Will Alito Help Trump Get Rid of Civil Service?

President Donald Trump’s drive to replace agency leaders and his mass firings across the federal government are all based on the same basic legal concept: the unitary executive theory. It holds that every employee of the executive branch is answerable to, and fireable at will by, the president.

The most extreme version of the unitary executive theory holds that the central premise of the civil service — that rank-and-file government employees shouldn’t be hired or fired for political reasons or simply on the president’s whim — is unconstitutional because it tramples on the president’s power to control the federal government.

“It’s the logical endpoint to unitary executive theory,” said Don Moynihan, a professor of public policy at the University of Michigan. “Their desired end goal would be to arrive at a completely ‘at-will’ workforce. … I think the administration is going to push the unitary executive idea as far as it can, and all of the signals it has been getting from the Supreme Court is to push further and push faster.”

While it’s unclear whether the Trump administration will ask the current court to dismantle the federal civil service system, some experts say the justices’ deference to Trump in firing-related cases is egging the administration on.

“This is the real-world implication of the path that the Supreme Court is on. It’s not an academic exercise,” said Max Stier of the Partnership for Public Service. “One hopes that they recognize that, whatever interest they’ve had in theory, in practice they’re unleashing an autocracy. And the further down that road they go, the worse it will be. It’s bad already.”

‘You’re fired’

The Trump administration’s firing spree has targeted thousands of probationary federal employees as well as longtime intelligence community and Justice Department officials, senior FBI agents, immigration judges and individual federal prosecutors, including Maurene Comey, a daughter of former FBI Director James Comey.

Many have been given termination paperwork containing the brief phrase: “Art. II Constitution.” The words are shorthand for a claim that Trump has authority to fire anyone working in the executive branch, not just managers or policymakers. Critics say the stance amounts to a power grab unseen in the U.S. since the the federal civil service was created in 1883.

The case the justices will take up Monday doesn’t go that far. It involves Trump’s attempt in March to fire Federal Trade Commission member Rebecca Slaughter. (Trump tapped Slaughter in 2018 to fill a Democratic seat on the FTC. Biden renominated her in 2023 to an additional seven-year term.)….

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Over the past two decades, however, the Supreme Court has pared back Humphrey’s by declaring various sorts of posts to be beyond its reach. The moves have generally tracked with the increasing focus among legal conservatives on the unitary executive theory and on arguments that the Constitution requires that the president have sweeping authority over executive branch personnel.

The court’s conservative majority could use the Slaughter case to overrule Humphrey’s. Or it could opt for a narrower ruling that the FTC of today has significantly much more regulatory power than it did in 1935, so the precedent simply is no longer applicable….

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