Politicization in the shadow of the shadow docket

On the eve of the Slaughter decision, a peek into how Trump officials undermine civil service safeguards

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.

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?

New reporting by the New York Times reveals that administration officials leaned on an acting Republican head of the Merit Systems System Board, Henry Kerner, when he was being considered for a permanent leadership position. They told him that they expected him to follow Office of Legal Counsel’s opinions on unitary executive theory.

The Times describes how:

the Trump administration leveled a concerted pressure campaign on the board in public and private, according to people with knowledge of the process. The private push — little different from calling a federal judge and telling him how to rule — was led by a White House aide who for years has been intently focused on making it easier to quickly fire federal workers.

The White House aide meeting with the head of the MSPB was James Sherk who has said that “Every federal employee should serve at the pleasure of the president.” Sherk is the author of the Schedule F (now Schedule Policy/Career) memo that asserts a legal basis for firing career civil servants without cause, again relying on unitary executive theory.

Here is Sherk at the signing of the Schedule Policy/Career Executive Order (about minute 15 of this video). After Sherk explained the EO to Trump that he was about to sign (no need for the President to read anything too closely when everyone is a loyalist), Trump offered him the highest compliment, saying he was “central casting...perfectly cast.”

A trademark of Trump’s second term has been to put in place loyalists in key positions to interpret the law in whatever fashion he demands. Then, when Trump violates the law, he can argue that executive branch lawyers support him, requiring others to take the case to court. And time and again, the Supreme Court has supported the novel legal formalisms that Trump has come up with, often with shadow docket decisions that the Roberts Court has transformed into permission slips for Trump.

Sherk’s engagement with the MSPB is a rare glimpse into how the machinery of politicization works at lower levels within the executive branch, in the shadow of the shadow docket. Kerner, the MSPB appointee, was not explicitly told how to rule, but was told that he needed to follow the company line on unitary executive theory. And he was told this in a meeting with a presidential advisor who has explicitly identified MSPB as a barrier to making it easier to fire federal employees.

This is not a routine loyalty test. The whole point of the MSPB, created in the aftermath of Nixonian abuses, is that it is independent of a President who might abuse his powers. And unitary executive theory not only undermines that independence in terms of the core task of the Board — evaluating employees claims fairly — it also undermines the existence of the MSPB, since unitary executive theory does not tolerate the existence of independent agencies. In short, the MSPB leader was selected on their willingness to argue against the purpose of their agency.

Here is a tangible example of why this matters. Maureen Comey, the daughter of James Comey, was a respected Department of Justice prosecutor who was fired by Trump. No-one has made a credible argument that this was anything other than retribution against the Comey family. She sued, and said she could not go through the MSPB because of its compromised status, including on unitary executive constitutional questions. The Office of Legal Counsel disagreed, saying that MSPB could make such decisions, even though the natural endpoint of this logic was that the MSPB should hold that was unable to operate independently of the President, and even as the clear intent of the government’s intervention was to weaken Ms. Comey’s opportunity to have her case heard in a nominally nonpartisan court.

And it worked. The MSPB soon followed the direction they were given by Sherk and the Office of Legal Counsel, contradicting decades of precedent, to say they were entitled to weigh in on constitutional issues on unitary executive theory. The outcome, of course, is a forgone conclusion, legal niceties aside. Any decision of the MSPB issues is now the rotten fruit of a poisoned tree.

Trump had already undermined the independence of these agencies. He fired a Democratic nominee on the MSPB, Cathy Harris, converting the board from a bipartisan entity intended by Congress to one dominated by his appointees.

And here, it is important here to recognize the role the Supreme Court played in Trump’s politicization agenda. The fired MSPB member sued, and a District Court sided with her and the original structure of the MSPB as outlined in law. However, in May of 2025, the Supreme Court blocked her reinstatement while litigation is pending, saying.

The stay also reflects our judgment that the Government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.

In other words, the Court regarded the interests of Trump politicization as so important to protect that they would upend the previous Supreme Court precedent, the status quo and the explicit intent of Congress even before deciding on the merits of the case.

Justice Kagan noted that the Trump administration was not just injuring individual employees like Harris, but Congressional designs to serve the public interest.

…the interest at stake is in maintaining Congress’s idea of independent agencies: bodies of specialists balanced along partisan lines, which will make sound judgments precisely because not fully controlled by the White House.

For people working in the MSPB, the message was clear: SCOTUS was not going to protect them. Crucially, the meeting with the MSPB head occurred in November, months after SCOTUS used the shadow docket to allow his colleague’s firing. The Supreme Court gave him zero reason to take a principled stand in the hope they would later support him. This is how executive power aggrandizement operates in the shadow of the shadow docket.

If the people whose statutory role is to protect against partisan firings were not themselves exempt from partisan firings, what hope would regular federal employees have?

The same decision that blocked the reinstatement of the Democratic MSPB member was the clearest sign that the Supreme Court planned to eliminate the independence of independent agencies (except for the Federal Reserve, for…uh…reasons). An even clearer sign came later that year, when SCOTUS also allowed the administration to fire Rebecca Kelly Slaughter, the head of the Federal Trade Commission, the original agency involved in the Humphrey’s Executor decision that confirmed the independence of such agencies.

We are now waiting for the final decision in the Slaughter case. There is little doubt on the outcome, just the extent of its implications. The decision will reverse the clear intent of Congress and Supreme Court precedent that has been in place for 90 years, and it will do so at the behest of a would-be authoritarian. It will give the Supreme Court the best chance to implement an ahistorical, anti-democratic and impractical governing framework cooked up by Federalist Society lawyers and Republican White House appointees.

The Slaughter decision will most likely weaken the MSPB and gut the Civil Service Reform Act and its merit principles. In doing so, the Court will back the White House officials who fired the Democratic official on the board, and who told Republican members to start embracing unitary executive theory. The Courts will back Trump, not Congress or its laws, and certainly not federal employees.

Nixon era abuses of public personnel occurred largely in secret. Trump era abuses are occurring in public. What explains the difference?

The Nixon administration knew that the court of popular opinion and the actual courts were against them. The second Trump administration does not care much about public opinion, and believes the Supreme Court will give them much or all they seek. Both the abuses of power occurring with the executive branch — such as the firing of Maureen Comey — or the effort to provide a constitutional justification for such abuses all occur because Trump administration actors assume Supreme Court support.

The broader lesson is simple enough. Trump’s two-step model of government politicization (fire people, and build a justifying legal infrastructure based on unitary executive theory) is wholly dependent on the Supreme Court. Congress will not support it. SCOTUS could stop it, but won’t because the majority of its members agree with it.

It is, in the end, not just Trump’s politicization of the federal government; the Republican majority on the Supreme Court are co-owners of this project. John Roberts, who frets and worries about the court as institution, is a willing co-author on the attack on other institutions. The Court’s complicity in the assault on public institutions gives them no justification to demand the protection of their own.