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Could the president hire and fire civil servants at will? That question is at the heart of a concept that's likely to come up often at Supreme Court nominee Brett Kavanaugh's confirmation hearings this fall. NPR's legal affairs correspondent Nina Totenberg has the story.
NINA TOTENBERG, BYLINE: Donald Trump made a career hiring and firing people like Gary Busey on "The Celebrity Apprentice."
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PRESIDENT DONALD TRUMP: Gary, you're very talented. You're very unique. You're an amazing guy. And, Gary, you're fired.
TOTENBERG: As president, though, Trump has been frustrated by his lack of control over the bureaucracy. Roughly two million civilians work for the federal government, but the president is limited by law in his ability to make personnel changes. That, however, could change. The Trump administration has been pushing to put more of these employees under the president's control, and Trump's Supreme Court nominee Brett Kavanaugh is among a cadre of conservative judges who believe that presidential powers have been unconstitutionally weakened over the last century. They advocate a theory called the unitary executive. University of Chicago law professor Eric Posner.
ERIC POSNER: It's based on the idea basically that somebody's got to control these people, including the independent agencies. In a democracy, that person should be subject to popular election. And that's the president.
TOTENBERG: It boils down to the idea that the president can fire, for any reason, the heads of various departments that have executive powers. That would include quasi-independent agencies like the Federal Trade Commission, the Securities and Exchange Commission and the National Labor Relations Board. The idea of independent commissions was challenged in the 1930s when President Roosevelt tried to fire a federal trade commissioner appointed by his Republican predecessor. Roosevelt didn't question Commissioner William Humphrey's work performance, just his policy ideas. Humphrey challenged the firing. And in a landmark unanimous decision, the Supreme Court ruled in Humphrey's favor, to FDR's great consternation. In the 1980s, it was Republican presidents who challenged the independence of some government officers, but they lost, too.
The longtime status quo is that some parts of the bureaucracy should not be under the president's thumb so that they can carry out their duties in a nonpartisan way. University of Texas law professor Stephen Vladeck argues that quasi-independent agencies are able to do their jobs because they're not subject to the moment-to-moment political whims of the White House.
STEPHEN VLADECK: And if that changes, I think we'd see a huge shift in how the federal government does its job. And, more perniciously, we'd see a, you know, further politicization of just about every decision the federal government is making.
TOTENBERG: Supreme Court nominee Kavanaugh has a contrary view. He's criticized the Supreme Court's unanimous decision in the 1935 Humphrey case, though he's not outright advocated its reversal. He has, however, clearly suggested that a president ought to be able to fire anyone performing executive functions based solely on policy differences. The Trump administration is aggressively pushing the unitary executive idea, aiming its legal arrows at independent officers within those agencies. This year, the administration argued that position in the Supreme Court.
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UNIDENTIFIED PERSON: Mr. Chief Justice, and may it please the court.
TOTENBERG: The administration won a partial victory. The court ruled that independent administrative law judges at the Securities and Exchange Commission can only be hired by the president or the Commission, not as previously had been the case selected on merit-based examinations conducted by the Office of Personnel Management. The court, however, did not go further and say anything about firing. President Trump, nonetheless, has issued an executive order. And the Justice Department has issued guidelines allowing the firing of administrative law judges who essentially don't follow orders. There are 1,900 administrative law judges across the government who would be affected. They hear cases on everything from Social Security to stock fraud claims. And there are thousands more administrative judges, including immigration judges, indirectly affected. Legal experts on the right and left see the new rules as an effort to tee up cases for a new and more conservative Supreme Court majority that is more hospitable to the broad exercise of presidential power. Just how far down could the new rules granting broad executive control go?
GILLIAN METZGER: That's always been a question, does it go into the civil service?
TOTENBERG: Columbia Law professor Gillian Metzger says administrative law judges have always been seen on a par with civil service employees.
METZGER: So it really does start to raise the question of whether the civil service protections might also be at risk.
TOTENBERG: Just how far would a Justice Kavanaugh go in giving the president the power to remove government officials from high to low for pretty much any reason? Again, Professor Metzger.
METZGER: A hardcore unitary executivist would say all of them should be removable by the president. Whether Kavanaugh goes that far, I don't know.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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