Trump knocks watchdog agencies, other checks on executive power : NPR

It was past Cathy Harris’ bedtime when an email arrived in her inbox on February 10 from someone in the presidential personnel office. She opened it the following morning. It was brief and to the point.

“Thank you for your service. You know, you’re fired, basically,” Harris said, summarizing the missive.

President Trump was attempting to remove Harris from her seat on the Merit Systems Protection Board, an independent, quasi-judicial agency that hears federal employees’ appeals of personnel actions taken by the government. The email came despite the fact that Harris’ term was not set to expire until 2028, and despite a federal law that dictates board members can only be fired for cause, such as inefficiency, malfeasance or neglect of duty.

“It was so obviously against the law,” said Harris, an appointee to the board of former President Joe Biden.

She sued the Trump administration and was briefly reinstated — twice. But the Trump administration appealed, and in late May, the Supreme Court handed the administration a win, issuing an emergency order allowing her firing to stand while litigation continues.

Eight months into his second term, it’s clear that Trump is not just draining the swamp, firing bureaucrats he sees as problematic. He’s upending entire systems and knocking down checks on presidential power.

Along the way, his administration has racked up more than 300 lawsuits, a number of which will end up at the Supreme Court. A decisive legal victory for Trump in a case like Harris’ could bring monumental change to government, beyond anything the country has seen in more than a century.

A firing at a ‘good government’ agency

That Trump chose to fire a member of the Merit Systems Protection Board is significant. The agency, little-known outside the government, was created by Congress as part of the Civil Service Reform Act of 1978 to ensure that federal employees are protected against abuses by agency management.

“We are one of a few agencies that I call the good government agencies,” said Harris, who, prior to serving as a board member, spent more than 20 years at a law firm representing both federal employees and federal agencies before the board.

The board is staffed by administrative judges, who hear cases, and headed by three board members, who act as appellate judges. The board members are nominated by the president and confirmed by the Senate to serve seven-year terms. No more than two of them can be from the same political party, and they can only be fired for cause, according to rules set by Congress.

Given this setup, the Merit Systems Protection Board has long been referred to as an independent agency, existing within the executive branch but with some degree of independence from the White House. Now that’s in question.

Harris said her firing doesn’t send a good signal to those bringing cases before the board.

“If you know that the president can fire the board members at any time for no reason at all, is that going to impact the board members’ decision-making?” she said. “I hope it wouldn’t, but I think it could.”

The Supreme Court’s views on presidential power

Harris’ case is one of a number of cases currently in litigation that pose a key question: How much say does the President have over staffing within the executive branch?

The Supreme Court’s conservative majority provided a window into its present thinking on the matter, writing in an emergency order in Harris’ case: “Because the Constitution vests the executive power in the President, see Art. II, §1, cl. 1, he may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions.”

While this decision is not the final word on the matter, lawyers close to the Trump administration are confident the president will prevail.

“There’s a, I think, quite a strong Article II argument that the president has the authority to remove anybody who wields basically any modicum of authority,” said James Burnham, an attorney who served in the first Trump administration and as general counsel for Trump’s Department of Government Efficiency until June.

“Anyone who is wielding his power, who’s wielding derivative executive power that comes from the president, needs to be removable at will, because if they have for-cause protections, then they basically cannot be fully and properly supervised,” he said.

Harris resoundingly rejected this argument.

“Our country is built on a separation of powers, a balance of powers, and when you give the president unfettered power, you’re taking away the power from Congress. Congress put me in this job,” she said. “The president can pick his lawyers, but he can’t pick who’s going to judge cases.”

A president willing to exert his authority

Under the logic that the Trump administration is pushing in court, only those who do not exercise federal power over regulating the public in any meaningful way could permissibly have removal protections, said Burnham.

“One example would be very low level people — the receptionist in the U.S. Attorney’s Office,” he said.

Burnham acknowledged that this view represents a departure from the past.

“I don’t know that you’ve had past presidents that were as willing to exert their authority in this way,” he said, including Trump himself in his first term.

Burnham said something changed in the four years after Trump first left the White House: the fact that the Biden administration tried to put Trump in prison.

Federal prosecutors brought two separate criminal cases against Trump, for mishandling classified documents in Florida and trying to overturn the results of the 2020 election in Washington, D.C.

Both those cases have been dropped, but Trump has not forgotten them.

