SCOTUS Allows Mass Firings, For Now
An odd, impactful ruling.
NYT (“Supreme Court Clears Way for Mass Firings at Federal Agencies“):
The Trump administration can move forward with plans to slash the federal work force and dismantle federal agencies, the Supreme Court announced on Tuesday. The decision could result in job losses for tens of thousands of employees at agencies including the Departments of Housing and Urban Development, State and Treasury.
The order, which lifted a lower court’s ruling that had blocked mass layoffs, was unsigned and did not include a vote count. That is typical in such emergency applications. Justice Ketanji Brown Jackson wrote a public dissent.
The case represents a key test of the extent of President Trump’s power to reorganize the government without input from Congress. The justices’ order is technically only temporary, guiding how the administration can proceed while the challenge to Mr. Trump’s plans continues. But in practice, it means he is free to pursue his restructuring plans, even if judges later determine that they exceed presidential power.
In a two-paragraph order, the justices wrote that they had concluded that “the government is likely to succeed on its argument” that President Trump’s executive order announcing plans to downsize the government was legal. The justices added that they had not expressed a view on the legality of specific layoffs or reorganizations by the Trump administration.
[…]
Although the vote count was not listed, the order included a short public concurrence by Justice Sonia Sotomayor, one of the court’s three liberals, suggesting broad agreement among the justices on the outcome. Justice Sotomayor wrote that she agreed with the court’s decision, but she added that the trial court was “free to consider” the legality of the specifics of the Trump administration’s downsizing plans.
In a 15-page dissent, Justice Jackson sharply criticized the court’s decision, calling it “not only truly unfortunate but also hubristic and senseless” and arguing that it undercut the authority of trial court judges.
“It is not this court’s role to swoop in and second-guess a lower court’s factual findings,” Justice Jackson wrote, echoing her dissent last month in the case limiting the power of lower-court judges to block administration policies nationwide.
She said that “no one seriously disputes” that the president’s executive order would “lead to enormous real-world consequences,” including “the dismantling of much of the federal government as Congress has created it.”
“What one person (or president) might call bureaucratic bloat is a farmer’s prospect for a healthy crop, a coal miner’s chance to breathe free from black lung, or a preschooler’s opportunity to learn in a safe environment,” she wrote.
Jackson’s consequentialist argument is bizarre coming from a Supreme Court Justice. Either the President has the power to do a thing or he doesn’t. Whether the thing amounts to good public policy is not for the judiciary to decide.
But she’s absolutely right as to the core issue: Congress sets the size of the agencies via their annual budget authorizations and it’s highly unusual, to say the least, for the Supreme Court to overturn a lower court’s finding on the facts while simultaneously not ruling on the facts.
The fact that Sotomayor was on board with the ruling certainly undercuts the instinct that this is simply a Republican-dominated court bending to the wishes of a Republican President. Her concurrence, in full:
I agree with JUSTICE JACKSON that the President cannot restructure federal agencies in a manner inconsistent with congressional mandates. See post, at 13. Here, however, the relevant Executive Order directs agencies to plan reorganizations and reductions in force “consistent with applicable law,” App. to Application for Stay 2a, and the resulting joint memorandum from the Office of Management and Budget and Office of Personnel Management reiterates as much. The plans themselves are not before this Court, at this stage, and we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law. I join the Court’s stay because it leaves the District Court free to consider those questions in the first instance.
Here, I’m well beyond my limited legal expertise. But it seems to me that continuing the stay until the matter could be adjudicated was the wiser course. The damage suffered by the President in having to wait a few months to carry out a hastily-considered force reduction is de minimis. The damage suffered to the workers and the agencies themselves in having them carried out, quite possibly illegally, is significant. Putting Humpty Dumpty back together again is a considerably more difficult task than waiting to push him off the wall.
As a NYT analysis (“Trump Got the Green Light to Fire Federal Workers. Now, They Wait.“) notes:
If courts ultimately find that the layoffs are illegal, federal workers would receive a minimum of back pay for the period when they had been illegally terminated, according to Nick Bednar, an administrative law expert at the University of Minnesota.
