“[T]his Court has some work to do,” writes Justice Neil Gorsuch in his whiplash-inducing concurring opinion in Slaughter v. Trump, in which the Supreme Court ruled 6-3 that presidents have the constitutional authority to fire the heads of independent federal agencies at will. Unlike his colleagues in the majority, Gorsuch seems to acknowledge that “allowing so much . . . power to accumulate in the President’s hands invites real risks,” and that the Supreme Court “bears responsibility” for at least part of the overconcentration of power in a single person. But the lesson he takes is not, as one might have expected given the scale of the risks Gorsuch describes, that presidential power should be more limited or judicial power more restrained. Much the opposite.
Gorsuch envisions the Court as entering its “white knight” era, riding to rescue the victims of an imperial presidency by closely scrutinizing every congressional attempt to structure the government as it sees fit. In Slaughter, the Supreme Court held that the president could directly control heads of independent agencies by firing them, notwithstanding that Congress had granted sweeping authorities to those formerly independent agencies on the assumption that those powers wouldn’t be directly controllable by the president. As Gorsuch himself writes, “it is this Court that today allows the President to remove those agencies’ leaders and exercise effective control over all their powers.” His suggested remedy, however, is not increased judicial restraint. Instead, he appears to conclude that the “task of fixing a problem belongs to those who made it,” that the Court has “no shortage of tools” to do so, and that it should “begin subjecting [powers Congress granted to the executive branch] to the Constitution’s constraints.” But in the face of mounting presidential and judicial control, Congress should act now to forcefully assert the full extent of its authority over the federal bureaucracy.
A more assertive role for Congress may seem counterintuitive, given the Slaughter majority’s apparent appetite for increasing presidential power vis-a-vis the bureaucracy. But though its rhetoric sweeps more broadly, the Slaughter decision itself concerns only presidential control via removal of principal officers. Other recent Supreme Court decisions indicate some consensus that Congress can constitutionally exercise authority over other aspects of overseeing the bureaucracy. (See, e.g., Free Enterprise Fund v. PCAOB, 561 U.S. 477 (2010); United States v. Arthrex, 594 U.S. 1 (2021). In the wake of the Slaughter decision, Congress can no longer require that its laws be administered by politically insulated agency leadership, therefore it must assert other methods of congressional authority to oversee and regulate how the laws are administered.
Gorsuch himself laid out a compelling case for increased congressional control, although he seemed to settle on the conclusion that judicial intervention was the more likely and thus favored path. Given the expansion of the number of authorities at the president’s disposal to advance the president’s aims, Gorsuch expressed concern over the mechanisms of additional control over the civil service that Congress had given to the president in the Civil Service Reform Act: The consolidation of so much power — that of the “fourth branch” — in the president is made worse, Gorsuch opines, because presidents have so many “ways to consolidate their influence over agencies.” For example, he writes, “Presidents can sometimes adjust the reach of the civil service laws,” pointing to a statutory exception to the law that “ordinarily afford[s] rank-and-file agency employees considerable protection against removal.” Given the exception in that statute, Gorsuch points out, “Presidents can seek to exert greater control over not just agency leaders but their subordinates as well.” These are exactly the sorts of laws protecting the integrity of the bureaucracy that Congress can and should strengthen.
Gorsuch’s response is not primarily that Congress take up the cause of rebalancing power, but that the Court act more aggressively in policing what it sees as the boundaries set by the separation of powers doctrine. “Fortunately,” Gorsuch opines in response to the problems this Court’s jurisprudence have caused, “this Court already has many doctrines” at its disposal to solve them. He lists a number of doctrines, including the non-delegation doctrine, Major Questions Doctrine, vagueness, and adjudication-related doctrines stemming from constitutional principles including the Due Process Clause, Seventh Amendment, and Article III.
