By Andrew C. McCarthy
Saturday, July 12, 2025
Fitting the now well-worn pattern, garment-rending has
commenced among the media-Democratic complex over the Supreme Court’s order on Tuesday, allowing the Trump administration to
proceed with its effort to reduce the size of the civilian federal workforce,
which numbers around 3 million.
Don’t read more into it than there is. The justices are
curbing judicial activism, not endorsing executive lawlessness.
All the Court has done is nullify an injunction that a
judge had no basis to issue. The judge had assumed that the administration
would act lawlessly even though it had not yet taken any concrete steps. The
justices, with only the progressive ideologue Justice Ketanji Brown Jackson
dissenting, took pains to say they were ruling not on any action the
administration might take, just that the judiciary had no business placing a
prior restraint on such action.
Shortly after taking office, President Trump issued an
executive order (EO 14210), the aim of which was to prepare for
implementation of his planned “optimization” of the workforce. The stated goal
was to maximize productivity (to get the required tasks accomplished with fewer
people), guided by the work being done at the time by the Department of
Government Efficiency (DOGE), then led by Elon Musk.
Notwithstanding the hysterical reporting, Trump’s EO
explicitly instructed that the Constitution and laws be followed. On this
score, we should note that the president’s objective is completely consistent
with congressional law.
Under federal statutes governing “executive
reorganization” (see Section 901 et seq. of Title 5, U.S. Code), Congress has
declared it the “policy of the United States” to, among other things, “increase
the efficiency of the operations of the Government,” “reduce expenditures and
promote economy to the fullest extent” that efficient operation can achieve,
“eliminate overlapping and duplication of effort,” and “reduce the number of
agencies by consolidating those having similar functions under a single head,
and . . . abolish such agencies or functions thereof as may not be necessary for
the efficient conduct of the Government.”
Compared to this statutory exhortation, the EO is modest.
It targets federal employees still in their probationary term and “reemployed
annuitants” (retired federal employees who are already receiving benefits and
are provisionally rehired to fill temporary gaps or train new employees). That
is, at least on paper, Trump is not seeking to provoke a constitutional
confrontation over whether the president, in whom all executive power is
vested, has authority to fire executive branch workers whose employment Congress
has purported to protect by statute.
Moreover, the EO stipulates that “reductions in force”
(RIFs) are to be accomplished mainly by attrition (e.g., a default assumption
that only one new employee will be hired for every four who retire), and that
RIF targets will be “offices that perform functions not mandated by statute or
other law.” That is, at least in this EO, Trump is not seeking to provoke a
confrontation over whether the president has the constitutional authority to
shutter executive agencies that Congress has established or to nullify tasks it
has assigned to the executive branch.
Statutes aside, Article II reposes all executive power in
the president, and Congress is not authorized to execute (just as the president
is not authorized to legislate). Hence presidents have constitutional authority
to organize the executive branch, to set executive priorities, and to reduce
the workforce and execute the missions Congress has assigned by using fewer
employees or less funding than Congress has appropriated. Having spent over a
quarter century of my professional life working for various federal agencies, I
can attest that RIFs are an occasional fact of life for government employees.
Trump and DOGE did not invent them.
Now, could an overhaul of the federal workforce get
legally dicey? Sure. The president could try to start firing employees who have
civil service protections, thus challenging Congress’s encroachment on his
capacity to control those who wield executive power. Or the president could so
marginalize the work of an executive agency that he might plausibly be said to
have nullified an entity and mission properly created by Congress. These would
be constitutionally fraught scenarios.
Similarly, it’s not hard to imagine a situation in which
an EO’s proviso that the actions ordered be taken “consistent with law” could
be mere lip service. That is, the president may say that his underlings
are expected to obey the law in carrying out his directives, but it could turn
out that those directives are themselves illegal, or that, even if arguably
legal, they are implemented illegally. (President Biden, for example, claimed that
his “parole” for various categories of illegal aliens was consistent with law,
even though it was utterly inconsistent with law.)
In short, many illegal things could happen. But
that doesn’t necessarily mean they will happen. Many executive orders in
Trump’s first term included the caveat that all implementing actions be
consistent with law; for the most part, they were.
