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Hundreds of employees waited in a line wrapped around the outside of the Health and Human Services headquarters in Washington on Tuesday morning, April 1, 2025. The department planned to lay off 10,000 workers.
One week ago, a federal appeals court in the District of Columbia granted the Trump administration a stay on emergency motions that restored the jobs of Gwynne Wilcox, a member of the National Labor Relations Board, and Cathy Harris, a member of the Merit Systems Protection Board. Both of these positions are in executive branch agencies, but they serve more of a quasi-judicial function. The NLRB rules on labor disputes, and the MSPB adjudicates grievances from federal workers.
There’s a major dispute over whether Donald Trump has the power as president to fire political appointees at these agencies without cause, which is at odds with the statutes and current Supreme Court precedent. The ruling suggested that those statutes are unconstitutional, and that presidents should have the power to fire executive branch agency officials at will, to make the executive branch accountable to the president.
But these firings had another impact. Removing Wilcox from NLRB and Harris from MSPB leaves both of those boards without a quorum. Under their own rules, that means they cannot hear any cases or resolve any disputes. In particular, the MSPB has been going over challenges to firings by federal employees, but not it cannot make any determinations in those cases, closing off at least one avenue for redress for those employees. In the case of the NLRB, any company can now challenge a union election or a complaint that it fired a worker illegally, and those cases simply get frozen in amber, which is beneficial to the company that doesn’t have to recognize a union or give restitution to an employee it fired.
In creating the NLRB and the MSPB, Congress intended them to function. If presidents can fire board members at will, they can disempower those boards by their own whim. And this is a uniquely Trumpian strategy.
Elizabeth Warren gave rise to the concept that “personnel is policy,” that who is in the room when big decisions are being made drives the decisions themselves. Donald Trump and his allies’ mantra is that no personnel is also policy. If you can eliminate the actual officials charged with carrying out a policy, then that policy fundamentally doesn’t exist, no matter what the law says or Congress dictates. Forget about preserving budgets or saving money; it’s a way to reshape the government without having to go through legislative hoops or force unpopular votes in the House or Senate. If you don’t want something to get done, just don’t hire anyone to do it.
If you can eliminate the actual officials charged with carrying out a policy, then that policy fundamentally doesn’t exist.
This may sound simplistic, but it’s a way of thinking about the Trump/Musk attack on government that could open up constitutional challenges. Article II requires that presidents “take Care that the Laws be faithfully executed.” If you can make a case that there is a deliberate attempt to actually not take that care, and not execute the law faithfully, that could form the basis of a challenge on virtually everything Trump is doing.
It isn’t hard to mount the evidence here. Conservatives do not want wealthy people to face audits for not paying their fair share of taxes; the auditing unit of the Internal Revenue Service has been slashed by 38 percent. They don’t want businesses to face an “undue burden” of regulatory compliance; due to staff cuts at the Office of Inspections and Investigations, the Food and Drug Administration will inspect fewer facilities and issue fewer recall notices. Cuts at the Department of Agriculture and the Mine Safety and Health Administration serve the same function. They don’t want unions; cutting staff at the Federal Mediation and Conciliation Service, as KJ Boyle wrote for the Prospect Wednesday, means fewer available mediators who go out and settle contract disputes. They don’t want testing revealing declines in educational achievement; removing the education researchers at the Department of Education means that nobody will be around to evaluate the tests.
Some of Trump’s policy aims are simply personal. Trump doesn’t like the CHIPS Act, mainly because his predecessor signed it. Because it’s a relatively new law, the CHIPS Program Office in the Commerce Department is staffed largely with probationary employees. So when probationary employees were unilaterally dismissed, a substantial chunk of the CHIPS office was let go. Another Biden-era program is the Loan Programs Office at the Department of Energy, which was infused with new funds to help bolster startups in clean energy, critical minerals, and other industries. By cutting head count at that office, existing contracts cannot be managed.
Robert F. Kennedy Jr. wants to completely reimagine the Department of Health and Human Services to become primarily a vehicle for fighting chronic disease. If you put that transformation up for a vote in Congress, it wouldn’t pass. But if you cut 10,000 jobs in all, and slash the agency that deals with substance abuse and mental health, and close the office looking at long COVID research, and fire every staffer who runs the Low-Income Home Energy Assistance Program, and get rid of every leader with institutional knowledge at the FDA, and fire the people who review drug applications (even though they are paid by fees and not out of the government’s budget), and lay off almost everyone who runs the program that gives treatment to World Trade Center 9/11 first responders, and dozens of other reductions in force, then you can begin to build the agency you want out of the wreckage, legality be damned.
There are certainly plenty of more normal ways Trump is changing the government, old standbys like hiring lobbyists to oversee the industries they once worked for. But just immobilizing government through staff cuts is somewhat new, at least at the level that Trump has employed it. Prosecutorial discretion is an established way to shift government priorities. But most of these agency depopulations make it impossible for the federal government to fulfill its statutory responsibilities, even though these agencies have been established and authorized and funded by Congress. When you make these offices nonfunctional, you’re not taking care that the laws are faithfully executed.
Sen. Warren has taken note of the no-personnel-is-policy trend. When she questioned Frank Bisignano in his confirmation hearing to run the Social Security Administration—another agency rocked by staff cuts—she asked if SSA or Elon Musk or Donald Trump could cut the Social Security benefits of an eligible beneficiary without congressional approval. Bisignano said no. Warren then conjured up a scenario where that beneficiary calls to apply for Social Security, but is told he has to sign up online or in person.
“He can’t drive, has trouble with the website, so he waits until his niece can get a day off to take him to the local Social Security office,” Warren said. That office was closed by budget cuts, she continued, so they have to drive two hours to the nearest available one. But there are only two people staffing a 50-person line, so he has to come another day. “Let’s assume it takes our fellow three months to straighten this out, and he misses a total of $5,000 in benefit checks, which by law he will never get back … Is that a benefit cut?”
Bisignano stammered at this and said it sounded like a horrible situation. But you see Warren’s point. The understaffing is a way to cut this hypothetical individual’s Social Security benefits without having to get Congress to pass a law. Staff cuts translate into benefit cuts. And the lack of personnel becomes policy.
Right now, a lot of these staff reductions are being adjudicated in court, in part because they can’t be adjudicated through the federal employee grievance system, because staff cuts have muted that agency. (Funny how that works.) But, except for Warren’s hypothetical, I haven’t seen this addressed as a means for policy, as a way to transform the federal government without the input of the body that makes the laws.
Trump and Musk will say this is just about reducing waste and fraud and making government more efficient. That’s bullshit; government spending is at precisely the same level now as before. This is about centralizing all power in one branch of government that is failing to uphold its constitutional requirements. Someone might want to say that in a court of law.
