At a coronavirus task force briefing last week, President Donald Trump floated the possibility of injecting bleach as a cure for the coronavirus. Soon after, the Centers for Disease Control and Prevention warned on Twitter that disinfectants can cause health problems and should be used only according to their instructions. The apparent clash raised the question: What if the president threatens to fire officials who refuse to echo his dangerous speculations?
The Trump administration has been using the president’s power over personnel (the power to hire and fire federal workers) to prevent government officials from sharing facts about the coronavirus that are inconsistent with the administration’s preferred message. Its actions underscore the dangers of increasing presidential control over an administrative state that could otherwise be guided by expertise and facts: Autocratic presidents can use the personnel power to suppress facts and mislead the American people. Notwithstanding that threat, the Supreme Court appears poised to give the president more power over personnel, not less—and prevent Congress from protecting federal officials in the future.
It’s not hard to see how the president’s use of the personnel power runs the risk of confusing and harming Americans. On April 21, the Washington Post reported that CDC Director Robert Redfield had warned that a subsequent wave of the virus “next winter will actually be even more difficult than the one we just went through.” That warning is inconsistent with the president’s preferred message that things are getting better. Thus, at the next day’s coronavirus task force briefing, Donald Trump trotted out the CDC director to cast doubt on the story. (The director maintained that while the quote was accurate, “the headline [of the story] was inappropriate.” The headline stated, “CDC director warns second wave of coronavirus is likely to be even more devastating,” rather than “more difficult.”) The White House press secretary subsequently suggested Redfield was merely talking about the need for flu shots.
Also on April 22, the official who led the federal agency involved in developing a vaccine, Dr. Rick Bright, claimed that his superiors had removed him from his post after he questioned the viability of hydroxychloroquine as a treatment for the coronavirus. A recent study by Veterans Affairs hospitals found more deaths among coronavirus patients who were treated with hydroxychloroquine than those who were treated with other care. But the president had previously described the drug as a “game-changer” and expressed hope that the drug would be used more broadly.
These examples illustrate some of the troubling consequences of the president’s power over personnel—or at least this president’s power over personnel. Presidents can exercise the power to hire and fire federal officials in ways that both obscure facts and endanger lives—such as by minimizing the looming specter of another major coronavirus outbreak in the coming fall or winter or by touting bleach as a cure for the virus. Presidents can put their employees to the choice of staying on message or losing their jobs.
What if Congress wanted to do something about that—and tried to protect expert health officials from a president who is allergic to the facts?
More than 75 years ago, the Supreme Court allowed Congress to insulate federal officials from presidential removal. In Humphrey’s Executor v. United States, the court said that Congress could prevent presidents from removing Federal Trade Commissioners except for “inefficiency, neglect of duty, or malfeasance in office.” These restrictions are sometimes called “for cause” removal restrictions because they prohibit presidents from removing an official for mere policy disagreements. (Indeed, no head of any agency has ever been removed for cause.) In Humphrey’s Executor, the court reasoned that being “independent of executive authority” was necessary for officials “to exercise the trained judgment of a body of experts,” rather than being subject to political whim.
But Congress might not be able to rely on that decision for much longer. Conservative judges, including one of Trump’s nominees to the Supreme Court, have started to question the wisdom and correctness of Humphrey’s Executor. They have maintained that the Constitution requires the president to exercise unfettered discretion over the power to fire high-level executive officers. When Justice Brett Kavanaugh was a judge on the U.S. Court of Appeals for the D.C. Circuit, he claimed that agencies led by officers protected by for-cause removal were an anomaly—and questioned whether Humphrey’s Executor was correctly decided.
They have maintained that Article 2 of the Constitution vests all executive power in the president and that the executive power includes the ability to fire the heads of administrative agencies. (My colleague Julian Mortenson has debunked this interpretation of Article 2 in a series of papers.)
This term, the full Supreme Court may very well agree with Kavanaugh’s aggressive interpretation of Article 2. The court is poised to decide a case about the constitutionality of the structure of the Consumer Financial Protection Bureau. In the course of urging the court to find the bureau unconstitutional (the bureau is led by a single director who is removable for cause), the Trump administration is asking the court to either overturn Humphrey’s Executor or to limit the decision to its facts. Either route would ensure that presidents, including this one, have the authority to remove, for any reason, the heads of any agencies that are exactly the same as the FTC.
That would mean that Congress could not insulate agencies or departments—including a new office of pandemics—headed by single individuals from presidential removal. A decision along those lines could also limit Congress’ ability to protect existing offices and office heads from presidential control.
Critics of the administrative state like to say that increasing presidential control over agencies would be good for the health of our democracy and the rule of law. But as the coronavirus has made clear, there are costs to increasing presidential control as well: What if the president can simply fire every official who says that injecting bleach could kill you?