That’s not a license for Trump to violate the law. It’s a call to judicial restraint unless and until he does.
F itting the now well-worn pattern, garment-rending has commenced among the media-Democratic complex over the Supreme Court’s order on Tuesday, allowing the Trump administration to proceed with its effort to reduce the size of the civilian federal workforce, which numbers around 3 million.
Don’t read more into it than there is. The justices are curbing judicial activism, not endorsing executive lawlessness.
All the Court has done is nullify an injunction that a judge had no basis to issue. The judge had assumed that the administration would act lawlessly even though it had not yet taken any concrete steps. The justices, with only the progressive ideologue Justice Ketanji Brown Jackson dissenting, took pains to say they were ruling not on any action the administration might take, just that the judiciary had no business placing a prior restraint on such action.
Shortly after taking office, President Trump issued an executive order (EO 14210), the aim of which was to prepare for implementation of his planned “optimization” of the workforce. The stated goal was to maximize productivity (to get the required tasks accomplished with fewer people), guided by the work being done at the time by the Department of Government Efficiency (DOGE), then led by Elon Musk.
Notwithstanding the hysterical reporting, Trump’s EO explicitly instructed that the Constitution and laws be followed. On this score, we should note that the president’s objective is completely consistent with congressional law.
Under federal statutes governing “executive reorganization” (see Section 901 et seq. of Title 5, U.S. Code), Congress has declared it the “policy of the United States” to, among other things, “increase the efficiency of the operations of the Government,” “reduce expenditures and promote economy to the fullest extent” that efficient operation can achieve, “eliminate overlapping and duplication of effort,” and “reduce the number of agencies by consolidating those having similar functions under a single head, and . . . abolish such agencies or functions thereof as may not be necessary for the efficient conduct of the Government.”
Compared to this statutory exhortation, the EO is modest. It targets federal employees still in their probationary term and “reemployed annuitants” (retired federal employees who are already receiving benefits and are provisionally rehired to fill temporary gaps or train new employees). That is, at least on paper, Trump is not seeking to provoke a constitutional confrontation over whether the president, in whom all executive power is vested, has authority to fire executive branch workers whose employment Congress has purported to protect by statute.
Moreover, the EO stipulates that “reductions in force” (RIFs) are to be accomplished mainly by attrition (e.g., a default assumption that only one new employee will be hired for every four who retire), and that RIF targets will be “offices that perform functions not mandated by statute or other law.” That is, at least in this EO, Trump is not seeking to provoke a confrontation over whether the president has the constitutional authority to shutter executive agencies that Congress has established or to nullify tasks it has assigned to the executive branch.
Statutes aside, Article II reposes all executive power in the president, and Congress is not authorized to execute (just as the president is not authorized to legislate). Hence presidents have constitutional authority to organize the executive branch, to set executive priorities, and to reduce the workforce and execute the missions Congress has assigned by using fewer employees or less funding than Congress has appropriated. Having spent over a quarter century of my professional life working for various federal agencies, I can attest that RIFs are an occasional fact of life for government employees. Trump and DOGE did not invent them.
Now, could an overhaul of the federal workforce get legally dicey? Sure. The president could try to start firing employees who have civil service protections, thus challenging Congress’s encroachment on his capacity to control those who wield executive power. Or the president could so marginalize the work of an executive agency that he might plausibly be said to have nullified an entity and mission properly created by Congress. These would be constitutionally fraught scenarios.
Similarly, it’s not hard to imagine a situation in which an EO’s proviso that the actions ordered be taken “consistent with law” could be mere lip service. That is, the president may say that his underlings are expected to obey the law in carrying out his directives, but it could turn out that those directives are themselves illegal, or that, even if arguably legal, they are implemented illegally. (President Biden, for example, claimed that his “parole” for various categories of illegal aliens was consistent with law, even though it was utterly inconsistent with law.)
In short, many illegal things could happen. But that doesn’t necessarily mean they will happen. Many executive orders in Trump’s first term included the caveat that all implementing actions be consistent with law; for the most part, they were.