In these situations, employees may be entitled to get their jobs back. But the cases could drag on for so long that the government would be reorganized by the time a decision comes. There may not be jobs for the fired employees to go back to.
As it is, several agencies have been shuttered—again, quite possibly illegally—and others considerably hobbled.
Since Mr. Trump called for widespread layoffs in an executive order, thousands of federal workers have decided to leave the government, accepting early retirement incentives to avoid the stress of waiting to learn their fates. This, too, has changed the calculations for layoffs across agencies.
On Monday, Doug Collins, the veterans affairs secretary, said that his agency would not need to conduct widespread layoffs because 17,000 employees had resigned since January. Mr. Collins added that the agency expected another 12,000 people to resign or retire by the end of September.
Tom Yazdgerdi, the president of the American Foreign Service Association, said he was concerned that the State Department would announce more layoffs beyond the 1,900 it had previously disclosed to Congress.
“With this Supreme Court decision, the administration now has a green light to hobble the diplomatic work force in real time,” he said. “While we don’t know the exact numbers as yet, this shortsighted move will inflict lasting damage on America’s diplomatic capacity and our foreign service work force, which is already stretched thin.”
It will take decades to undo this damage. And, if the courts rule that a sitting President can do this whenever he wants, I don’t know why anyone with a decent alternative option would start a career under those conditions.
You covered this later in the piece but the core element of this case is that the Justices let Trump proceed while still being adjudicated in the courts. I don’t understand the logic where irreversible actions are taken which may later be declared illegal. The same logic is being applied to some of the immigration cases. I don’t get it.
Do you think Chief Justice Taney, er, Roberts has considered that everyone who works for him – all his law clerks and secretaries and whatnot – are federal employees who now can be dismissed at the president’s whim? The people who keep the air conditioning running, the people who cook his food and empty his trash bins, all federal employees. Trump could literally eliminate the entire American federal legal system and erase an entire branch of government.
Trump’s legal modus operandi has always been to (1) do what he wants to do, (2) sue (or be sued), (3) use the courts to grind down the other party, and/or run out the clock. It’s one thing to thoughtfully and systematically reduce the federal workforce, but it is an altogether different thing to make capricious cuts while simultaneously bullying employees into resignation. As VP, Al Gore oversaw a reduction in the federal workforce, but he did it over time and in consultation with management. So it certainly can be done both smartly and legally. Trump wants no restrictions, and John Effin’ Roberts, steeped in the unitary executive bullshit that arises whenever there is a Republican president, is willing to green light the action until it is a fait accompli, and Trump *wins* even if a court ultimately decides the action was illegal. So yes, a decent SCOTUS would have kept the stay in place precisely because the irreparable harm is to federal workers, not to Trump. Jackson doesn’t have the same blinders Sotomayor is wearing
I think the issue of consequence is judicially relevant in terms of whether temporary stays should be lifted or not as a case makes it way through the courts.
If the consequences are essentially irreversible in practical terms, then keeping the status quo ante in place before all is resolved strikes me as a more judicious (and even conservative) than allowing the destructive outcome when the ultimate legal matters remain unresolved.
This strikes me as especially true the more radical the orders are.
I find Sotomayor’s hope that all of this is being done within the scope of established law to be quaint and a bit naive.
If checks and balances, as a constitutional theory, were to make sure that various institutions guarded their institutional power jealousy, it is failing before our eyes as SCOTUS continues to gut the power of lower courts and to empower the executive at the expense of the legislative.
And hence, maybe some consideration of the consequences of all of this is warranted, yes?
@Michael Reynolds: I know that both Congress and the judiciary have employees that are directly part of that branch, and thus not subject to presidential firing. But I don’t offhand know what percentage of SCOTUS employees are in that category.
@Steven L. Taylor: @Steven L. Taylor: As noted later in the piece, we agree on this. The potential harm from allowing the action to proceed is always a consideration in whether to grant a temporary stay. That’s absolutely within the realm of judicial concern.
