Government Workers Cannot Be Fired for Their Political Views

Yahoo

15-02-2025

Just a few years ago, then-Senator J. D. Vance of Ohio said that if Donald Trump were reelected, he would advise the president to 'fire every single mid-level bureaucrat, every civil servant in the administrative state' and 'replace them with our people.' Nearly four weeks into his new term, Trump appears to be executing that plan, attempting to fire or place on administrative leave thousands of federal employees perceived to be politically adverse to him, and reclassifying many more to make them fireable at will. Those hired in their stead will be vetted by Elon Musk's so-called Department of Government Efficiency, thanks to a new executive order.
Last week, two sets of FBI employees filed the first lawsuits challenging these moves on First Amendment grounds. Both allege that the employees were targeted as a form of retaliation. The essence of a First Amendment retaliation claim is that although the government may deny someone a valuable benefit for any number of reasons, 'there are some reasons upon which the government may not rely,' including, pointedly, someone's 'constitutionally protected speech or associations.' The plaintiffs in the FBI cases allege that the Trump administration is demanding a list of 6,000 agents involved in investigating the January 6 and Mar-a-Lago cases in order to possibly punish or purge thousands of agents Trump perceives (surely wrongly in many instances) to be politically opposed to him. The FBI employees should win their First Amendment claims, especially if any mass purge takes place.
[Tom Nichols: Trump and Musk are destroying the basics of a healthy democracy]
Zooming out, thousands of other federal employees could well make similar constitutional claims, because what the Trump administration is doing with the FBI appears to be but a small part of a much larger effort to resurrect a government-wide political-patronage system, something the First Amendment forbids.
From the founding until 1883, a 'spoils'—as in, 'to the victor belong the spoils'—system of political patronage took root and flourished in the federal government. New administrations would fire federal officials belonging to the other party and hire their own people. President Andrew Jackson became particularly associated with the spoils system after campaigning on rooting out corruption and firing nearly 10 percent of federal employees, replacing many with supporters upon taking office, but he was far from the only president to reward political cronies with federal jobs, as the University of Pennsylvania law professor Kate Shaw has explained.
Political-patronage systems promote corruption at the expense of effective governance, and Americans grew dissatisfied with the cronyism and moblike rule that flowed from the spoils system. Following decades of effort to enact civil-service reform, momentum surged when a disgruntled office-seeker assassinated President James Garfield in 1881. In response, Congress passed the Pendleton Act in 1883 to 'regulate and improve the civil service of the United States,' establishing a merit-based system for federal hiring.
Under the current federal civil-service regime, fewer than 4,000 federal employees—including constitutional officers, such as the attorney general and secretary of state, and top agency officials—serve at the president's pleasure, fireable for political disagreements or pretty much any other reason. The overwhelming majority of the more than 2 million workers who daily serve the American people in the federal civil service are wisely protected from political firings.
That protection flows from something even deeper than the Pendleton Act and other federal statutes. In 1947, the Supreme Court was faced with a First Amendment challenge to the Hatch Act, which limits the extent to which most federal officials can engage in overt political activity while in office. The Court upheld the act but made clear that the First Amendment would prohibit Congress from directly restricting the ability to hold federal offices to members of one party, such as by enacting 'a regulation providing that no Republican … shall be appointed to federal office.' Notwithstanding the Court's guidance, the worst practices of political patronage continued to crop up in state and local governments, forcing the Supreme Court to elaborate the point and put a stop to spoils practices in a series of cases.
The most relevant case to our present-day situation began in 1980, when Republican Illinois Governor Jim Thompson issued an executive order freezing all hiring across state agencies absent express permission from his office. Requests for exceptions became routine, and an agency was set up inside the governor's office to vet them. Five job-seekers sued, claiming that in practice, the order and exceptions were being used to create a political-patronage system favoring Republicans.
[Annie Lowrey: Civil servants are not America's enemies]
