Fired Federal officials: a Trojan horse that the Deep State daren't tackle?

 

Flopping Aces has a very interesting take on the firing of senior Federal officials by the incoming Trump administration.

The President’s enemies are beginning to awaken to the formidible possibility that Trump knows exactly what he is doing and is setting traps for them to fall into. The New York Times covered the story yesterday under the headline, “Trump’s Firings Could Bring Court Cases That Expand His Power.”

Over the past several days, the President has “abruptly fired dozens of officials,” if not hundreds of them. The Times, at least, is beginning to detect a figure of rationality emerging from the fog of administrative war. It claims to have uncovered a pattern among Trump’s firings of powerful federal actors who thought they were safe. These included the 17 aforementioned Inspector Generals ... plus cemented-in officials from agencies like the National Labor Relations Board (NLRB), the Privacy and Civil Liberties Oversight Board, and the Equal Employment Opportunity Commission (EEOC).

Note that all four categories include officials appointed by the President and confirmed by the Senate.

Astonishingly, Trump’s mass firings of top-level commissioners from the NLRB, the Privacy Board, and the EEOC, were thought to be illegal and impossible. But even more historic and astonishing, Trump has fired so many it leaves those agencies without quora. They are dead in the water. These now-paralyzed agencies literally cannot undermine Trump’s agenda, even if they wanted to, for the practical reason that there simply aren’t enough commissioners left to vote on anything. They’re frozen.

Strikingly, none of the “abruptly fired” officials have yet sued the federal government—even though Trump is trampling on all sorts of precedents, customs, and statutes. Ms. Fong merely staged a bizarre mini-protest rather than assert her legal rights. All this legal restraint is especially strange considering that in at least one agency, the NLRB, federal law expressly limits the President’s ability to fire commissioners except in very limited circumstances.

The Times and the fired officials smelled a Trump trap.

“The prospect of getting dragged into court,” an alarmed Times observed, “may be exactly what Mr. Trump’s lawyers are hoping for.” What terrified and dismayed the far-left Times and its progressive allies was the ghastly prospect that “any rulings in the president’s favor would establish precedents that would expand presidential power to control the federal government.”

In other words: Trump is hoping that they’ll sue him.

There's more at the link.

I highlighted one paragraph in orange because I think it's the "first-stage" fruit of the firings:  neutralizing agencies that would otherwise be certain to try to block President Trump's policies in any way they can.  Until a quorum of senior officials is again established, either through the courts or through new appointments by the Administration, they're going to stay neutralized, too.  Somebody in the Trump transitional team had a brainwave when he/she spotted this possibility.  I hope they get a thumping great bonus for it.

However, the legal implications of the President's use of his authority as head of the Executive Branch are even more intriguing in the long term.  Congress has passed many, many laws over the past few decades that chip away at the power of the Executive, effectively subordinating much of it to the Legislative Branch.  If that can be overturned by a Supreme Court more attuned towards historical constitutional interpretation (as the current SCOTUS appears to be), it might threaten many more than just the laws that apply in this case.  If all the encroachments have to be weighed against a set of standards or tests imposed by SCOTUS, we might see a resurgent Presidency and a chastened Congress.

As another report points out:

Some legal experts say the purges underway appear to be custom-made opportunities for the Supreme Court’s Republican-appointed majority to strike down the statutes any legal challenges would be based on, furthering its trend in recent years of expanding presidential authority.

“On one level, this seems designed to invite courts to push back because much of it is illegal and the overall message is a boundless view of executive power,” said Jack Goldsmith, a Harvard law professor who led the Justice Department’s Office of Legal Counsel in the Bush administration. “But really, they are clearly setting up test cases.”

Five of the nine Supreme Court justices worked as executive branch lawyers during the Reagan and George W. Bush administrations. Their legal teams were both defined by an expansive view of executive power, including developing theories of the Constitution that would invalidate congressional restrictions on the White House.

The Reagan legal team, for example, created the so-called unitary executive theory. It holds that the president must wield exclusive control of the executive branch, so laws passed by Congress that give independence to other officials are unconstitutional. A key application is that presidents must be able to fire any executive branch official at will.

In recent years, the Supreme Court’s majority — led by Chief Justice John G. Roberts Jr., who worked in the White House Counsel’s Office under the Reagan administration — has pushed that idea.

Again, more at the link.

And all this within the first couple of weeks of President Trump assuming office!  What's next, one wonders?  Pass the popcorn . . .

Peter