During its first few weeks, the Trump Administration has unleashed a flurry of measures to radically reshape the federal government. Many of these moves are overtly unlawful. This paper identifies the legal problems with many prominent actions: closing federal agencies or departments and removing federal employees, ending the independence of independent agencies, placing employees on indefinite administrative leave, or pressing them to resign.[2]
The Administration has made various statements suggesting that it intends to close or radically shrink various federal agencies, including the U.S. Agency for International Development (USAID), the Consumer Financial Protection Bureau (CFPB), and the Department of Education.[3] More broadly, it has declared that it is reorganizing the federal government. Many of these actions are also unlawful. As new announcements are made, a series of questions about the legal authority of these actions should be carefully examined.
Executive departments and major agencies are created by Congress, not the President. The fourth law enacted by the first Congress in 1789 began creating federal agencies,[4] and Congress has continued to determine which agencies should exist ever since. Congress created the Department of Education[5],[6] and CFPB[7] by statute, and the President lacks the power to unilaterally amend or repeal those statutes — only Congress can do that.
Although Congress has occasionally given the President authority to propose reorganizing the government as a whole,[8] or particular parts of it,[9] the authorities relating to the changes the Administration is making all expired long ago.[10] To avoid just the kind of chaotic process we are seeing, the now-expired major reorganization authorities required congressional approval[11] and prohibited “dealing with more than one logically consistent subject matter” at once.[12] Although the President may ask Congress for new reorganization authority, Congress must pass legislation to provide it and the President would be bound by any timing and subject-matter limitations Congress imposed on such plans.
For well over a century, Congress has entrusted sensitive regulatory tasks requiring technical expertise and impartial judgment to a set of independent regulatory commissions. These commissions, such as the Federal Communications Commission, the Federal Trade Commission, and the Securities and Exchange Commission, are led by boards of commissioners serving staggered terms of fixed duration.
Presidents nominate commissioners but may only remove them in the middle of their terms for misconduct, as defined in the commissions’ statutes. Presidents may appoint a majority of the commissioners from their own party, but the commission must have members from the other party. The U.S. Supreme Court unanimously affirmed the constitutionality of this arrangement, stating:
We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted, and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter’s will.[13]
Nonetheless, the Trump Administration has fired one member of the National Labor Relations Board. Section 3(a) of the National Labor Relations Act provides that “[a]ny member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”[14] The Administration criticized the views of the removed member but did not allege misconduct. This removal without statutory cause was unlawful. Her dismissal left the Board without a quorum and therefore unable to conduct business.
The Administration has announced that it believes that restrictions on the President’s power to remove members of independent agencies are unconstitutional, notwithstanding the Supreme Court’s unanimous decision approving such conditions. If the Administration prevails, all regulatory agencies, including the Federal Reserve, would lose their independence.(Even if a president did not seek to undermine their independence, those serving would know that if they acted contrary to a deeply held view by a president, they could be removed.) This would allow presidents to wield their powers to reward allies and punish opponents. It also would allow presidents to order the Federal Reserve to dramatically expand the money supply to boost the economy immediately before an election even if doing so would create high inflation in the following months.
The Administration has already begun acting on the assumption that these agencies are no longer independent: it included them in its executive order to reduce federal staffing.[15]
In a speech before the election, Office of Management and Budget (OMB) Director Russell Vought declared the Administration’s intention to traumatize federal workers so that they would resign or become ineffective.[16] Various Administration officials have made sweeping accusations that federal civil servants are extremely liberal and resolutely hostile to the Administration’s priorities. The Administration has taken numerous steps to remove federal employees or pressure them to resign. Many of these steps are unlawful.
Inspectors general. President Trump removed 17 inspectors general from departments and agencies across government. Several were his own appointees from his first term. He provided no advance notice and no substantive statement of reasons. This violates the Inspector Generals Act, which requires informing Congress of the detailed reason for an inspector general’s removal at least 30 days before any removal.[17] Inspectors general are required to be appointed “without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations”.[18] By statute, inspectors general “are established in order to create independent and objective units…to conduct and supervise audits and investigations relating to the programs and operations of” the agencies they oversee.
