Mar. 19, 2025, 12:27 pm ET
The Department of Justice (DOJ) asserted in a court hearing on March 18, 2025, that the President has the constitutional authority to fire all female agency heads and those over 40 years old. This assertion came during a hearing at the D.C. Circuit Court of Appeals, where the DOJ is arguing to overturn removal protections for independent agencies, aiming to take the case to the Supreme Court.
During the hearing, Judge Karen Henderson posed a hypothetical question to Deputy Assistant Attorney General Eric McArthur, asking if the President could decide not to appoint or allow to remain in office any female heads of agencies or any heads over 40 years old. McArthur responded that such an action would be within the President’s constitutional authority under the removal power. However, he noted that there would be separate questions about whether this would violate other provisions of the Constitution.
The case stems from the Trump administration’s efforts to assert broader presidential power over the executive branch. The DOJ’s argument is centered around the President’s removal power and the unitary executive theory, which posits that the President has extensive control over the executive branch. This theory has been a contentious issue, with critics arguing that it could lead to political interference and the politicization of independent agencies.
The hearing involved the firings of board members at the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB). The DOJ’s stance has raised concerns about the potential for mass firings and the undermining of the independence of federal agencies. Experts predict that if the DOJ wins, it could lead to the President having greater control over the executive branch and the ability to fire civil servants without significant legal barriers.
The judges on the panel had differing views. Judge Justin Walker, known for supporting the unitary executive theory, attempted to mitigate the DOJ’s stance by suggesting that the hypothetical scenario posed by Judge Henderson was extreme. Judge Patricia Millet, on the other hand, expressed concerns about the impact on agency functionality and the potential for political interference.
The case is linked to historical precedents such as the 1936 *Humphrey’s Executor* case, which established removal protections for independent agencies. The Trump administration has been involved in other controversies related to the politicization of the DOJ, including the firing, demotion, and reassignment of career officials. The trend of increasing presidential power and the politicization of independent agencies is a significant concern, with potential impacts on the rule of law and the independence of federal agencies.
The DOJ’s assertion highlights a broad interpretation of presidential removal power, which could have far-reaching implications for the executive branch. If the precedent is overturned, it could allow the President to fire civil servants without significant legal barriers, potentially leading to a highly politicized executive branch.
The outcome of this case will be closely watched by legal experts and policymakers, as it could set a precedent for future presidential actions and the independence of federal agencies. The hearing on March 18, 2025, marked a significant step in the ongoing debate over presidential power and the role of independent agencies in the executive branch.