The same thing could be said about Congress and the judiciary — that is, Congress could pass a blatantly unconstitutional law. For example, when President George W. Bush signed the 2002 Bipartisan Campaign Reform Act (commonly known as “McCain-Feingold” after the two sponsoring senators), he was aware of the high likelihood that several of its provisions violated the First Amendment, as indeed the courts later found (see, e.g., Citizens United v. FEC [2010]). It’s also always possible that judges could issue blatantly unconstitutional orders; our editorial on Wednesday detailed just such an instance, when an Obama-appointed judge purported to invalidate an indubitably constitutional law prohibiting Medicaid funding for Planned Parenthood.
Still, such episodes are anomalies. We don’t assume that government branches will act illegally. To the contrary, out of interbranch comity, each branch of government should indulge the presumption that the other two branches are acting legitimately, in good-faith regard for the Constitution and other legal mandates. The presumption can be overcome, but it is rightly the system’s default setting.
The president is entitled to no less a presumption of legitimacy than Congress or the courts. Courts should never approach a case on the operating assumption that a president or Congress has violated the law. And because the jurisdiction of courts is limited to cases and controversies — i.e., to concrete claims of real harm that are justiciable and redressable by judicial action — judges should never even get to the question of whether a presidential or congressional action was illegal unless there is a proper case in which a claimant with standing can establish harm traceable to the alleged illegality.
Yet, when the Trump administration began to implement EO 14210, laying off 10,000 Department of Health and Human Services employees in April, a public sector union, the American Federation of Government Employees, immediately filed suit in San Francisco — friendly climes for the union. Naturally, the AFGE had the good fortune there of drawing a friendly jurist, Judge Susan Illston, a senior Clinton appointee. Judge Illston promptly issued a temporary injunction barring the Trump administration from carrying out firings and a reorganization of the executive branch.
Judge Illston reasoned that, by statute, Congress has mandated that reorganizations of the executive branch require congressional consultation and approval. (See Section 903, part of the laws linked above under the heading, “Executive Reorganization.”) This legislation is constitutionally questionable on separation of powers grounds: It intrudes Congress into the president’s management of the executive branch. But at this premature point, that was neither here nor there because the Trump administration had not done anything actionable yet (and it may not ever).
No concrete steps had been taken to accomplish an overhaul of the executive branch. The Trump administration had just taken some preliminary measures, including laying off workers the president had the authority to lay off, in preparation for an eventual executive branch reorganization. Even if we assume for argument’s sake that Congress must approve an executive reorganization of any kind or extent — even one that does not undertake to eliminate agencies and tasks created by Congress — the Trump administration had not yet undertaken any such reorganization.
That is what the Supreme Court found. In their succinct order, eight of the nine justices concluded that Judge Illston was wrong in assuming that the EO and the manner in which the executive branch had thus far implemented it were “unlawful.” Yet, in finding that the administration was likely to succeed in its argument that the EO is lawful, the Court was careful to qualify:
We express no view on the legality of any Agency RIF and Reorganization Plan produced or approved pursuant to the Executive Order and Memorandum. The District Court enjoined further implementation or approval of the plans based on its view about the illegality of the Executive Order and Memorandum, not on any assessment of the plans themselves. Those plans are not before this Court.
Just so. And that’s why the Court’s most senior progressive, Justice Sonia Sotomayor, implicitly upbraided Justice Jackson, her like-minded colleague.
Yes, Sotomayor agreed with Jackson that “the President cannot restructure federal agencies in a manner inconsistent with congressional mandates.” Now, they could be wrong about that; it’s possible that Congress could have violated separation-of-powers principles by mandating for itself a role in managing the executive branch. For the moment, however, there is no reason to suspect that Congress has overstepped its bounds any more than that the president has.
As Sotomayor elaborated, the relevant EO directs executive agencies to plan reorganizations and RIFs “consistent with applicable law.” Right now, such plans are not before the Court, and therefore “we have no occasion to consider whether they can and will be carried out consistent with the constraints of law.”
In this order, as in Trump v. Casa Inc., the ruling invalidating universal injunctions issued on the final day of the Court’s term, the justices are trying to get a crucial point across to the lower courts: “Federal courts do not exercise general oversight of the Executive Branch,” even if the president is one whom progressive activists suspect of unconstitutional motives and malevolent designs.
President Trump gets the benefit of the doubt. That’s not a judgment of his trustworthiness but an acknowledgment that the American people elected him. If he breaks the law, there may be comeuppance. But not before.