Although the inspector general for USAID was not fired with the other inspectors general, the Administration subsequently fired him immediately after he released a report describing harm resulting from severe reductions in USAID.[19] This seems to confirm that inspectors general were fired to impair their independence.
Placing employees on involuntary administrative leave for long periods. The Administration has placed many federal employees on indefinite involuntary administrative leave, including almost all of those at USAID[20] and those it believes worked in diversity, equity, and inclusion programs. This violates a federal law declaring that “[d]uring any calendar year, an agency may place an employee in administrative leave for a period of not more than a total of 10 work days.”[21] It also violates another federal law, which states that “[t]he head of each Executive agency…shall…establish a basic administrative workweek of 40 hours for each full-time employee in his organization; and…require that the hours of work within that workweek be performed within a period of not more than 6 of any 7 consecutive days.”[22] Federal workers on administrative leave perform no work.
More broadly, spending money to keep workers away from work that Congress appropriated for salaries for workers carrying out public business is wasteful and could be inconsistent with the terms of a particular appropriations act. Federal law states that “An individual may be employed in the civil service in an Executive department at the seat of Government only for services actually rendered in connection with and for the purposes of the appropriation from which he is paid.”[23] Federal officials in responsible positions have a fiduciary duty to obtain honest value for taxpayers’ dollars.[24] Paying federal workers for idleness violates the statutory requirement that “[t]he Federal work force should be used efficiently and effectively.”[25]
Encouraging resignations through an unlawful and misleading “buy-out.” Federal law authorizes buy-outs of federal employees under proper circumstances. The Office of Personnel Management’s (OPM) solicitation of resignations from federal employees, however, makes no attempt to comply with those requirements or any other lawful authority.[26] To be a lawful buy-out, the agency seeking buy-out authority (not OPM) must prepare a detailed plan including “the specific positions and functions to be reduced or eliminated” and “a description of how the agency will operate without the eliminated positions and functions.”[27]
OPM must approve this plan before incentives may be offered, and those incentives generally may not exceed $25,000,[28] which is considerably less than OPM is promising many of those who resign. Committing the federal government to paying moneys not approved by Congress — which this does, both by the amount and because most agencies lack appropriations past March 14, 2025[29] — violates the Appropriations Clause of the Constitution[30] and the Anti-Deficiency Act.[31]
Potential for the Administration to drive out federal workers based on perception of their ideology or engagement in efforts directed by the prior Administration with which the President disagrees. Taking action to drive out as many federal employees as possible because the Administration regards them to be unsympathetic with the its views would violate the fundamental principle underlying the nonpartisan Civil Service: “All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation.”[32] Compliance is mandatory: “Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority … discriminate for or against any employee or applicant for employment on the basis of … political affiliation.”[33]
Those same statutory rules prohibit terminating or taking other adverse action against particular employees regarded as politically unsympathetic because they participated in specific activities or investigations. The Administration has reportedly begun removing FBI agents who followed their superiors’ orders and participated in investigations of President Trump[34] and issued a memo targeting Justice Department employees for actions that were clearly legal when taken at the direction of the prior political leadership.[35]
The Administration’s actions to place on administrative leave or dismiss employees who performed lawful assignments under prior administrations — working in diversity, equity, and inclusion programs, foreign aid, environmental work, conducting authorized investigations, and so forth — also violates the rule that personnel actions may not “discriminate for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.”[36] The Supreme Court has said, “[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.”[37] Indeed, had these employees not worked toward completing their assignments, they would properly have been subject to discipline and termination under the prior administration.[38]
Changes in telework. The Administration also made continued federal employment very difficult for some workers by issuing a broad prohibition on teleworking.[39] Although this directive states that it shall be implemented “consistent with applicable law,” that law allows little place for such a sweeping edict. That’s because Congress has ratified telework by statute, requiring “the head of each executive agency [to] establish a policy under which eligible employees of the agency may be authorized to telework” and to notify workers of those rights.[40]
This law makes exceptions for employees performing badly, but none for an agency’s or administration’s dislike of the concept.[41] These agency telework policies have been in place for some time and workers have telework agreements in place. For workers who relocated in reliance on this law and binding telework agreements, an arbitrary end to telework could cause serious hardship or leave the worker with no practical choice but to leave federal employment.