I was referring to the last paragraph of the excerpt:
Those are pure policy considerations. The question here is whether Congress or the President gets to make these calls. And it seems obvious to me it should be the former.
Clinton and Gore privatized almost all those jobs 30 years ago. They were the first to be “Reinvented”. I expect most kept were moved to contract as people retired. At best you have a couple facilities managers who oversee the janitorial and maintenance contracts and likely just a contract officer who manages the food service franchise contract.
So I guess Congress no longer has the power of the purse, since the Supreme Court now says its OK for the President to decide what does or doesn’t get funded…?
@Steven L. Taylor:
Think of this statement as an object lesson in what I was referring to yesterday in transmogrifying moral decisions into merely legal ones. Justice?
@Steven L. Taylor: Indeed, that would be desirable. But it’s unlikely to happen and a plurality of the electorate was willing to trade over egg prices.
ETA: And the expulsion of 10 million “worst of the worst” who are guilty of having the wrong skin tone.
ETA 2: “And it seems obvious to me it should be the former.” And a plurality of the voters overruled you. (This is becoming a theme, so I’ll revert to lurking here.)
@Kingdaddy:
What’s infuriating about these cases is that, thus far, they have specifically NOT ruled on that. Rather, they’re allowing POTUS to exercise unprecedented powers by declining to allow lower court judges to stop him from doing it while sidestepping the core issue at hand.
@just nutha: The Congress and President are elected to make policy. Right now, Congress is run by Republicans, who are willing to abdicate their responsibility to advance the President’s agenda. The courts are not elected and not supposed to be in the business of making policy. Rather, they’re supposed to ensure that the elected branches follow the Constitution and federal law.
This court is basically just an ivory tower debating society, hand-waving real world impacts aside as they admire their own philosophical theories. Most of them are cowards who don’t want any responsibility for the impacts of their decisions and very willing to pretend that such impacts either don’t exist or simply not their problem. Whether it’s naivete or arrogance, a whole string of decisions dating back to Citizens United shows a terrifying lack of awareness of what is actually happening in the world, and they have no interest in even acknowledging their blind spot, let alone fixing it.
@James Joyner:
Agreed. And we do largely agree here.
I am less allergic than I think you are to judges inserting some level of evaluation of the policy consequences of their decisions.
If the system really is one of rulemaking, rule execution, and straightforward rule adjudication, I could see always punting back to the rulemakers, but the system has never been purely that, and I think fantasies (see, e.g., John Roberts) to that end are part of why we are where we are.
@James Joyner:
I have long thought, even in my more conservative days, that the courts are part of the policy-making process.
How the Court interpreted the 14th Amendment Plessy was part of the policy-making process, as was how they reinterpreted it in Brown.
It has never been just balls and strikes.
@Steven L. Taylor:
Indeed.
Moreover, evaluating whether the other two branches are following the Constitution or established statute often requires analysis of consequences.
Otherwise, clever language or action can reach a desired result while remaining on-its-face Constitutional or legal.
Moreover . . .
I’ve always wondered about this metaphor. How Justice Roberts meant it. How it is perceived by the public.
I suspect Roberts was trying to convey that SCOTUS is neutral. But that is misleading. Even if we assume that umpires are neutral wrt to the two teams,* the strike zone itself is not static. Different umpires have different strike zones, individual umpires vary somewhat even within games and more between games, and the strike zone is contingent upon a bunch of other factors separate from the umpire, e.g. batting stance, time of day, score/inning.
The strike zone may be defined by the rules, but it is inherently subjective.
So was Roberts conceding that the judiciary is subjective, but maintaining that it is neutral wrt to the parties?
Was he acknowledging that it is not neutral at all?
Was he being evasive by using a figure most people would see as neutral but are in practice not neutral at
*Not even a safe assumption, there is clear animosity at times between individual players and specific umpires. IIRC, the year after the Astros scandal broke, opposing teams got a bit of extra leeway with inside pitches.
Beyond that, perhaps most importantly, the individual teams don’t nominate umpires.
@Kurtz: Indeed all around.