Agency Firing Case Tees Up Trump Attack on Judicial Authority

The Trump administration’s legal defense of the firings of two independent agency officials includes a bid to narrow federal courts’ power to block White House efforts to expand executive reach if they’re found to be illegal or unconstitutional.

Even if President Donald Trump’s terminations of members of the National Labor Relations Board and Merit Systems Protection Board violated their removal protections, courts lack the authority to reinstate them, the administration has argued.

Republican-appointed judges on an influential appeals court endorsed the administration’s position earlier this week, signaling that it could find traction with the US Supreme Court’s conservative majority.

The question of courts’ remedial power takes on even greater significance as Trump pushes the boundaries of presidential power in myriad ways, including his claim of dominion over independent agencies, the attempt to cancel birthright citizenship, and openly talking about a third term in office.

Trump’s novel moves have been met with a wave of lawsuits, some of which have generated rulings curbing his actions, such as the April 7 decision permitting the fired NLRB and MSPB members to return to their respective agencies. The chief justice stayed that ruling Wednesday.

The president, his administration, and his allies have pushed back against the judiciary’s ability to check his claims to power, including calls to impeach judges and efforts to eliminate nationwide injunctions.

“It is quite likely that the administration’s next line of attack will be versions of what we see in the officer removal cases—arguments that the forms of judicial remedies that district courts are entering, namely injunctions, are beyond the authority or ‘equitable jurisdiction’ of the federal district courts,” said Andrea Olson, a Boston College law professor who focuses on civil procedure, remedies, and structural constitutional law.

Two-Part Theory

The Trump administration’s argument against federal courts’ remedial power has two prongs, pointing to a weakness of the judiciary and the power of the president.

Federal courts were wrong to order the reinstatement of Gwynne Wilcox to the NLRB and Cathy Harris to the MSPB because that exceeds what’s traditionally granted by courts of equity, the administration argued.

And although those orders targeted agency officials, they ultimately restrict Trump, who is immune from court injunctions in the performance of his official duties, the administration claimed.

“Regardless of whom the order formally applies to, and however styled, an order that has the effect of reinstating a principle executive officer removed by the President violates both Article II and the limits on a court’s equitable powers,” attorneys for the White House said in a brief.

The full US Court of Appeals for the District of Columbia Circuit’s opinion voiding a stay on the reinstatement orders didn’t comment on the administration’s remedial argument. But the four judges who dissented—including three who were appointed by Trump—backed the administration’s legal theory.

The argument follows threads from recent Supreme Court rulings, from the broad presidential immunity granted in Trump v. US to the use of Founding-era “history and tradition” to decide the validity of abortion rights and gun regulation.

Enjoining the President

Federal courts have avoided issuing injunctions against the president because of problems enforcing such an order under the threat of fining or jailing the president, legal scholars said.

“Courts can generally achieve much the same effect by enjoining agencies or other high-ranking officials, since most of the time a president’s orders and policies must be implemented by other people who may be subject to injunctions,” said Michael Morley, a Florida State University law professor who teaches and writes on constitutional law, remedies, and federal courts.

A prime example of that approach is the Supreme Court’s 1952 decision that blocked President Harry Truman’s seizure of steel mills. The high court upheld an injunction against the commerce secretary who Truman directed to take over the mills.

The Supreme Court hasn’t directly ruled on federal judicial power to enjoin the president, said James Pfander, a Northwestern University law professor who focuses on the role of courts in constitutional democracies.

The high court in 1867’s Mississippi v. Johnson refused to rule on a claim for injunctive relief against presidential action to implement Reconstruction-era laws, which was related to law enforcement duties, Pfander said. But the justices expressly reserved the question of remedial power related to the president’s obligation to perform a non-discretionary or ministerial act.

Wilcox and Harris’ argument that Trump lacks the discretion to remove them without cause “seeks to fit the case within that open space,” said Pfander, who joined an amicus brief backing the fired officials.

Going Back in Time

The second prong of the Trump administration’s argument—that ordering reinstatement exceeds courts’ equitable powers—flows from the Supreme Court’s 1999 decision in Grupo Mexicano de Desarrollo v. Alliance Bond Fund.

That 5-4 opinion authored by Justice Antonin Scalia held that courts’ discretion to fashion remedies based on equity is limited to what was available to the English Court of Chancery in the late 1700s.

But the Supreme Court has strayed from Gruppo in subsequent rulings, legal scholars said.

For example, the justices allowed the Securities and Exchange Commission to order disgorgement as an equitable remedy in a 2020 opinion that made clear that federal courts aren’t controlled by the technicalities of 18th century English chancery courts, said Tracy Thomas, a law professor and director of the University of Akron’s Center for Constitutional Law.

And even under the Gruppo standard, the Trump administration’s argument might not work because of the 18th century view that public officials had property rights over their offices, said Douglas Laycock, an emeritus law professor at the University of Virginia who’s written treatises on remedies.

But the lack of a precise historical record could benefit the administration.

“If conservatives on the Supreme Court want the argument to work, it would be easy for them because outside of a handful of legal historians, nobody knows what courts in England were doing in 1789,” Laycock said.