Stripped to its constitutional essence, the current government shutdown amounts to another bid to expand presidential power. How it ultimately resolves could one day be up to the six justices in the Supreme Court’s majority, who seem poised to give President Trump whatever legal cover he wants.
Getting rid of federal government employees and closing entire agencies is a centerpiece of Project 2025, the 900-page policy proposal designed for Trump’s second term. That effort began in earnest in January under Elon Musk, the unelected billionaire whom Trump installed to lead the dodgy entity known as DOGE.
On Thursday morning, Trump posted on Truth Social that he and his budget director Russell Vought would use the shutdown to determine “which of the many Democrat Agencies” would be subject to “irreversible” cuts, adding that “I can’t believe the Radical Left Democrats gave me this unprecedented opportunity.” In an interview with One America News, also released on Thursday, Trump added: “There could be firings and that’s their [the Democrats’] fault.”
The government shutdown might be the next step in the Trumpian plan to vastly shrink the federal government without any legislative authority from Congress.
The broader constitutional question presented by the shutdown turns on how much power a president has to fire executive branch employees and whether that power is somehow enhanced during a government shutdown. The tentative answer to those questions is that Trump is once again pushing the country into unchartered territory, knowing full well that the Supreme Court majority will likely have his back.
Article II of the Constitution specifically empowers presidents to appoint principal federal officers with the advice and consent of the Senate. It says nothing about the president having the power to fire anyone in the federal government, or to hire or fire ordinary federal employees.
Nonetheless, since 1926, the Supreme Court has assumed that presidents have what is called “removal power,” on the theory that the power to appoint people implies the power to remove them, too. Since 1935, the court has also upheld Congress’s power to put legislative restraints on presidents’ power to remove certain officials.
Congress has sometimes required presidents to have “good cause” to fire certain officials, on the rationale that whether certain agency heads keep their jobs in the short term should not be completely dependent upon political whims. But three times since Trump’s second inauguration, the Supreme Court majority has granted emergency petitions filed by Trump to let him fire officials without cause, ignoring the statutory limits on his ability to fire certain people as well as the court’s own 90-year-old precedent allowing Congress to impose such limits.
Then, on Oct. 1, in a fourth case involving Trump’s attempt to fire someone without cause, the court did an about-face. It snubbed his emergency request to unilaterally fire Federal Reserve Governor Lisa Cook before her fourteen-year statutory term runs out.
In none of the three prior rulings had the majority offered a reasoned explanation for ignoring its own precedent. In its latest decision, the court also did not explain why it treated Cook’s firing differently. The one hint, from one of the three prior rulings, was a suggestion that the Federal Reserve may be different from other entities because it “is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States” — a distinction that makes little sense as a matter history or law.
This brings us to the government shutdown. Trump may try to fire huge chunks of the federal workforce even though the constitutional authority to reconfigure the federal government belongs to Congress, not the president.
From the standpoint of Trump’s lawyers, the constitutional justification underlying all of this is the so-called “unitary executive theory,” which blows the lid off any existing understandings of presidential power to remove executive branch officials. Under the unitary executive theory (which is not in the Constitution), presidents have unlimited removal power. So if proponents of the unitary executive theory had their way, Congress would be constitutionally banned from constraining Trump’s ability to remove any of the roughly 3 million executive branch employees at any time for any reason.
The problem for Team Trump right now is that many laws clip his power to fire major swaths of the federal workforce with the stroke of a pen. Those laws include the Antideficiency Act of 1870, which bans the spending of money without congressional appropriation — including money used to pay workers whose job it is to lay off or fire other workers. So long as the government is shut down, widespread firings cannot be effectuated under this statute unless Congress specifically decides to fund the jobs of the people needed to implement the firings.
Moreover, under the Government Employee Fair Treatment Act of 2019, employees who are either furloughed or deemed “essential” (and thus required to work during a shutdown without pay) are entitled to receive retroactive pay once the government reopens. To fire them “irreversibly,” Trump must initiate a reduction in force, which requires compliance with detailed regulations issued by the Office of Personnel Management. Again, those regulations require employees to administer them, whose jobs Congress would have to fund. Those regulations also have specific criteria for identifying employees who are susceptible to a reduction in force — and they don’t include that the president simply wants them all gone.
Finally, under the Civil Service Reform Act of 1978, career employees are entitled to 30 days’ advance written notice and the right to review and respond to the government’s evidence in support of a firing. They also get to file an appeal with the Merit Systems Protection Board to argue that their reduction in force does not comply with the law.
The Supreme Court did just allow Trump to fire the head of the Merit Systems Protection Board without cause. That is a sign that the majority is sympathetic to the unitary executive theory. However one feels about what he is doing, the legal reality is that Trump is massively reshaping not just the federal government, but also the structure of the Constitution itself. So far, the Supreme Court’s unelected majority is on board.
Kim Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why.”