The same thing could be said about Congress and the
judiciary — that is, Congress could pass a blatantly unconstitutional law. For
example, when President George W. Bush signed the 2002 Bipartisan Campaign
Reform Act (commonly known as “McCain-Feingold” after the two sponsoring
senators), he was aware of the high likelihood that several of its provisions
violated the First Amendment, as indeed the courts later found (see, e.g., Citizens
United v. FEC [2010]). It’s also always possible that judges could issue
blatantly unconstitutional orders; our editorial on Wednesday detailed just such an instance, when
an Obama-appointed judge purported to invalidate an indubitably constitutional
law prohibiting Medicaid funding for Planned Parenthood.
Still, such episodes are anomalies. We don’t assume that
government branches will act illegally. To the contrary, out of interbranch
comity, each branch of government should indulge the presumption that the other
two branches are acting legitimately, in good-faith regard for the Constitution
and other legal mandates. The presumption can be overcome, but it is rightly
the system’s default setting.
The president is entitled to no less a presumption of
legitimacy than Congress or the courts. Courts should never approach a case on
the operating assumption that a president or Congress has violated the law. And
because the jurisdiction of courts is limited to cases and controversies —
i.e., to concrete claims of real harm that are justiciable and redressable by
judicial action — judges should never even get to the question of whether a
presidential or congressional action was illegal unless there is a proper case
in which a claimant with standing can establish harm traceable to the alleged
illegality.
Yet, when the Trump administration began to implement EO
14210, laying off 10,000 Department of Health and Human Services employees in
April, a public sector union, the American Federation of Government Employees,
immediately filed suit in San Francisco — friendly climes for the union.
Naturally, the AFGE had the good fortune there of drawing a friendly jurist,
Judge Susan Illston, a senior Clinton appointee. Judge Illston promptly issued
a temporary injunction barring the Trump administration from carrying out
firings and a reorganization of the executive branch.
Judge Illston reasoned that, by statute, Congress has
mandated that reorganizations of the executive branch require congressional
consultation and approval. (See Section
903, part of the laws linked above under the heading, “Executive
Reorganization.”) This legislation is constitutionally questionable on
separation of powers grounds: It intrudes Congress into the president’s
management of the executive branch. But at this premature point, that was
neither here nor there because the Trump administration had not done
anything actionable yet (and it may not ever).
No concrete steps had been taken to accomplish an
overhaul of the executive branch. The Trump administration had just taken some
preliminary measures, including laying off workers the president had the
authority to lay off, in preparation for an eventual executive branch
reorganization. Even if we assume for argument’s sake that Congress must
approve an executive reorganization of any kind or extent — even one that does
not undertake to eliminate agencies and tasks created by Congress — the Trump
administration had not yet undertaken any such reorganization.
That is what the Supreme Court found. In their succinct
order, eight of the nine justices concluded that Judge Illston was wrong in
assuming that the EO and the manner in which the executive branch had thus far
implemented it were “unlawful.” Yet, in finding that the administration was
likely to succeed in its argument that the EO is lawful, the Court was careful
to qualify:
We express no view on the legality
of any Agency RIF and Reorganization Plan produced or approved pursuant to the
Executive Order and Memorandum. The District Court enjoined further
implementation or approval of the plans based on its view about the illegality
of the Executive Order and Memorandum, not on any assessment of the plans
themselves. Those plans are not before this Court.
Just so. And that’s why the Court’s most senior
progressive, Justice Sonia Sotomayor, implicitly upbraided Justice Jackson, her
like-minded colleague.
Yes, Sotomayor agreed with Jackson that “the President
cannot restructure federal agencies in a manner inconsistent with congressional
mandates.” Now, they could be wrong about that; it’s possible that Congress
could have violated separation-of-powers principles by mandating for itself a
role in managing the executive branch. For the moment, however, there is no
reason to suspect that Congress has overstepped its bounds any more than that
the president has.
As Sotomayor elaborated, the relevant EO directs
executive agencies to plan reorganizations and RIFs “consistent with applicable
law.” Right now, such plans are not before the Court, and therefore “we have no
occasion to consider whether they can and will be carried out consistent with
the constraints of law.”
In this order, as in Trump v. Casa Inc., the ruling invalidating
universal injunctions issued on the final day of the Court’s term, the justices
are trying to get a crucial point across to the lower courts: “Federal courts
do not exercise general oversight of the Executive Branch,” even if the
president is one whom progressive activists suspect of unconstitutional motives
and malevolent designs.
President Trump gets the benefit of the doubt. That’s not
a judgment of his trustworthiness but an acknowledgment that the American
people elected him. If he breaks the law, there may be comeuppance. But not
before.
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