WaPo’s Lisa Rein (“How Trump is stretching laws to make the federal government more political“):
With a blizzard of executive orders, President Donald Trump has jump-started an extraordinary plan to transform the federal government into a leaner operation packed with his loyalists.
The fine print of those directives reveals how shrewdly the new administration is maneuvering — and sometimes outright ignoring — the arcane laws, rules and regulations that have long protected the civil service of 2.3 million from a political takeover.
Trump has skirted Biden-era rules by essentially declaring them unlawful, used probationary periods to place masses of civil servants in limbo and issued a memo lifting restrictions on hiring temporary political appointees to replace thousands of career employees. The White House has even declared that Trump can overrule a post-Watergate law to summarily fire senior executives and career prosecutors, citing a sweeping claim of executive authority.
Late Friday, when Trump ousted 17 federal watchdogs, he disregarded a statute requiring him to first provide 30 days’ notice and a performance-related justification to Congress.
White House directives also have instructed federal agencies to seek ways to bring employees back to the office even if union contracts guarantee work-from-home protections and announced plans to reinstate assessments for hiring that were thrown out by the Carter administration after lawsuits claimed they were discriminatory. And acting personnel officials have widely expanded the use of paid leave to push workers out — despite a bipartisan law seeking to curtail its use.
The executive actions, absent any legislation from the GOP-controlled Congress, already have had far-reaching effects, even if they face potential legal challenges. Thousands of staff members in diversity and inclusion programs are facing layoffs as soon as this week, thousands of other job offers have been rescinded in a government-wide hiring freeze, and gaping senior-level holes remain at numerous agencies because of purges and an exodus of experienced staff members.
The sweeping changes reflect Trump’s campaign pledge to “dismantle the deep state” by firing bureaucrats he blamed for thwarting his first-term agenda. His executive orders could transform an experienced, merit-based federal bureaucracy into one governed by employees with political allegiance to the Trump administration.
“These actions are opening much more of the civil service to be chosen by the Trump administration than would be usually seen during a change in administration,” said Kevin Owen, a Washington-area employment lawyer who represents federal employees.
In Trump’s first term, inexperience and chaos slowed much of his plan to weaken the civil service. But the barrage of eight executive orders and as many personnel memorandums in the opening days of his second term bears out how carefully his new administration prepared for this moment. Since Trump’s victory in November, his domestic policy team has raced to determine which interpretations of the law would be novel but legal, which might get the administration sued and which legal challenges they could accept, according to people familiar with their thinking.
“The administration is clearly better prepared this time than they were in 2016,” said Donald Moynihan, a civil service expert who teaches public policy at the University of Michigan. “They’ve been waiting for this moment, and their preparation is being turned into policy.”
Karoline Leavitt, Trump’s press secretary, said on Tuesday that the president’s broad executive power allows him to fire anyone in the executive branch. “We will win in court” on any legal challenges, she added.
Dan Froomkin (“The lawyers are getting louder – and they’re getting results“) begs to differ:
You can’t do that.
That’s the message that lawyers for the progressive advocacy community are sending Donald Trump loud and clear about at least nine things he’s trying to do.
Let’s start with the huge win on Tuesday night, as Democracy Forward won a court order temporarily blocking a White House freeze on billions of dollars in federal grants and loans.
He details nine other legal challenges that are filed or in the works, with surely more to come.
But the NYT’s Charlie Savage (“Defying Legal Limits, Trump Firings Set Up Tests That Could Expand His Power“) thinks getting sued is part of the strategy.
President Trump abruptly fired dozens of officials in the past few days — including inspectors general, a member of the National Labor Relations Board and career prosecutors — in ways that apparently violated federal laws, setting up the possibility of lawsuits.
But the prospect of getting dragged into court may be exactly what Mr. Trump’s lawyers are hoping for. There is a risk that judges may determine that some of the dismissals were illegal, but any rulings in the president’s favor would establish precedents that would expand presidential power to control the federal government.
Some legal experts say the purges underway appear to be custom-made opportunities for the Supreme Court’s Republican-appointed majority to strike down the statutes any legal challenges would be based on, furthering its trend in recent years of expanding presidential authority.
“On one level, this seems designed to invite courts to push back because much of it is illegal and the overall message is a boundless view of executive power,” said Jack Goldsmith, a Harvard law professor who led the Justice Department’s Office of Legal Counsel in the Bush administration. “But really, they are clearly setting up test cases.”
Five of the nine Supreme Court justices worked as executive branch lawyers during the Reagan and George W. Bush administrations. Their legal teams were both defined by an expansive view of executive power, including developing theories of the Constitution that would invalidate congressional restrictions on the White House.
The rest of Savage’s analysis is about the so-called Unitary Executive Theory and the degree to which some of the Justices may be predisposed to it. We’ve batted that one around quite a bit over the last few years.
I’ve largely given up predicting what this Supreme Court will do now that it has abandoned the pretense of following well-established precedent, the bedrock of a common law system. Still, I simply don’t know where he would get the legal authority to do most of the things he’s ordering.
Even if Presidents are immune from criminal prosecution for official acts, they and their officials are still bound by the Constitution and applicable federal laws.
Congress passes budgets and authorizes spending. If Presidents can simply spend the money however they wish, deciding not to fund programs for which Congress has appropriated them and instead fund programs Congress hasn’t authorized, the Power of the Purse is meaningless. We wouldn’t have to have government shutdowns or worry about the debt ceiling, either, since the Executive branch pretty much is “the government” from an administrative point of view.
Similarly, all of the agencies of the Executive Branch are manifestations of Congress’ authority. They are all created by Acts of Congress and funded by Congressional appropriations withing the limits of Congressional authorizations. If the President can simply order the laws to be ignored, the entire arrangement is meaningless.
