicial proceedings. In addition, the OSC was separated from the MSPB in 1989 under the Whistleblower Protection Act (WPA) precisely to enable it to investigate wrongdoing without interference. Finally, these agencies do not have tremendous or widespread executive power. They primarily manage internal matters within the federal government, similar to an independent counsel, and therefore, their removal protections do not “impermissibly burden” the Executive.
Overall, we can conclude from the three questions that President Trump’s removal of the heads of the OSC and MSPB were both illegal and unconstitutional.
Counterargument
Yet, there are still lingering issues which Trump’s lawyers or the increasingly conservative Supreme Court could point to in defense of these removals. The most prominent defense would be the most-recent ruling of the Supreme Court in Seila Law LLC v. CFPB (2020), in which the Court ruled that the for-cause removal protections for the single director of the CFPB violated the separation of powers. The Court’s main argument was that this single CFPB director was novel and incompatible with the Constitution: he served a longer term than the President, had sweeping regulatory authority over private actors across the economy, and held singular concentrated power. Thus, some may argue that Seila Law reduced the insulation independent agencies have from removal and signals that Humprhey’s is bound to be overturned. However, this argument is not convincing as the decision in Seila Law was quite narrow in that it specifically indicted agencies with a single-director structure who exercise broad policy making powers. In fact, Chief Justice Roberts specifically noted that there were two exceptions to their rule: 1) agencies with quasi-legislative or judicial roles that mirrored the FTC and 2) inferior officers with limited duties. As such, the MSPB is a textbook example of a permissible exception; it is a multi-member board (not led by a single director), has no general regulatory authority, and clear quasi-judicial powers. The OSC is even more-fitting as the Majority in this decision specifically stated that the OSC was an example of a permissible agency due to its narrow mandate and function. Thus, the ruling in Seila Law does not implicate neither the MSPB nor the OSC.
Conclusion
Overall, President Trump’s mass firings of independent watchdogs represents an unprecedented assault and rapid expansion of executive powers. By following the legal precedent set in prior cases, the Court can realign and correct the excesses of this administration and protect the integrity of the civil service.