Federal Workers Have Scant Job Protection in the Constitution

President Donald Trump’s hyperaggressive use of executive power in the first months of his presidency has sent many on the left seeking refuge in the Constitution. Commentators have pointed out the ways his actions are at odds with our founding principles, and advocates have filed more than one hundred cases challenging the constitutionality of moves like dismantling the U.S. Agency for International Development, abolishing birthright citizenship, and targeting sanctuary cities.

But when it comes to the administration’s firing of thousands of federal employees, the Constitution may offer only limited recourse, if any. As currently written, it does not explicitly mention civil service — and there is little reason to believe that a majority of the current Supreme Court would be willing to read into it any job protections for federal workers beyond the bare minimum of due process.

The framers wrote the Constitution in 1787. At the time, a large, professional, and apolitical civil service serving a country of 340 million people was far from their minds. They could not have imagined fifteen cabinet agencies, several other executive agencies, numerous independent agencies, and over two million employees. They thus gave the president the sole power to appoint “Officers of the United States,” subject to senate confirmation, with the proviso that Congress could by law vest the appointment of “Inferior Officers” in the president alone or in the “Heads of Departments.” 

Over time, the federal government grew immensely, and the need for a professional and apolitical federal civil service became clear. Congress’s passage of the watershed Pendleton Act of 1883 established a merit-based system of hiring civil servants. The Progressive Era saw the further growth of government agencies, sometimes referred to as the “fourth branch” of government, that could bring a more apolitical expertise to bear in solving the nation’s problems. The New Deal took the administrative state to new heights, and the post–Cold War security state increased the need for a large cadre of civil servants to ensure the country’s military and foreign policy might. 

Several additional milestones for the federal workforce followed the Pendleton Act. In 1962, President John F. Kennedy first recognized the right of federal employees to bargain collectively. In 1978, Congress passed the Civil Service Reform Act, which established two key independent agencies: the Merit Systems Protection Board, a quasi-judicial body through which aggrieved civil servants can litigate complaints about violations of civil service protections, and the Federal Labor Relations Authority, which handles disputes between agencies and their employee unions. The establishment of the latter gave Congress’s imprimatur to federal employee unionization, which previously had only been recognized by Kennedy’s order. In addition, with the passage of the Civil Rights Act of 1964, agencies proceeded to set up offices for processing internal employee discrimination complaints.

This is the system that the Trump administration is eviscerating by laying off thousands of longtime employees at cabinet agencies like the Department of Education and the Department of Health and Human Services, attempting to reclassify thousands of employees as political appointees who do not receive civil service protection through “Schedule F,” and ignoring collective-bargaining agreements with federal unions — to list just a few recent moves. Adhering to the extreme “unitary executive theory,” Trump claims that these actions flow from his authority over everything and everybody in the executive branch. He asserts the authority to ignore or cancel any check on his power within the branch, even if established by Congress.

With the Republican-led Congress currently submitting passively to Trump’s overreach, many people understandably hope that the courts will be the last bulwark against a president arrogating power. And indeed there have been a couple of bright spots. Some federal district courts have enjoined firings or ordered fired employees reinstated. But these victories are temporary, tentative, and based primarily on statutes that Trump is challenging fiercely. 

Americans never amended the Constitution to accommodate our more modern understanding of what the executive branch should look like. Instead, we took for granted that presidents would generally respect legislative checks on their authority and that a pragmatic judiciary would read the Constitution as a living document, willing to accommodate the growth of the administrative state and the modernization of the executive branch. The current Supreme Court, however, has shown its willingness to abandon this accommodating approach and may validate many of Trump’s claims of absolute power within the executive branch.

Unlike the federal government, many states have updated their constitutions to reflect a desire for a qualified public workforce with sufficient job protections. Hawaii, Louisiana, and Michigan, for instance, all establish in their constitutions a nonpolitical civil service. Louisiana’s constitution (article X) goes into great detail about the positions that receive civil service protection, as well as the commissions to hear complaints about violations of merit protection and processes for employees to protect themselves. Employees routinely avail themselves of these protections through litigation. In some states, such as Georgia, the constitution merely authorizes a classified system without laying out details; the state’s supreme court has held that the legislature can move some government positions out of civil service protection. Nonetheless, the contrast with the federal system is still stark: the court approved changes to the state civil service system that were implemented by law rather than by executive fiat.

Several states go further than just providing civil service protection and expressly recognize a right to collectively bargain, including for public employees. Such provisions ensure that a governor cannot claim that a particular collective bargaining agreement is unconstitutional. What do all these states have in common? Their constitutions, or at least the specific provisions in question, were enacted far more recently than 1787.

Congress and the states could have amended the Constitution to expressly incorporate some of the changes that had happened on the ground. But due to the immense difficulty of amending the Constitution, they did not bother. In the absence of a president so aggressively attempting to dismantle executive branch checks on his power and a judiciary so receptive to such aggression, they may not have seen much of a need to do so at the time. With the Trump administration going after the federal workforce with its current ferocity and a Supreme Court more open to such expansive assertions of presidential power, however, it is now clearly regrettable that, unlike states, the nation never updated the Constitution in these crucial respects.

Paul Diller is a professor at Willamette University College of Law.

Suggested Citation: Paul Diller, Federal Workers Have Scant Job Protection in the Constitution, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 25, 2025), https://statecourtreport.org/our-work/analysis-opinion/federal-workers-have-scant-job-protection-constitution