Gorsuch writes alone, but there is reason to think that he is simply the only one saying the quiet part out loud, and that many of his colleagues similarly favor increasingly assertive applications of those doctrines. For example, six justices invoked the Seventh Amendment to strike down the Security and Exchange Commission’s ability to levy securities-fraud penalties after proceedings before an Administrative Law Judge in SEC v. Jarkesy, 603 U.S. 109 (2024). And there were six votes for invoking the Major Questions Doctrine to hold that the Environmental Protection Agency couldn’t force a shift away from coal (West Virginia v. EPA, 597 U.S. 697 (2022)), and that the Centers for Disease Control and Prevention couldn’t issue a nationwide eviction moratorium (Alabama Association of Realtors v. HHS, 594 U.S. 758 (2021)) and the Occupational Safety and Health Administration couldn’t issue a vaccine-or-test mandate (NFIB v. Department of Labor, OSHA, 595 U.S. 109 (2022)) during the COVID-19 pandemic. Gorsuch’s concurrence in Slaughter is a celebration of judicial interventionism in how Congress legislates to empower, structure, and oversee the bureaucracy. It is profoundly anti-democratic in its subjugation of the most politically responsive branch of government to the least.
Congress should read Gorsuch’s concurrence for what it is: an explicit and direct threat to Congress’ role in American governance. There are a number of reasonable responses to this threat of judicial supremacy, including seriously considering court reform proposals, revisiting the president’s emergency powers, or considering vesting authority outside the executive branch. But given that the immediate impact of Slaughter is to aggrandize the president’s power over the government itself, Congress should pass a set of legislative reforms that reestablish Congress’ own authority over the bureaucracy.
Congress Should Get Off the Sidelines
The laws governing how government works suffer from a key vulnerability: They assume a president will act in good faith as a leader and steward of the bureaucracy. As a result, the Civil Service Reform Act (CSRA) grants expansive and ill-defined authority to the president in some places, creates somewhat vague standards for presidential regulation of the civil service in others, and — since the last of the Reorganization Acts expired in 1984 — has failed to make explicit its authority over the structure and organization of the government.
To be clear: the meaning of the CSRA has been largely beyond question for decades, and Congress unquestionably has authority to regulate and structure federal agencies. But the Trump administration has exploited instances of allegedly ambiguous textual language — for example, by creating Schedule Policy/Career regulations, which strip tenure protections from some civil servants, or by promulgating a new Suitability and Fitness regulation that circumvents statutory removal protections by creating a fast-track firing mechanism for some civil servants. And the administration stepped in to fill space left by congressional silence, including by ordering a sweeping reduction and restructuring of federal agencies without congressional involvement or oversight. In light of this aggressive presidential stance, Congress must push back.
The good news is that Congress created these statutes, and it can legislate today based on the lessons taught by the Trump administration and the Roberts Court. Even the modern Court has affirmed Congress’s “plenary” control over “even [the] existence of executive offices.” Free Enter. Fund v. PCAOB, 561 U.S. 477, 500 (2010); see also Buckley v. Valeo, 424 U.S. 1, 138–39 (1976); Myers v. United States, 272 U.S. 52, 129 (1926). Congress should step more fully into its constitutional role.
The reforms proposed below do not seek to strip the president of the legitimate authority to set policy direction, reorganize priorities, or hold agencies accountable. What they do is restore the basic architecture that has allowed the civil service to function relatively effectively across administrations of both parties for over 100 years: a workforce hired on merit, protected from political retaliation, and subject to congressional and judicial oversight. Crucially, these proposed structural reforms do not foreclose other reforms sincerely focused on optimizing the civil service for efficiency and delivery of programs and services. If anything, they are a necessary precondition to such reform efforts.
Rebalancing Authority Between the President and Congress
Congress must take back open-ended grants of authority over the civil service to the president. Key provisions of Title 5 — including 5 U.S.C. §§ 3301, 3302, and 7301 — vest expansive authority directly in the president to regulate the civil service, with few express criteria or guardrails by which to judge decisions. There are unique challenges to securing an injunction against the president, or review of his authority. Congress can take a number of approaches: It could transfer these authorities from the president to the Office of Personnel Management (OPM) or another agency, converting presidential action that is potentially more difficult to challenge into more readily judicially reviewable agency action. It could amend the statutes to add merit-system criteria that must guide all exercises of that power, which could also aid in judicial reviewability. Congress could require notice-and-comment rulemaking for certain changes to the people or structures of the bureaucracy. Finally, it could also consider adding a congressional approval mechanism for significant changes.