When the case reached the Supreme Court, the Court held that systems of political patronage like the one established by Thompson violate the First Amendment. Quoting one of its first patronage decisions, the Court reaffirmed that 'conditioning public employment on the provision of support for the favored political party 'unquestionably inhibits protected belief and association.'' Doing so 'pressures employees to pledge political allegiance to a party with which they prefer not to associate, to work for the election of political candidates they do not support, and to contribute money to be used to further policies with which they do not agree.' It is 'tantamount to coerced belief,' something the First Amendment plainly forbids. Nor did it matter that Thompson had not issued a direct order specifying that only Republicans would be hired, because 'what the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly.'
There is an exception to the First Amendment bar on political hirings and firings. Those officials in legitimate policy making positions can be dismissed for political reasons without offending the Constitution. That's because in America's representative democracy, it is important that lawful policy reflects the political will of the voters, as voiced by the executive. But the executive cannot simply label large numbers of officials 'policy makers' and render them all fireable at will. Instead, courts must look through labels to the substance of an official's role and determine whether political alignment is necessary in that role. In any given dispute, the government has the burden of demonstrating that a particular position is in fact a policy-making one before the job-holder may be fired based on raw political allegiance.
The Trump administration seems set on flouting this precedent. Throughout the 2024 campaign, Trump and those around him signaled that the MAGA movement would expect total loyalty from federal officials. On Inauguration Day, after taking office, Trump suggested that 'all' of the 'Biden bureaucrats' should be fired. The same day, Trump signed one executive order to freeze much merit-based federal hiring, and he signed another that will help him consolidate political control over existing employees. The latter order conveniently expanded the number of officials to be classified as policy makers—from fewer than 4,000 to potentially hundreds of thousands. The administration also expanded the type of agency hiring authority that would make bringing in loyalists easier. And late last month, federal employees were informed by email that the majority of federal agencies are likely to downsize, and that loyalty will be a determining factor in deciding who stays.
Meanwhile, purges of employees whom Trump likely views as politically misaligned with him have begun to roll out across agencies. The administration has directed agencies to fire most probationary staff, nearly all of whom were hired during the Biden administration. Department of Education employees were reportedly put on leave for simply attending a DEI training in 2017. The FBI officials who sued say they have reason to believe that the Department of Justice is planning to engage in the mass unlawful firing of agents who had any involvement in certain investigations related to President Trump, including the January 6 cases, and the lawful search of Trump's residence at Mar-a-Lago. DOJ attorneys involved in the January 6 prosecutions were terminated because their work on those cases purportedly would prevent them from 'faithfully' implementing Trump's agenda. At the beginning of February, the administration moved to shut down USAID entirely. Although the administration explains the move as aimed at preventing waste and fraud, White House Deputy Chief of Staff Stephen Miller said—without citing any evidence to support the improbable claim—that the Trump administration had determined that '98 percent of the [USAID] workforce either donated to Kamala Harris or another left-wing candidate,' and Elon Musk posted on X, 'USAID was a viper's nest of radical-left marxists who hate America.' As for replacing those fired, Trump signed a new executive order this week, directing that all future career-appointment hiring decisions be made in consultation with a team lead from Musk's DOGE.
[Anne Applebaum: There's a term for what Trump and Musk are doing]
Taken together, the administration's actions bear a striking resemblance to the Illinois patronage scheme that the Supreme Court ruled unconstitutional: freeze hiring, purge perceived political opponents, and consolidate all hiring and staffing decisions in a body close to the executive.
The Trump administration clearly knows that the First Amendment prohibits resurrecting a government-wide political-patronage system. That Inauguration Day executive order expanding the number of purported policy makers claims that 'employees in or applicants for Schedule Policy/Career positions are not required to personally or politically support the current President or the policies of the current administration.' Similarly, the administration's implementing guidance, issued at the end of January, in fact cites the Supreme Court's anti-patronage decisions, specifying that 'Patronage Remains Prohibited.'
But the administration's actions and statements suggest that the resurrection of a political-patronage system is well under way. Particularly if political purges continue, courts must see the anti-patronage posturing as pretext and enforce the First Amendment. As the Supreme Court memorably put it in the Illinois case, 'To the victor belong only those spoils that may be constitutionally obtained.'
Article originally published at The Atlantic