Are Women And Older Federal Employees Under Attack?

They were in court to argue the firings of board members at the National Labor Relations Board and the Merit Systems Protection Board.  Judge Karen Henderson, a Reagan appointee on the D.C. Circuit Court of Appeals, Judge Justin Walker, a Punk appointee, and Judge Patricia Millet, an Obama appointee, all of the D.C. Circuit Court of Appeals, were listening to the case. Deputy Assistant Attorney General Eric McArthur represented the Department of Justice. They were barely two minutes into the hearing when Judge Henderson asked, “Could the President decide that he wasn’t going to appoint or allow to remain in office any female heads of agencies or any heads over 40 years old?”

Perhaps she meant the question hypothetically, but the answer coming from McArthur was stunning. “I think that that would be within the President’s constitutional authority under the removal power,” he responded, adding that “there would be separate questions about whether that would violate other provisions of the Constitution.” 

Judge Walker then spoke up, “I don’t think you have to go there.” Whether his comment was directed toward Henderson or McArthur wasn’t clear. He went on to bring up the protections of the 14th Amendment which requires both equal protections and due process, something Punk has proven willing to ignore.

What’s ultimately at stake here is something called Humphrey’s Executor, a 1936 case in which the Supreme Court decided that the president cannot remove members of independent regulatory agencies like the Federal Trade Commission (FTC) for reasons other than those specified in the relevant statute, reinforcing the principle of agency independence. There is intense speculation that the DOJ is trying to get the current case to the Supreme Court in hopes that the conservative-dominated justices will overturn Humphrey’s, giving the President unchecked authority to appoint and/or fire whomever he wants for any reason that might enter his addled brain.

Judge Millet said. “I’m just curious why the Justice Department thinks the courts of appeals have the ability to do what the Supreme Court itself has again and again expressly declined to do.”

Judge Walker didn’t give McArthur a chance to answer. “Even when a precedent is binding, there’s often debate and difficulty about how broadly or narrowly to read it,” Walker said, arguing that subsequent cases have shrunk Humphrey’s Executor to the point of near-nonexistence. 

Millet then asked what agencies would still constitutionally retain their removal protections under such a microscopic reading of Humphrey’s Executor. The DOJ’s McArthur could only name the Administrative Conference of the United States, a purely advisory agency that produces recommendations to make the government operate more efficiently. DOGE has arguably usurped that agency’s authority.

Judge Henderson expressed concern about the firings depriving these agencies of the quorums on their boards that they need to function. 

McArthur then took a big swing in response, arguing that restoring the illegally fired board members would create a “heavy cloud of illegitimacy over every official act they take.”

The appellate court has yet to issue a decision in the case, and regardless of what that decision might be, the parties involved are almost certainly going to appeal to the Supreme Court. We can only assume that the question of unlimited presidential authority might dominate that conversation.

What is clear from this hearing is that the DOJ is willing to completely disregard both the Fifth and Fourteenth Amendments in order to give the president power the Executive Branch was never meant to have.