WASHINGTON, D.C. (Law.com) — Monday’s order from the U.S. Supreme Court. allowing the Department of Education to proceed
with mass layoffs is notable for its expansion of presidential power, one legal observer said.
The justices gave the Trump administration a green light in McMahon v. New York to conduct large-scale reductions in the force, or RIF, at the Department of Education. The court said it would allow a RIF of nearly 1,400 employees at the department, which has become a top target of the Trump administration.
The ruling represents additional evidence of the Roberts Court’s inexorable move towards a unitary theory of the executive branch, which posits that the president should be able to control the exercise of all executive power and can remove any executive branch official, said Michael J. Gearhardt, Burton Craige Distinguished Professor of Jurisprudence at the University of North Carolina School of Law.
“That will allow the president to have even greater authority than the president’s ever had in American history until now,” Gearhardt said.
“I think this case will stand as another step in the direction of embracing the unitary theory of the executive, but it also fits another pattern which which, to me, is very disturbing, and that is that the court is very sympathetic to Republican presidents and not to Democratic ones,” Gearhardt added.
“So when Biden was in office, for example, the Roberts Court blocked it and said there were things he couldn’t do. We are still waiting for the Supreme Court to say there’s something Trump can’t do.”
The ruling gives Trump yet another green light, Gearhardt said-“and what is striking about that, in part, is that the Trump administration has lost more than 90% of the cases litigated in lower courts. It has won more than 90% of the time in the Supreme Court.”
“We’ve never had a time period in which there has been this kind of dissonance or disconnection between lower courts and the Supreme Court,” he said.
“The thing to be concerned about is how each of these Supreme Court decisions rewrites separation of powers. Apparently, it’s all about the presidency. The framers created a system of equal branches, not a system in which one branch proves to be dominant,” Gerhardt said. “It’s just troubling.”
‘No Case Law, No Analysis’
The majority’s bare-bones order makes it difficult to say whether the ruling was legally sound, said Brittany Forrester, a labor and employment lawyer at Tully Rinckey in Ladera Ranch, California.
“It’s tough to analyze it from a legal perspective, because we don’t know where their legal perspective is in issuing the decision. They give us no case law, no analysis to support their decision,” Forrester said.
The Court’s terse order stands in sharp contrast with the 19-page dissenting opinion written by Justice Sonia Sotomayor and joined by justices Elana Kagan and Ketanji Brown Jackson. The dissent said the large-scale layoffs amount to a dissolution of the Department of Education, and only Congress has the authority to take such a move. The majority appears to think the president, as the head of the executive branch, has the ultimate authority to make decisions about staffing levels, Forrester said.
“I think they’re hanging their hat on that and really not providing any other analysis, whereas the opposing side is basically arguing and saying that it’s an overarching, overreaching power, a breach of separation of powers between Congress, who makes the laws, and the executive branch, who carries out the law,” Forrester said.
While the Trump administration has already been making big cuts to the federal payroll, those facing the knife have been largely probationary employees, whose rights to appeal are limited.
But the Supreme Court ruling will likely embolden the administration to make cuts to the ranks of workers who are past their probationary period.
