Trump firings tee up broader legal clash over congressional power

WASHINGTON — President Donald Trump’s firing of inspectors general and independent agency board members in the last week sets up another major legal clash over Congress’ power to put limits on the removal of federal officials, experts said.

Since Friday, Trump removed more than a dozen inspectors general and Democratic members of the Equal Employment Opportunity Commission and National Labor Relations Board, which Democrats and experts have criticized as violating legal protections on their removal.

Andrea Katz, an associate professor of law at Washington University in St. Louis who specializes in administrative agencies, said the firings appear to be “deliberately violating the law to provide a test case” to see if the Supreme Court will side with his efforts to control the executive branch.

“This is a very precarious moment for the legislative power, with the courts potentially kneecapping Congress’ ability to legislate what the executive branch can do,” Katz said.

Trump appears to be betting that the Supreme Court, currently controlled 6-3 by Republican appointees, will continue along a line of reasoning in prior cases where they expressed skepticism on limits Congress placed on the president’s control of the executive branch.

In the prime example, the Supreme Court ruled in a 2020 decision, Seila Law v. Consumer Financial Protection Bureau, that the president could remove the director of the CFPB at-will.

Congress had set up the CFPB as an independent agency in the wake of the 2008 financial crisis, putting in place a single director whom the president could only fire for cause.

“It is a conflict with the president and Congress, and the Supreme Court has gestured at the idea that it has taken the president’s side in that conflict,” Katz said.

Under existing law, Trump has the authority to remove members for cause at agencies across the federal government, including the NLRB, EEOC, Federal Trade Commission and Federal Communications Commission.

Allowing Trump to remove agency board members at-will would give him more direct control over agencies.

In this second presidential term, Trump already has fired NLRB member Gwynne Wilcox and EEOC members Charlotte Burrows and Jocelyn Samuels. The firings bring both agencies below the legal quorum requirement to issue decisions.

In addition, the administration fired more than a dozen inspectors general and career prosecutors who worked on the criminal cases against Trump before he won the election.

Federal law provides protection for federal employees and a 2022 law requires that the president gives a 30-day notice to Congress before removing an inspector general.

Kathryn Newcomer, a professor of public policy at George Washington University, said the inspector general and other firings appeared to violate the removal protections Congress put in place.

“Come on Congress, what are you going to do? Stand back and give up your power?” Newcomer said. “I certainly hope that at least the Senate will step up and say we have to have protections here.”

White House strategy

White House Press Secretary Karoline Leavitt defended those actions, arguing that the president has the authority to fire anyone working for the executive branch when asked about the decision to fire inspectors general and career prosecutors.

“He is the executive of the executive branch, and therefore he has the power to fire anyone within the executive branch that he wishes to,” Leavitt said.

Leavitt further said the administration believes they’ll win in court if they face a legal challenge.

Sen. Elizabeth Warren, D-Mass., and other Democrats said the firings represented a dangerous effort from Trump to take control of the executive branch. “That’s what Trump is driving toward, to have control over everything, and no one anywhere has any control over him,” Warren said.

Several Democrats, including Warren, said Congress should take steps to push back on Trump’s assertions of power, but that would require at least some Republican support.

“Trump doesn’t want any checks on his power. The Supreme Court has given him a big step in that direction, but Congress has not. We need to hold the line on enforcing the laws as written,” Warren said.

Republicans have offered little resistance to Trump’s shakeups. On Monday, Speaker Mike Johnson defended the decision to fire the inspectors general, despite the apparent violation of the law requiring notice.

“Sometimes you need a fresh view,” Johnson said. “Sometimes you have to begin a new page and start with a fresh start.”

In a letter on Tuesday, Judiciary Chairman Charles E. Grassley, R-Iowa, and ranking member Richard J. Durbin, D-Ill., sent a letter to Trump seeking an explanation for the inspector general firings when Congress was not notified.

“While IGs aren’t immune from committing acts requiring their removal, and they can be removed by the president, the law must be followed,” the letter said.

On Wednesday, Durbin said they haven’t received any word back from the White House on the issue.

Sen. Josh Hawley, R-Mo., defended Trump’s firing of a member of the National Labor Relations Board without stating the reasons for the firing, which he said sets up a legal battle over Trump’s control over independent agencies.

“Almost every president thinks they ought to have more control over the administrative state, and most of the time, Congress thinks they ought to have less,” Hawley said.

Thomas Berry, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, said the firings appear to set up a Supreme Court confrontation over the president’s control over independent agencies “assuming both sides stay geared up for a fight.”

Berry said the justices have avoided cases on the president’s ability to remove board members for years. The Cato Institute has unsuccessfully asked the Supreme Court to take up the issue before, including earlier this term in a case called FCC v. Consumer Research.

“I don’t think the Constitution’s original design was meant to have these quasi-executive, quasi-judicial bodies operating independent of the president,” Berry said. “The way the Constitution was designed, those checks should be coming from outside the executive branch.”

Katz said conservatives upset about the growing size of the federal government have adopted a strategy asserting the president’s power over the executive branch in order to have enough authority to cut it down.

“The second Trump administration is the most full-fledged iteration of that Nixonian strategy that we have ever seen,” Katz said. “Really, in a way that almost cuts Congress out of the equation.”

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