DOJ Asserts Trump Hypothetically Has Power To Purge All Female Agency Heads, Or Those Over 40

The Trump Department of Justice asserted in court Tuesday that, under its theories, the President’s removal power is so all-encompassing that he could fire all female agency heads, as well as those over 40 years old. The startling admission came in response to a federal judge’s hypothetical. 

“Could the President decide that he wasn’t going to appoint or allow to remain in office any female heads of agencies or any heads over 40 years old?” Judge Karen Henderson, a Reagan appointee on the D.C. Circuit Court of Appeals, asked Deputy Assistant Attorney General Eric McArthur Tuesday in proceedings over the fired board members of two independent agencies.  

“I think that that would be within the President’s constitutional authority under the removal power,” he responded, adding that “there would be separate questions about whether that would violate other provisions of the Constitution.” 

Judge Justin Walker, a Trump appointee on the panel, then swooped in to try to salvage the moment, saying to the DOJ attorney that he didn’t think “you would have to go there,” pointing to the protections of the 14th Amendment. 

The stunning moment, two minutes into arguments over the firings of board members at the National Labor Relations Board and the Merit Systems Protection Board, encapsulated just how broadly Trump’s vision of presidential power sweeps. 

The DOJ is aiming to get these cases to the Supreme Court, where it’s betting that enough of the right-wing justices will agree to overturn the high court’s own precedent on independent agencies — encapsulated primarily in a 1936 case called Humphrey’s Executor — and axe the removal protections that keep leadership at such entities as the NLRB or MSPB insulated from political will or vindictiveness. If the DOJ wins, as many experts predict it will, the entire executive branch would come under Trump’s direct control, allowing him even greater power over federal policy, and leaving virtually no barriers to his mass firings of civil servants in favor of political stooges. 

At the district courts, before these two cases were consolidated, the proceedings were fairly rote: The judges acknowledged, one explicitly, that they were “speed bumps” en route to the Supreme Court and still bound, at least for now, by the precedent upholding these removal protections. 

Tuesday’s hearing at the appellate court unwound differently. Walker, the Trump appointee, and Judge Patricia Millet, an Obama appointee, sparred throughout, only barely directing their rebuttals to the lawyer instead of each other.

Millet took a posture more in line with how the district judges have handled the cases: Humphrey’s Executor — which upheld removal protections for certain multi-member agencies — is still good law, and the lower courts have no choice but to follow it.   

“Our test for whether the Supreme Court has gotten rid of something is pretty strict — we don’t get to treat it like some kind of Rorschach test and we see in it whatever we wish,” Millet said. “I’m just curious why the Justice Department thinks the courts of appeals have the ability to do what the Supreme Court itself has again and again expressly declined to do,” she added of overturning Humphrey’s Executor. 

Walker, though, all but subbed in as a DOJ lawyer, trying to find a way that the panel could rule in favor of the government despite the hulking obstacle of Supreme Court precedent.  

“Even when a precedent is binding, there’s often debate and difficulty about how broadly or narrowly to read it,” Walker said, arguing that subsequent cases have shrunk Humphrey’s Executor to the point of near-nonexistence. 

That line of argument prompted Millet to ask what agencies would still constitutionally retain their removal protections under such a microscopic reading of Humphrey’s Executor. The DOJ’s McArthur could only name the Administrative Conference of the United States, a purely advisory agency that produces recommendations to make the government operate more efficiently. 

Walker took the unitary executive theory, the vision of massive presidential power that underlies the DOJ’s posture, a step further. He brought up a separate case, where the Federal Mine Safety and Health Review Commission is arguing against the Secretary of Labor, to ask how, under the DOJ’s theory, federal courts can be allowed to get involved in an “intra-executive branch dispute.” The question, which McArthur largely dodged, is a striking one at a moment where federal courts have proved to be the sole backstop to Trump’s razing of the executive branch. 

Walker also took a shot at one of the district judges, who had called Trump’s firings “blatantly illegal,” saying that if the precedent ends up being overturned, it wouldn’t have been an illegal action retroactively. 

Henderson, the Reagan-appointed third judge on the panel and likely deciding vote, kept her cards closer to her chest. She expressed doubt about the injury caused to the fired board members, perhaps signaling low odds that the district court orders — which restored the board members to their jobs, at least temporarily — will be extended as the litigation proceeds. But she also expressed concern about the firings depriving these agencies of the quorums on their boards that they need to function. 

McArthur took a big swing in response, arguing that restoring the illegally fired board members would create a “heavy cloud of illegitimacy over every official act they take.”