Massive reductions in staffing. The Administration has ordered agencies to initiate massive reductions in force. Such massive reductions in staffing are likely to leave large amounts of appropriated funds unspent while failing to fully implement agencies’ statutory missions. As such, they will be impoundments in violation of the Impoundment Control Act.[42] To prevent cronyism, federal law establishes detailed criteria for selecting which employees lose their jobs in these situations.[43] The Administration therefore cannot pick and choose which employees to retain.
This executive order includes a requirement that four career civil servants be discharged for every one that is hired. This could lead to a ratcheting effect that renders some agencies non-functional. For example, if the Department of Agriculture has a vacancy for a meat inspector in a particular factory, the order would require it to discharge four workers in order to fill that position. If the newly hired inspector leaves after a few months, another four civil servants would have to be fired to hire a replacement. At some point, agencies may decide that the damage done by the additional firings required outweigh that from leaving the position vacant. That could result in gaps in vital services to the public.
Recourse. To guard against cronyism and stacking the federal payroll with political patronage hires, federal law gives employees in the competitive civil service the right to contest adverse personnel actions before the Merit Systems Protection Board.[44] The Board has authority to stay the adverse action or order other corrective action it finds merited.[45] Senior Administration officials’ inflammatory, hostile rhetoric against federal workers likely will provide significant support to workers’ arguments that they are being targeted for improper reasons.
Many of the actions the Administration is taking also violate the terms of collective bargaining agreements with public employees’ unions. The statute governing labor-management relations law provides for discussions with unions to include “any grievance or any personnel policy or practices or other general condition of employment.”[46] It requires agencies to negotiate in good faith with its workers’ unions.[47] This duty to negotiate extends to work rules, such as schedules and location of work, except where those rules are supported by a “compelling need.”[48]
Although the Administration presumably will argue that it has “compelling need” for these actions, unions may appeal that determination to the Federal Labor Relations Authority.[49] This claim will be difficult to support where prior administrations — often including the first Trump Administration — negotiated agreements on these very subjects. The Authority must expedite its decision.[50] If it finds that the Administration’s unilateral actions constituted an unfair labor practice, it may order it “to cease and desist from any such unfair labor practice in which the agency … is engaged [and] require[e] the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect.”[51]
Even if some of these policies are exempt from collective bargaining, the Administration was required to consult with federal employees’ unions on “any Government-wide rule or regulation issued by the agency effecting any substantive change in any condition of employment,”[52] which these policies clearly are. Collective bargaining agreements also set out grievance procedures that particular employees may pursue if the Administration takes adverse actions against them, including placing them on involuntary leave and termination.[53] If arbitrators find the actions improper, they may reverse those actions.[54]
Thus, the Administration may be able eventually to take many of these actions, but only after first involving the employees’ unions.
The Administration has tried to avoid some of these issues by unilaterally declaring void all collective bargaining agreements with public employee unions reached or renewed during the final month of the Biden Administration.[55] This action directly violates its duty to negotiate in good faith if it is dissatisfied with some of those agreements’ contents. The Administration asserts that these collective bargaining agreements improperly impinge upon management’s rights, yet the very legal authorities it cites contradict this position.[56]
Amending and Repealing Rules Without Following Statutorily Mandated Procedures
Since 1946, Congress has sought to improve the quality of administrative rules by requiring federal agencies to seek public comments when they promulgate, amend, or repeal rules. For most rule-making affecting the general public, this mandate appears in the Administrative Procedure Act (APA).[57] For rules the Office of Personnel Management makes, a separate statute requires compliance with the APA.[58]
The Biden Administration followed the APA to promulgate rules on many of its top priorities, both in regulations protecting the general public and in rules protecting career civil servants from political coercion or discrimination. On some issues, it was unable to finish soliciting and responding to public comments and therefore abandoned making policy in those areas.
The new Administration, however, is repeatedly disregarding its statutory duty to seek public comment before it regulates. For example, the President directed the Office of Personnel Management to disregard a duly promulgated regulation giving federal employees the right to remain in their current classification if the Administration reclassified them into positions where they would lack security of tenure.[59] This is significant because the same executive order shifts large numbers of federal workers out of the non-political competitive service into positions where they may be fired at will for political or arbitrary reasons.
