In late May, a federal court handed down an order pausing President Donald Trump’s plans to fire a simply astonishing amount of federal workers. As Judge Susan Illston explains in her opinion, the proposed cuts are so sweeping that they would effectively shut down multiple federal programs.
To give just a few examples, Santa Clara County, one of the plaintiffs in this suit, runs a preschool program for 1,200 children that is funded by a federal grant that expires at the end of June. But the county is unable to renew that grant because the federal employees who manage that grant “have now all been laid off and their San Francisco office closed.” The county argues that without the grant, it may need to lay off 100 early learning employees.
The National Institute for Occupational Safety and Health has 222 workers that research health hazards facing mine workers, but the Trump administration plans to fire 221 of them. Retirees are unable to reach the Social Security Administration due to layoffs, potentially making benefits inaccessible to many. According to Illston, “one individual got through to a representative only after eleven attempts to call, each involving hours on hold.”
And things will likely get much worse if the Trump administration can fully move forward with their planned firings as outlined in the case.
The plaintiffs in this case, now known as Trump v. American Federation of Government Employees, claim that the Department of Energy “proposed cuts of up to 50% of [the] agency’s workforce.” The Centers for Disease Control and Prevention, they claim, plans to eliminate its entire office that “monitors lead exposure in children.” The National Institute of Occupational Safety and Health, the plaintiffs claim, plans to cut 93 percent of its staff.
And this is just a small sampling of what is coming if Trump gets his way. The president’s budget called for more than 100,000 cuts — and many agencies’ plans for mass layoffs are not yet public.
Illston’s order is now before the Supreme Court. Trump’s lawyers asked the justices to block Illston’s decision earlier this month. Because the case arises on the Court’s “shadow docket,” a mix of emergency motions and other matters that get decided on an expedited basis, the Court could rule on Trump’s request at any time.
Many of Trump’s legal arguments will be familiar to anyone who has followed his second-term litigation strategy. When Trump loses a case in a lower federal court, his lawyers often argue that the court lacked jurisdiction to hear that case, and that the case must be shifted to a different forum — often a forum that cannot actually give the plaintiffs the relief that they seek.
And so Trump’s brief claims that many of the AFGE plaintiffs’ challenges to the proposed mass firings must be heard by the Merit Systems Protection Board (MSPB), an agency that is currently incapable of hearing these disputes because it lacks a quorum — two of the board’s three seats are vacant.
The Trump administration also points to a statute permitting the US Office of Personnel Management to “prescribe regulations for the release of competing employees in a reduction in force,” claiming that this law authorizes the sweeping mass firings contemplated by Trump.
The plaintiffs, meanwhile, primarily argue that Trump’s proposed firings are so widespread that they would fundamentally transform the federal government in ways the president cannot do on his own. “Whatever one’s view on the proper size and scale of government,” their brief argues, “that vision may not be imposed by unilateral executive order, without engaging in the dialogue and cooperation with Congress that the Constitution requires and that Presidents have historically pursued.”
This argument will be familiar to anyone who followed the many fights over executive power during the Obama and Biden administrations. In those fights, the Republican justices frequently ruled that, when the executive branch attempts to do something that is too ambitious, the courts must block it — even in some cases where the executive’s action was authorized by a broadly worded federal statute.
The Republican justices even invented a brand new legal doctrine, known as “major questions,” which provides that the executive may not make new policies of “vast ‘economic and political significance’” without an extraordinarily specific act of Congress authorizing that policy.
The stakes in the AFGE case, in other words, are even broader than the immediate dispute over whether Trump can fire so many government workers that entire federal programs cease to function. The case also will reveal whether the rules that the GOP justices invented to constrain Democratic presidents like Obama and Biden also apply to Republican presidents like Trump.
A brief history of the Republican justices’ approach to separation of powers
In 2014, President Barack Obama announced a bold new plan to allow as many as 4.3 million undocumented immigrants to live and work in the United States. The Obama administration justified this policy by stringing together a list of several different legal authorities.
The executive, for example, has “prosecutorial discretion” to decide which undocumented immigrants law enforcement should prioritize, and which immigrants it should leave alone — a principle that an 8-1 Supreme Court reaffirmed as recently as 2023. So the Obama administration argued it was merely instructing law enforcement not to prioritize the millions of immigrants that would benefit from its new program.
Meanwhile, federal regulations dating back to the Reagan administration permitted immigrants who are deprioritized in the way contemplated by Obama’s policy to seek authorization to work in the United States. A separate federal law permitted them to receive Social Security and Medicare benefits (assuming that they otherwise qualified for these programs).
The law, in other words, was fairly clear that the Obama administration could offer any individual undocumented immigrant a temporary right to live in the United States, to work here, and to receive certain benefits. All that Obama’s 2014 policy sought to do was make this same offer to millions of immigrants at a time.
The Supreme Court never formally struck down this program — when it reached the justices in a case known as United States v. Texas (2016), Republican Justice Antonin Scalia had recently died and the Court was split 4-4 between Democrats and Republicans. So the justices split down the middle in the Texas case, leaving a lower court order that blocked the program in effect.
But it was clear from the oral argument why the Republican justices found this program objectionable. Chief Justice John Roberts worried that, under the Obama administration’s legal argument, the president could “grant deferred removal to every…unlawfully present alien in the United States.” Justice Samuel Alito fretted that Obama could have simply announced that “we’re just not going to remove anybody.” Justice Anthony Kennedy suggested that there must be “limits” to the president’s “discretion,” and that when a program gets too big it becomes a “legislative, not an executive act.”
All of these concerns were rooted in a similar theory of the separation of powers. Even when federal law seemed to authorize the president to take a particular action, the Republican justices all seemed to believe that, at some point, that action becomes too ambitious for the president to do on his own. When this line is crossed, the president must persuade Congress to enact a new law which authorizes the president’s proposed policy.
The Court formalized this theory in its major questions doctrine cases, which established that the Court “expect[s] Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Again, the idea was that, at some point, a policy proposed by the executive branch crosses a line where it becomes too ambitious for the president to implement on his own authority — and the president must seek Congress’s permission before moving forward.
Under President Joe Biden, the Republican justices applied this major questions doctrine quite rigidly. In Biden v. Nebraska (2023), for example, the Court struck down a Biden administration plan that would have forgiven hundreds of billions of dollars in federal loans. These justices did so, moreover, despite a federal law which gave the secretary of education sweeping authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs…as the Secretary deems necessary in connection with a war or other military operation or national emergency” such as the Covid-19 pandemic.
Thus, even though Congress had broadly authorized the secretary to forgive federal loans, the Republican justices balked at the Biden administration’s attempt to use this power on such a grand scale.
Trump’s mass firings should also fit within this framework. No one really questions that the federal government may fire some federal workers that it deems to be inefficient or unnecessary. But the sort of mass firings contemplated by Trump are at least as ambitious and transformative as the immigration program in Texas or the student loans program in Nebraska. And the firings would certainly have great political and economic significance.
The Trump administration has already attempted to dismantle entire federal agencies, such as the US Agency for International Development. And Trump’s executive order calling for mass firings explicitly contemplates eliminating entire agencies or their “subcomponents.”
The scope of many agencies’ proposed layoffs are not yet public, but, as both Illston’s opinion and the AFGE plaintiffs’ brief lays out, the information that is public suggests many agencies will be gutted. It should go without saying that the Department of Energy, for example, would have to cease much of its existing work if it fired half of its workers.
The ultimate question in AFGE, in other words, is whether the limits on executive power that the Supreme Court imposed on Democratic administrations in cases like Texas and Nebraska also apply to a Republican president like Donald Trump.
