Could a Case From 1886 Block Trump From Defeating the Deep State?

Could a Supreme Court case from 1886 thwart President Trump’s push to purge the bureaucracy? That’s a question after the Nine punted for now on Mr. Trump’s appeal in the case of a fired federale, Hampton Dellinger. A district judge will hear his case tomorrow. As the head of an agency, Mr. Dellinger could find his job in jeopardy. Yet countless other rank-and-file staffers could be shielded by a 19th-century precedent: United States v. Perkins.  

Our own view is that the Constitution, rightly construed, gives the president the power to hire and fire any executive branch employee. That view reflects the Framers’ understanding that it is in solely the president that the executive power is vested. The president needs “the authority to remove those who assist him in carrying out his duties,” as Chief Justice Roberts has put it. Yet the high court has drawn a constitutional line between principal and inferior officers.

In 2020, in Seila Law v. Consumer Financial Protection Bureau, the Nine found the president has broad authority to fire a “principal” officer. Yet the high court, pointing in part to Perkins, conceded that Congress may constrain the president from firing “inferior” officers who have “no policymaking or administrative authority.” Such “inferior” officers are among the federal employees whom Mr. Trump is seeking to cashier. Cases are coming up in the courts.

The Seila Law precedent would seem to bolster Mr. Trump’s argument that he can fire Mr. Dellinger, the head of the Office of Special Counsel, without cause. Meanwhile, the lawsuit brought 14 decades ago by a naval cadet-engineer named Lyman Perkins could hamstring Mr. Trump’s broader campaign to clean house across the bureaucracy. Perkins graduated from Annapolis in 1881 and served as a cadet-engineer until 1883, when the Navy Secretary fired him.

Perkins called that illegal, pointing to a law stating that “no officer in the military or naval service shall in time of peace be dismissed from service” absent a court-martial, Justice Stanley Matthews wrote for the court. The Nine sided with Perkins, citing the lower court: “When Congress, by law, vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest.”

The Perkins decision came down as Congress was laying the foundations of the Deep State by forging a federal civil service of bureaucrats who could not be fired without cause. The Sun at the time was skeptical of the constitutionality of these measures, which it decried as “so-called reform.” Yet the Sun expressed empathy for Perkins’s cause, calling his case a “peculiar one” and stating that Congress must “come to the rescue” of others in his position.

The Perkins dispute arose because Congress had passed a law with the “laudable aim of reducing the surplus of officers in the navy,” the Sun explained. The Navy Secretary, though, had applied the law retroactively, causing “illegal” terminations. The Sun suggested that with cadet-engineers like Perkins restored to their posts, many “will resign from the overcrowded service,” even if all “who choose to remain in the service will have an unquestioned right to do so.”

We don’t mind saying that the crisis America faces ups the ante in Mr. Dellinger’s case. We learned in Mr. Trump’s first term and in the four years after it that our government has become infested with bitter leftists who are determined to block and undermine — resist is the word they like — our leadership from carrying out the program on which they stood and won a mandate. That raises the stakes that the Supreme Court will weigh.

How Mr. Dellinger might address that issue we will see. If the Nine finds that Perkins, despite its antique vintage, is still binding precedent, it could impede Mr. Trump’s ability to reform the executive branch on his own. In that case, it would behoove Mr. Trump and the GOP Congress to get to work on revising the civil service laws that shield the Deep State. Or the court might break precedent and allow Mr. Trump to redeem his campaign promises.