The impact of the recent Supreme Court decision creating a sweeping constitutional presidential immunity out of whole cloth will be felt for a long time. It may be especially impactful if Donald Trump returns to the White House.
As Justice Ketanji Jackson warned in her dissent: “the majority’s new Presidential accountability model undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.”
The illegality of Donald Trump’s actions while he was in office is still playing out in several courthouses and need not be recounted here. Further, what he has done in his past three years out of office as the head of the Trump Corporation as evidenced by recent court convictions for massive business fraud as well as tax fraud and falsifying business records offers scant comfort that Mr. Trump’s penchant toward illegal executive actions has abated.
In short, bolstered by the absolute civil and criminal immunity conferred upon a president for any “official action,” there is a very real concern that a re-elected President Trump would feel completely unleashed to order subordinates to destroy or wrongfully withhold records, illegally alter or falsify documents, or commit other crimes. Short of impeachment, this Supreme Court ruling holds such a rogue president harmless and bars the introduction of evidence about or even inquiries into his/her motives.
Under the Whistleblower Protection Act, a civil servant has the “right” to refuse an illegal order i.e., an order violating a law or regulation. This right boils down to an affirmative defense against a termination or other discipline for insubordination. Unfortunately, as a practical matter, this means the employee must first suffer the threat of or actual termination or other punishment before employing this affirmative defense. This is akin to having the “right” to health insurance if you are hospitalized in a car wreck caused by a wrong-way driver.
The forum for raising this defense will, in most cases, be the Merit Systems Protection Board, the civil service court system. However, the last time Trump was in office, he failed to appoint any members to serve on the MSPB, which quickly lost its quorum to decide cases.
In fact, for most of the Trump term, the three-member MSPB had no members at all, causing the appeals from civil servants to simply stack up, with the backlog ballooning to ultimately exceed 3,000 cases before Biden appointees could be confirmed to start hearing appeals. Three years into the Biden term, the MSPB backlog remains, although it is shrinking by the month.
Fortunately, if Trump is elected, we are unlikely to see a repeat of a complete MSPB shutdown. MSPB terms are for seven years. The first two Biden appointees were confirmed in March and May of 2022, meaning that barring resignation, they would be in place throughout a second Trump term. The third Biden appointee was confirmed this past May.
Civil service removals are reviewable in federal court if based upon a constitutional claim or in cases where the action is final, with no MSPB appeal. This latter scenario typically arises in cases where the termination or other discipline was upheld by an MSPB judge, and no appeal was filed with the Board itself. This would, in essence, require a now-unemployed federal worker to mount a federal court challenge – hardly an easy undertaking.
Even the slim possibility that a federal employee could legally defy a president has caused Trump to embrace a proposed rollback of the civil service, making all employees in decision-making roles at-will, meaning they could be fired without legal recourse. In the words of his running mate, JD Vance, the president should have the power to summarily “fire every single mid-level bureaucrat, every civil servant in the administrative state.”
For nearly 150 years, the federal merit system has protected public servants from being replaced for partisan purposes. Depending upon this November’s election results, the merits of continuing our merit system may be revisited.
Regardless of the election outcome, PEER stands poised to continue providing free legal representation to public servants who are restrained by politics from truly serving the public.
Jeff Ruch is the former Executive Director of PEER and now serves as its Pacific Director. 
