The Legality of the Friday Night Massacre

David Super

      Late Friday, the Trump Administration reportedly fired four thousand federal employees.  Details remain sparse at this writing, which is a problem in its own right.  Nonetheless, it appears that, among other things, the Administration gutted the Centers for Disease Prevention and Control (CDC) and eliminated the Office of Special Education.  It also reportedly devastated the Community Development Financial Institutions (CDFI) Fund.  The CDFI Fund is notable as one of the few programs for which congressional Republicans have been willing to publicly advocate with the Administration, presumably because it serves economically disadvantaged areas in both red and blue states. 

      Friday’s firings, of course, come on top of the large personnel reductions made at the behest of Elon Musk’s “Department of Government Efficiency”, the large number of departures resulting from federal employees opting to leave in response to the “fork in the road” message this Spring, and the on-going, lower-profile staff reductions being made across the federal government. 

      Examining the legality of these moves is important in its own right.  It also provides a useful window on what is happening with the Administration’s on-going war on the Rule of Law.  These actions are legally dubious on four different grounds.  Not every action is problematic under all four bases, but some might well be. 

      First, the very action of firing federal employees during a lapse in appropriations likely violates the Anti-Deficiency Act.  The Act prohibits the federal government from incurring obligations or accepting voluntary services without an appropriation for the funds involved.  It provides a narrow exception “for emergencies involving the safety of human life or the protection of property” but makes clear that this exception “does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.”  Firing federal employees does not remotely fall within that exception; through numerous past lapses in appropriations, temporarily unpaid furloughs have fully met the Act’s requirements. 

      The Administration appears to be arguing that these actions are implicitly exempt from the Anti-Deficiency Act, and from the Appropriations Clause that the Act enforces, because they are activities of the President.  Leaving aside the complicated questions that this theory raises even in more plausible applications, these layoffs are hardly actions of the President.  He did not sign or send any layoff notices.  They are actions of the Executive Branch, and the Unified Executive Theory may maintain that all actions of the Executive Branch are actions of the President.  But this theory would prove far too much:  the vast majority of what the federal government does is conducted by the Executive Branch (and much of the rest is done by Congress or the courts, both of which also have constitutional status).  This theory essentially dissolves the Appropriations Clause. 

      Nonetheless, under this Administration, the fact that undertaking these layoffs is likely unlawful during a lapse in appropriations is far less significant than one might hope.  Violations of the Anti-Deficiency Act are felonies, but nobody paying the least bit of attention believes that this Justice Department would care in the slightest.  Indeed, the Department may well have violated the Act in doing the work necessary to indict Letitia James during a lapse in appropriations.  Violations also subject federal officials to adverse personnel actions, but President Trump has brought the Office of Personnel Management so thoroughly to heel that surely none will be taken.  We may debate whether the Supreme Court’s convoluted standing and private right of action jurisprudence would allow federal workers to challenge their firings on this basis. 

      Second, some of these firings might be illegal impoundments of appropriated funds where unexpired appropriations remain available to pay the terminated employees.  In many other instances, these firings likely are preparatory to illegally impounding funds Congress is likely to appropriate in the future – indeed, funds that would be appropriated under the House-passed continuing resolution that Republicans keep demanding Democrats accept.  Many affected agencies spend a large share of their appropriations on staff salaries, and with much of the staff gone, the Administration will have little productive way to spend the appropriated funds. 

      Here again, however, illegality does not equal remediability.  The Supreme Court has rejected the standing of a union and non-profit organizations to challenge the legality of layoffs.  The Court’s cryptic opinion leaves it unclear whether other intended beneficiaries of government employees’ work might have standing.  The Court also has repeatedly found that requiring the federal government to make expenditures during the pendency of an action, even after having lost in a lower court, would harm the Government more than making the intended beneficiaries of those funds wait months or years to be paid.  A Trump-appointed district judge has held that government employees challenging the legality of their firings must first present their cases to the Merit Systems Protection Board, even though that agency has lacked the quorum necessary to act since President Trump illegally fired its only Democratic member.  Finally, because the same appropriations accounts commonly include both salaries and travel expenses, the Administration might try to burn off appropriations for salaries through opulent, unnecessary junkets. 

      Third, this action likely violates numerous permanent laws creating, and assigning duties to. the agencies affected.  For example, Congress has found “that the Centers for Disease Control and Prevention has an essential role in defending against and combatting public health threats domestically and abroad”.  CDC obviously cannot do so if its staff has been gutted.  Similarly, Congress established the Office of Special Education Programs and required that it “shall be the principal agency in the Department for administering and carrying out [the Individuals with Disabilities Education Act] and other programs and activities concerning the education of children with disabilities.”  That cannot happen if the office has lost its crucial staff.  Here again, however, the Supreme Court’s restrictive view of standing and its unwillingness to allow preliminary relief that could require the Government to spend money, even money Congress has required it to spend, may render this illegality practically irrelevant. 

      Finally, this action likely violates several Civil Service laws.  Most obviously, the Administration does not appear even to have tried to comply with the statutory requirement of 60 days’ notice.  (Some reports suggest that the Administration is making some of these firings effective in sixty days.  If so, they would comply with one statute but strain even further the argument that these firings are emergencies qualifying for the Anti-Deficiency Act’s exception.  And they raise further questions about the legality of the Administration committing to the costs of severance when no appropriation is available to pay those costs.)  Given how chaotic this Administration’s past firings have been, one could reasonably ask whether they have complied with laws establishing criteria for determining which individual employees should be fired, setting out the contents of the required notice, procedures for considering employees’ performance in making these decisions, requirements to consult with federal employees’ unions, and prohibitions on the politicization of the Civil Service, among others.  Here again, however, if the Supreme Court insists that these violations be pursued through the quorum-less MSPB, the law is again practically meaningless. 

      Several other actions the Administration has taken recently, such as suggesting that it will continue to pay members of the Armed Forces during the lapse in appropriations but refuse to follow the clear law requiring prompt retroactive payments to furloughed federal workers, may find similarly little legal support.  But, again, with the Supreme Court having largely closed the door to the courts, and with the Justice Department having abandoned its traditional role promoting compliance with law, few effective legal constraints remain on this Administration. 

      For many decades, laws such as those referenced above were enforced by career staff at the Justice Department and in agencies’ general counsels’ offices.  Political appointees theoretically could overrule these attorneys, but doing so was thought to be so scandalous that few dared.  This led to considerable complacency by courts, members of Congress, and the electorate as a whole. 

      It now appears that both the U.S. Code and the U.S. Reports contain significant volumes of quasi-law, principles established by the enactment of laws or the rendering of judicial decisions but that a sufficiently willful administration is practically free to ignore.  Numerous presumptions of administrative regularity are, in fact, de facto delegations to career civil servants, particularly those in general counsels’ offices whom courts have long assumed would be consulted on important matters.  These officials were crucial force-multipliers for the courts, allowing the latter to speak in more muted tones. 

      Now that many such officials have been removed, those that remain are being held to standards of political loyalty, and many of the most important decisions do not appear to be getting vetted at all, the courts’ delegation has collapsed.  An Originalist Supreme Court likely should not have accepted those delegations of responsibility in the first place. It certainly has little justification continuing to apply these ad hoc rules of deference after their entire rationale has disappeared. 

      Most immediately, the more the Administration blatantly violates existing law, the less plausible its arguments that Democrats should end the appropriations lapse (“partial government shutdown”) on the Administration’s terms.  As the Administration demonstrates that neither its words nor those in statutes will effectively constrain its actions, Democrats are increasingly forced to insist on the bluntest possible legislative language in any continuing appropriation. 

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