Can Trump legally fire federal employees if the government shuts down this week?
As the threat of a government shutdown looms, so also does the prospect of “mass firings” at the federal level.
As the threat of a government shutdown looms, so does the prospect of “mass firings” at the federal level.
President Donald Trump said over the weekend that if the government shuts down, the administration may take the step of eliminating federal workers. “We are going to cut a lot of the people that … we’re able to cut on a permanent basis,” he told NBC.
During a government shutdown, non-essential operations across the federal government halt as workers are temporarily furloughed or put on leave.
Since January 2019, under the Government Employee Fair Treatment Act of 2019, all furloughed federal employees are guaranteed back pay once funding is restored. Previously, back pay was not automatic — but Congress usually passed legislation afterward to compensate workers.
But, if the recent past is any indication, those workers always return to their jobs, says Christopher Bosso, professor of public policy and political science at Northeastern.
“In other government shutdowns due to budgetary face-offs between Congress and the President — Republicans v. [Bill] Clinton, Republicans v. [Barack] Obama, Republicans v. Trump — non-essential federal employees are furloughed but not fired,” he says.
Bosso says that most experts tend to agree: the president doesn’t have legal authority to fire federal workers unless Congress acts to cut off funding to a specific program or agency, “leaving the workers with no basis for employment.”
Case in point: the U.S. House and Senate recently passed a rare “rescission” package that could claw back up to $1.1 billion in federal funds already allocated to public media. The cuts threaten to eliminate funding for the Corporation for Public Broadcasting (CPB), an independent entity created by Congress in the 1960s to support local radio and TV stations nationwide.
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After Trump signed the rescission effort into law, the CPB announced that it was shutting down, and that the majority of its employees would be let go by Sept. 30.
According to Bosso, there is a good chance Trump follows through on his threats.
“I have no doubt that Trump — or, to be precise, Office of Management and Budget Director Russell Vought — will use the shutdown as a pretext for mass firings,” Bosso says.
“That should set up a fight with Congress over its power of the purse as laid out in Article of the Constitution, but the Republicans who control Congress are not inclined to oppose Trump,” he says.
Dan Urman, director of the law and public policy minor at Northeastern University, who teaches courses on the Supreme Court, says the Supreme Court may side with executive power. And Bosso agrees.
“So far, President Trump has a pretty good record at winning in court when he pushes the legal boundaries of presidential power,” Urman notes.
The sticking point in this year’s shutdown fight centers around the expiring Affordable Care Act (ACA) subsidies, which would lead to premium increases of up to 75% for individuals enrolled in the ACA marketplace.
Democrats have made the COVID-era tax credits a key demand of their ongoing negotiations with GOP leaders, who have insisted that the subsidies not be included in any stopgap measure to keep the government in operation through November.
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