An overlooked line in Trump’s State of the Union address could dramatically expand the power of the executive branch if implemented

US President Donald Trump. Photo: Nicholas Kamm / AFP/ Getty Images.
  • During his State of the Union address last week, US President Donald Trump called on Congress to allow his cabinet to fire federal employees if they “fail[ed] the American people.”
  • Experts say such a proposal would undermine the independence of federal agencies and would be “irresponsible.”
  • Such powers would also be quite difficult to implement because of existing protections for civil servants.
  • Trump has come under scrutiny for his heavy-handed approach to heads of federal agencies, and the new powers he proposed would change the “bedrock of the administrative state,” according experts.

From immigration to the economy to North Korea, President Donald Trump hit on a variety of huge policy areas during his State of the Union address last week – but there was one line in particular that, while largely overlooked, could have potentially massive consequences for the reach of executive power and the rule of law at the federal level.

The president seemed to instruct Congress to authorise sweeping new powers for the executive branch.

“Tonight,” Trump said, “I call on the Congress to empower every Cabinet secretary with the authority to reward good workers – and to remove federal employees who undermine the public trust or fail the American people.”

Such a move would change the way the White House and the president’s cabinet would operate, and might allow the president’s appointed staff to make qualitative judgments on which federal employees to fire, regardless of their independence from the executive branch.

“It’s an ominous statement,” Yale University law professor Cristina Rodríguez told Business Insider. ” I would hope that Congress would not enact legislation of that sort, because it threatens the independence of the civil service, and would make the entire administrative state susceptible to politics. For politicians to demand loyalty from civil servants, it would undermine the large existing checks on executive power.”

Rodríguez explained why the independence of agencies within the federal government is so important.

“There’s a principle of independence that is central to the operation of many agencies like the FBI or agencies that make policy like the [Environmental Protection Agency], where independence from people’s political preferences and ambitions ensures that law enforcement respects the rule of law and doesn’t simply advance the agenda of whoever is in charge,” she said. “Absolutely it would lead to an abuse of power, that would be fairly certain.”

Adam Winkler, a constitutional law professor at the University of California, Los Angeles, backed up Rodríguez’s claims.

“Trump’s call to give the executive more power to fire civil servants is irresponsible,” Winkler said. “Civil servants have the protections they do because there was a long history of political abuse. Elected officials have demanded personal fealty and political support. The honorable people who do the daily work of our government should be protected from partisanship.”

But Harvard Law professor Charles Fried said that even if Trump’s proposal was actually put up for consideration, it would be extremely difficult to implement.

“If we’re talking about civil servants there needs to be statutory authorization,” Fried explained. “Presently there’s a very complicated set of statutes protecting civil servants, and also defining who civil servants are. The vast majority have civil service protection, and any disciplinary actions or removals have to follow particular protocols. But something like, ‘You’re fired,’ there’s nothing like that.”

Trump’s eagerness to fire civil servants raises concerns of overreach

Trump has exercised a heavy hand against federal employees throughout the first year of his presidency, firing James Comey as FBI director in May and pressuring others like FBI Deputy Director Andrew McCabe to step down. Trump also reportedly attempted to fire special counsel Robert Mueller, who is leading the investigation into Russian interference in the 2016 election, last June, and has pressured Deputy Attorney General Rod Rosenstein, Attorney General Jeff Sessions, White House attorney Don McGahn, and FBI Director Christopher Wray at various points to carry out his personal agenda, which at times involved firing individuals Trump didn’t feel were loyal to him.

In Sessions’s case, Trump had attempted for weeks to prevent the attorney general from recusing himself from the Russia investigation in hopes that Sessions would be able to protect Trump from it. After Sessions followed through on the recusal, Trump began asking his associates if he should fire Sessions as well.

Trump’s affinity for attempting to force out federal employees for things like lack of loyalty or refusals to follow his orders on the Russia investigation have already attracted the attention of investigators like Mueller who are looking into whether Trump obstructed justice. But the kind of sweeping powers he proposed during the State of the Union, Trump’s Cabinet, along with any members of future presidents’ staff, could, if implemented, dramatically expand leeway to use political tests to fire federal employees, appointed or not.

Rodríguez said the prospect of such powers would fundamentally alter the nature of the federal government.

“Something like that to happen would require legislation that would undo the bedrock of the administrative state,” she said.