Reestablishing Effective Pathways for Judicial Oversight
Courts have interpreted the CSRA as creating a near-exclusive remedial scheme for federal employment disputes, channeling most claims through the Merit Systems Protection Board — which is now slow, politically captured, and no longer a meaningful path for most employees. Congress, of course, could do away with this “channel” entirely or effectively move the MSPB out of the executive branch. As a more modest alternative, it could amend 5 U.S.C. § 7703(b) to add two new exceptions to MSPB exclusivity: one allowing challenges to civil service rules and policies of general applicability to be brought directly in federal district court under the Administrative Procedure Act, and one expressly allowing individual employees to bring constitutional claims in district court in the first instance. This would keep run-of-the-mill employment disputes before the MSPB while allowing meaningful judicial oversight of policy changes and constitutional issues.
Personnel Policy Reform
The Trump administration seems to have taken the old adage that “personnel is policy” to heart, focusing much of its energy on changing out or controlling the people who staff the government, significant congressional action on this point notwithstanding. The administration has exploited alleged loopholes in the CSRA’s protections against politicized hiring and firing. It has sought to expand the share of federal employees without tenure protections through the creation of Schedule Policy/Career and Schedule G, categories of federal workers that don’t have the ordinary “tenure” and other protections that the law grants to most civil servants; created a fast-track firing mechanism that sidesteps all legal protections; gathered data on the politics of applicants via “loyalty” questions; and eroded civil servants’ ability to advocate for themselves by stripping collective bargaining rights from many.
In response to the increasing number of “at will” positions in government, Congress should clarify that 5 U.S.C. § 7511(b)(2) — which lists an exception to tenure-protected positions — has always applied only to positions held by political appointees. It should also create a 1 percent cap for at-will positions government-wide, leaving ample room for political leadership while preventing a complete patronage system. To re-center the exclusivity of CSRA’s scheme for removing federal employees, Congress should amend 5 U.S.C. § 3301 to clarify that suitability authority applies only to fitness for admission to the civil service, and it should amend 5 U.S.C. § 1104 to require agency involvement, written notice, and a reasoned decision before any OPM suitability action is taken against a tenured employee. Finally, President Donald Trump has invoked the national security exception in 5 U.S.C. § 7103(b) to strip collective bargaining rights from employees at agencies ranging from the State Department to the Food and Drug Administration. Congress could limit that exception to agencies within the Intelligence Community, and it should create a congressional approval mechanism for any broader exclusions.
Rebalancing Control Over Government Agencies and Offices
Congress has meaningful constitutional authority over federal agencies and offices, but the Trump presidency has largely swept that aside, unilaterally ordering large-scale reductions in force (RIFs) that eliminated entire agency offices and functions without congressional involvement or meaningful public notice. At the same time, OPM modified RIF regulations to make RIFs easier to manipulate for political purposes or to target specific employees. Expertise has quite literally walked out the door with no oversight or congressional involvement.
For much of modern American history, Congress passed a series of Reorganization Acts that gave the president the ability to reorganize government with congressional approval. The clear implication of the existence of these statutes is that Congress has authority over the structure of agencies and offices, and that without a statutory delegation to the president he simply lacks the power to make those changes. Congress could reassert its authority with a similar statute, for example by creating a new 5 U.S.C. § 3502b that requires agencies to publish a proposal — including continuity plans, skills assessments, and a certified justification — at least 90 days before any reduction affecting 50 or more employees, and a new § 3502c requiring congressional approval before any such reduction takes effect. It could also ensure retention of skill and experience during RIFs by amending 5 U.S.C. § 3502 to restore a mandatory descending order of retention priority (tenure, veterans’ preference, length of service, and then performance ratings) and establishing minimum standards for competitive area definitions that prevent artificially narrow areas designed to single out individual employees or functions.
Most of the recent significant changes to the civil service can be traced to the problem of too much power, centralized in a president who is acting in bad faith, and unchecked by Congress or the judiciary. The attacks on the personnel and structures of American bureaucracy have both been facilitated by this power overconcentration — and they have further entrenched this overconcentration of power by increasing direct political control over people and structures.
Particularly in light of the Supreme Court’s signals that it will permit extreme versions of presidential control while closely policing congressional attempts to empower or oversee the bureaucracy, Congress must act now to reassert the authority it unquestioningly has over the people and structures of American government.
