I Am Your Retribution.’ Trump Knows What He Wants to Do With a Second Term.


Publish Date:
December 20, 2023
The New York Times
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David Engstrom, the LSVF Professor in Law and the Co-Director of the Deborah L. Rhode Center on the Legal Profession, wrote by email:

As with so much else in American politics nowadays, it will be for courts to decide whether Schedule F runs afoul of the Civil Service Reform Act of 1978. There are good arguments either way. Trump’s executive order ran contrary to several decades of congressional actions creating a professional and independent civil service — a notable strike against longstanding case law sketching the limits of the president’s policy initiation power.

But, Engstrom added,

were the issue to go before courts in a second Trump administration, it is equally notable that Schedule F is consistent with a pillar of the Roberts court’s separation-of-powers jurisprudence, the “unitary executive” theory, which holds that the Constitution vests the president with extensive control over the workings of the executive branch. That broad, pro-president view will surely overhang legal challenges, particularly at the Supreme Court.

Michael W. McConnell, who served as a George W. Bush appointee to the United States Court of Appeals for the 10th Circuit and is now director of the Stanford Constitutional Law Center, shared some of Goitein’s qualms, writing by email:

The Emergencies Act is dangerously sweeping and should be reconsidered. At the time it was passed, Congress retained a congressional veto, but congressional vetoes were subsequently declared unconstitutional. Now there is no mechanism for congressional override except by passage of ordinary legislation, which is subject to presidential veto and thus politically almost impossible.

Anne Joseph O’Connell, a law professor at Stanford whose research focuses on administrative law and the federal bureaucracy, wrote by email that Trump may have the authority to create a new Schedule F. But, she added, the scope of the change in traditional practices called for by the proposal may make it subject to judicial review.

“The statute provides the president broad authority to create exceptions to the civil service,” O’Connell wrote, but compared with earlier executive changes, “Schedule F would cover vastly more positions. I think such an enactment might run up against the major questions doctrine.”

In 2022, the Congressional Research Service described the major questions doctrine:

Congress frequently delegates authority to agencies to regulate particular aspects of society, in general or broad terms. However, in a number of decisions, the Supreme Court has declared that if an agency seeks to decide an issue of major national significance, its action must be supported by clear congressional authorization.

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