This year, soon after Trump took office, the Justice Department moved to fire government attorneys and other staff members involved in the prosecutions of the former president.

A question of independence

Trump’s firings have also extended to watchdogs known as inspectors general, who investigate reports of waste, fraud and abuse within their agencies, as well as heads of independent agencies beyond the Merit Systems Protection Board, including the Federal Trade Commission, the Equal Employment Opportunity Commission, and the National Labor Relations Board.

Asked whether these agencies should no longer be called independent if Trump is allowed to fire their members for any reason, Burnham said he doesn’t think they’ve ever been independent.

“The removal protections have been unconstitutional from the beginning,” he said.

This question — whether Trump can in fact remove all these people — is likely going to get a full hearing before the Supreme Court in the coming months. The decisions the court issued so far are emergency stays, meant to be temporary.

But even if the Supreme Court goes another way once it hears arguments in the cases, it’s hard to see how you put things back together, now that so many people have been removed, the players on both sides said.

“I think the president would say that that’s a virtue,” said Burnham. “But I also think that the administration is extremely likely to prevail at the Supreme Court on all the issues where they’ve issued stays so far.”

The Office of Special Counsel is independent no more

Already, even without a Supreme Court decision, one watchdog agency has lost its independence.

The Office of Special Counsel, a role created by Congress nearly 50 years ago alongside the Merit Systems Protection Board, investigates claims about wrongdoing in the government, including whistleblower complaints.

The Office of Special Counsel is a separate entity from the special counsels appointed by the Justice Department.

Hampton Dellinger, who was appointed Special Counsel by Biden and confirmed by the Senate in 2024, was investigating the Trump administration’s mass firings of probationary employees when Trump fired him on February 7.

With four years left in his term, Dellinger sued to get his job back and was briefly reinstated by a lower court. Shortly thereafter, an appeals court lifted that reinstatement order, citing a Supreme Court decision that found the president has power over agencies like his that are led by one person rather than a bipartisan board.

Rather than fight on from the sidelines, Dellinger ended his legal battle.

Since then, the office has been led by acting Special Counsels, first the Secretary of Veterans Affairs Doug Collins and now the U.S. Trade Representative Jamieson Greer.

“At the end of the day, that office is run by a single person. That was the decision by Congress. And that person now is at the beck and call of the president of the United States,” said Dellinger. “So it can no longer be called independent, and I don’t believe … it can still be considered a safe place for whistleblowers to go to.”

Dellinger said it was never easy to be a whistleblower, and now it’s harder than ever.

“It used to be in the past that if you were a federal employee and you broke the law, you would get fired. And now we see federal employees getting fired for following the law,” he says. “That’s a complete sea change.”

His words come as new leaders at the Office of Special Counsel have in recent months dropped some of the cases Dellinger brought. Whistleblower protection groups say they worry their clients will not get a fair hearing.

This month, a group of fired federal workers sued the agency and Greer in his capacity as acting head, arguing he failed to protect thousands of people illegally laid off from their jobs. They say the Special Counsel is now an arm of the White House.

The White House in a statement defended Trump’s authority to fire federal employees.

“As the head of the Executive Branch, President Trump has the lawful authority to remove officers exercising executive power and to make the staffing decisions necessary to successfully run the Administration,” Abigail Jackson, a White House spokeswoman, said.

A pivot back to a spoils system?

Over a century ago, the federal government pivoted from a spoils system, where political favoritism ruled the day, into a system that rewards merit, knowledge and experience.

The idea behind the shift is that firefighters who battle wildfires out West, for example, and air traffic controllers who survey the skies, should be hired for their skills, not their political loyalties. Same goes for Justice Department attorneys prosecuting civil rights cases and scientists reviewing new vaccines.

“The federal employee — they take an oath of office,” said Raymond Limon, who spent three decades in the federal government, most of that time as an employment attorney and a human resources leader, until he retired in February. “Their loyalty, their fidelity, is to the entire American people.”

Now Limon fears that basic idea is under threat, as Trump moves to consolidate his power over the executive branch and hire and fire as he sees fit.

Limon’s final post in the government was as a member of the Merit Systems Protection Board, where he served alongside Harris. He says what’s happened to her, former Special Counsel Dellinger, and the inspectors general, is chilling.

“Authoritarianism 101, you know, is number one, go after the watchdogs,” he said.