Politicization in the shadow of the shadow docket

Trump likes to be able to fire people, especially public employees he suspects of lacking complete loyalty to him. Two problems: 1) it is illegal to fire federal employees without cause and 2) Trump could not get a piece of legislation though Congress to make it legal.

Two solutions: 1) Pretend the law does not exist - just fire people anyway, and 2) at the same time build a parallel legal infrastructure to provide an ex post justification.

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Trump has fired civil servants with less justification than offered to contestants on The Apprentice. Rather than demonstrate they are poor performers, he merely asserts an Article II constitutional right that supersedes any law, and dares them to sue. This is unitary executive theory in action, offering an underlying logic for the parallel legal infrastructure that greatly expands executive authority while bypassing Congress.

Americans have a great faith in lawsuits, but what do you do when the law is on your side, but the venues for a hearing are demonstrably hostile? In order to ensure the courts were not overrun with federal employee complaints, the Civil Service Reform Act of 1978 created independent units in government, the Office of Special Counsel and the Merit Systems Protection Board, to hear cases when employees believe they were fired inappropriately, including for political reasons. The Board typically sides with the government, but people who want more firings for any reason see the MSPB as an impediment.

The credibility of the employee appeals process depends upon the independence of the MSPB. After all, if you were fired by one Trump apparatchik for not being sufficiently loyal, what hope of a reasonable hearing can you expect from another? How can the Board protect merit, when merit is defined by Trump and his appointees, rather than by law?

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