Firing federal employees for their politics violates the 1st Amendment

In Trump’s trademark Orwellian spin, his executive order weaponizing the DOJ was titled, “Ending the Weaponization of the Federal Government.”

After repeatedly claiming that he has “nothing to do with Project 2025,” Trump has signed warp speed executive orders to effectuate Project 2025.

A fever dream of Christo-nationalist Heritage Foundation and other rightwing extremists, Project 2025 seeks to advance Trump’s authoritarian vision for America. At full tilt, it would enact tenets of Christianity into law (controlling and punitive tenets of the Old Testament, not the woke stuff about loving your neighbor), accelerate climate change, further marginalize immigrants and the poor, and replace the federal workforce with Trump loyalists.

Project 2025’s unifying theme is the expansion of executive authority, a GOP goal nearly 40 years in the pipes. Through fiat of executive order, Trump is reaching for an unprecedented expansion of his own power, and the Republican majority on the Supreme Court may very well support his efforts.

Revenge terminations and impoundment

One of Trump’s first acts was to summarily fire Justice Department prosecutors who helped investigate Trump’s criminal attempts to overthrow the 2020 election. These prosecutors were not political hires from the Biden administration; they were career DOJ prosecutors who worked under presidents of both political parties. Their loyalty oath was to the Constitution, not the President.

Trump’s acting attorney general, James McHenry, made clear that the terminations were political. He wrote in his firing memo that, “Given your significant role in prosecuting the president, I do not believe that the leadership of the department can trust you to assist in implementing the president’s agenda faithfully.”

In Trump’s trademark Orwellian spin, his executive order weaponizing the DOJ was titled, “Ending the Weaponization of the Federal Government.” The order reads like a campaign ad, and accuses the Biden administration of “unprecedented, third-world weaponization of prosecutorial power,” calling investigations into Trump’s J6-related criminality—not Trump’s criminality itself—“misconduct.”

In addition to illegally firing career DOJ prosecutors, Trump is also trying to strong arm all 2.3 million federal employees into quitting, offering an alleged ‘buy out’ that would pay them to resign now and collect partial salaries through September. (Any federal employee reading this, beware, there’s a statutory limitation of $25,000 in effect for such federal employee ‘buy outs,’ far below the eight months of salary promised, suggesting Trump/Musk won’t honor the terms of their “offer.”)

Trump’s attempted purge comes on the heels of a gag order barring external communications from federal health employees at the National Institute of Health, and, in violation of the Impoundment Control Act of 1974, an order unilaterally grabbing the power of the purse from federal legislators by impounding funds they allocated for programs Trump doesn’t like.

Political firings of most federal employees are unconstitutional

The Trump administration has made clear that they terminated DOJ prosecutors and are trying to replace “deep state” employees due to their politics. Under current case law, however, public officials cannot condition their subordinates’ employment on their politics. The First Amendment prohibits an elected official from hiring those who support or affiliate with him and terminating employees who do not.

In 1976, in Elrod v. Burns, the Supreme Court held that a public employer inhibits an employee’s constitutionally protected belief and association where it terminates him for lack of political support. In 1980, the Supreme Court reaffirmed this rule in Branti v. Finkel, holding that public employers cannot condition employment on political affiliation because, “[i]f the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes.”

In light of these cases, courts evaluate 1^st A political retaliation claims under the “Elrod/Branti test,” which holds that the First Amendment protects public employees from termination based upon their political beliefs, affiliation, or non-affiliation unless their work “requires” political allegiance. To show that loyalty is substantively “required,” Trump would have to show that the government has a vital interest in employing only MAGA prosecutors. Trump’s personal desire to stay in office for life, an idea he has repeatedly floated, and his desire to use the presidency for profit and revenge are distinct from--and contrary to--the government’s vital interest.

Trump’s 1% victory was neither landslide nor mandate

The legal necessity of showing that political firings advance the government’s “vital interest” may be why Trump, Republicans and Fox News keep repeating that Trump won by a landslide, which has given him a “mandate.” Although the 1^st A doesn’t care how popular or hated Trump is, winning by one percent is laughably distinct from winning a mandate.

The math bears repeating: Trump won 77 million votes compared to Harris’ 75 million votes; 49% of the vote compared to 48%, a difference of 1%. More importantly, in terms of “mandate,” 90 million eligible voters didn’t vote at all, a number that exceeds the number of voters for either Trump or Harris.

In short, out of 245 million eligible US voters, nearly 70% did not vote for Trump. (75m Harris voters + 90m non-voters= 165 million, or 67% of 245 million eligible voters.) Only a math moron would continue to present this as a mandate, or argue that it shows the government’s ‘vital interests.’

Trump’s unconstitutional orders are meant to trigger judicial review

In addition to 1^st A protection afforded to all public employees, many federal statutes have specific built-in protections for agency workers, to stabilize the federal government and guard against the whims of politicization.

Acts creating the Federal Reserve System, Postal Service, Federal Trade Commission, National Transporta­tion Safety Board, Federal Energy Regulatory Commission, Consumer Financial Protection Bureau and other agencies allow termination only “for cause” identified as inefficiency, neglect of duty, and malfeasance in office.

Trump’s purge, in light of these statutory protections, is headed to the Supreme Court, where a Republican-appointed majority may strike down the protective statutes, based on its push in recent years to expand presidential authority. Whether it will also pervert nearly unanimous 1^st A jurisprudence on political terminations remains to be seen, but as Dobbs illustrated, conservative justices who support Project 2025are unconstrained by precedent.

Current conservative justices with an expansive view of executive power may be anxious to invalidate congressional restrictions on the White House. After allowing Trump to commit crimes with impunity, influencing voters and thus serving as Trump’s literal get out of jail card, these Machiavellian jurists don’t seem inclined to stop him from building an empire with their own religious values as its foundation.