Executive Summary 

• In February, the White House released a fact sheet outlining the broad actions the Trump Administration will take to “significantly reduce the size of the federal government,” in part by “shrink[ing] the size of the federal workforce” which, it argues, is composed of “too many” employees. 
• As the Trump Administration moves forward with this policy under the guidance of its own Department of Government Efficiency, critics have raised questions as to the legality of this decision, particularly over whether the president has such authority. 
• This insight provides a brief explanation of what the president’s powers in this endeavor are, details some significant points of contention that may require remediation by Congress and the courts, and explores the potential personnel impacts of these federal layoffs. 

Introduction 

On February 11, the White House released a fact sheet outlining the broad actions the Trump Administration will take to “significantly reduce the size of the federal government,” in part by “shrink[ing] the size of the federal workforce” which, it argues, is composed of “too many” employees.  

Already the Trump Administration has moved forward in this endeavor with some speed – under the guidance of its own Department of Government Efficiency (DOGE) – to create significant attrition in those agencies targeted for “waste, bloat, and insularity.” For example, just three days after the release of its fact sheet, the Trump Administration had fired 2,300 employees from the Department of Interior and 1,000 employees from the Department of Veterans Affairs. The Department of Health and Human Services is expected to fire roughly 5,200 employees. Of note, all of the affected employees were on probationary status, meaning they had served fewer than two years within their respective agencies or were recently promoted. 

The Trump Administration’s endeavor to create attrition among the federal workforce has not been without controversy, and its success to this point is owed not so much to the courts’ and Congress’ assent, but rather by the rapidity with which it has undertaken these actions. In other words, those bodies that would oversee the legality of the administration’s actions just haven’t had time to render judgment. 

Of course, eventually, they will. Already, several federal employee unions have filed suit against the Trump Administration, arguing its actions are illegal and violate separation of powers principles, as well as the Administrative Procedure Act, citing in particular the DOGE-inspired buyout for federal employees. And while in at least one case a federal judge ruled that such a plan could go ahead – albeit with a narrow ruling, which found that the American Federation of Government Employees lacked standing – courts will be more heavily tasked in the future with issuing more substantive rulings on the heart of the matter in question. So far, a federal judge in San Francisco issued a temporary restraining order to restrict the Office of Personnel Management (OPM) from ordering agencies to cut staff, holding that OPM had no authority to do so. 

This insight provides a brief explanation of what the president’s powers in this endeavor are, details some significant points of contention that may require remediation by Congress and the courts, and explores the potential personnel impacts of these federal layoffs. 

When May the Executive Terminate Federal Employees – and Is It a Good Idea? 

While the Trump Administration has claimed at various points that its efforts to create attrition among the federal workforce are intended to reduce waste and fraud, it seems to have retreated from such language. Perhaps this is in response to litigation from the unions, which argue that such considerations are not commensurate with the congressionally specified criteria under which an administration may properly consider the continued employment of federal workers. 

Under what criteria, then, may the administration terminate agency workers? Congress has, as the National Treasury Employees Union notes in its lawsuit, a “reduction in force” (RIF) protocol, which the agencies must abide. The RIF details those circumstances under which the agencies may lay off federal employees in the event of budget cuts, reorganizations, or changes in agency policy. Under this protocol, an agency must consider four factors when determining retention: 

1. Tenure, in which the type of appointment is considered. 
2. Veterans’ Preference, in which veterans are granted priority. 
3. Length of Service, in which employees with greater years of service are granted priority; and 
4. Performance Ratings, in which employee aptitude is prioritized. 

These factors are enumerated in Title 5 of the Code of Federal Regulations, Part 351. It is important to note that OPM details the RIF’s factors as they may apply in cases of “reorganization, lack of work, shortage of funds, insufficient personnel ceiling, or the exercise of certain reemployment or restoration rights.”  

It is the enumerated case of “reorganization” in which the Trump Administration may find the greatest acceptance if – and, really, when – it must defend its position in court. It may plausibly claim that its efforts to broadly shrink the size of the federal government constitute at least some form of “reorganization.” And such an argument’s veracity will depend wholly on whether a court accepts that a “reorganization” can resemble what is by many accounts a gutting of the administrative state. So far, a federal judge in San Francisco issued a temporary restraining order to restrict OPM from ordering agencies to cut staff, holding that OPM had no authority to do so. And in response to that, OPM released a memo on March 4 holding that it “is not directing agencies to take any specific performance-based actions regarding probationary employees. Agencies have ultimate decision-making authority over, and responsibility for, such personnel actions.” 

Notice as well that the Trump Administration may not be following the RIF’s factors in its effort to induce attrition. In targeting probationary employees, the Trump Administration seems to be selecting those workers who would be deemed nonessential in the case of a lack of funding, and does not seem to be selecting for, among other things, employee performance. That said, the Trump Administration has often cited employee performance as a pretext for its layoffs. It has sent agency staff several urgent requests demanding response that appear to be attempts to establish evidence for performance issues. Whether the Trump Administration’s claims of employee performance issues as cause for these layoffs is legitimate is another point of contention. 

Another factor worth consideration is the scope of the Trump Administration’s actions, although as OPM guidance notes: 

Employees in a competitive area compete for retention under the RIF regulations only with other employees in the same competitive area. Employees do not compete for retention with employees of the agency who are in a different competitive area. 

In other words, plaintiffs may persuasively argue in court that these criteria forbid the selection of all probationary workers across all agencies for layoffs, and that instead the RIF provides only for the region-by-region or division-by-division selection of employees for termination. 

Finally, as OPM guidance notes: 

An agency must give each competing employee at least 60 days specific written notice before the effective date of the RIF action. The 60-day minimum notice period applies to all RIF actions, including separation, demotion, and furlough. The 60-day notice period is a statutory requirement. An agency, as a matter of its own policy, may provide for a longer minimum RIF notice period. 

Employees may also, also the guidance notes, “appeal the RIF action to the Merit Systems Protection Board under the provisions of the Board’s regulations, or to grieve the action under a negotiated grievance procedure.”  

In the case of those fired probationary workers, the time between President Trump’s entering office and the February 14 agency layoffs was only 25 days. 

The mass layoffs of probationary employees may have implications for the organization of the future workforce, as well. At the time of this publication, agencies had fired more than 25,000, or about 10 percent, of the over 200,000 probationary employees. While these workforce reductions may save taxpayer dollars, such firings could harm the recruiting, retaining, and developing of federal workforce talent. 

These workers are either new to the federal workforce or are longer-term career employees who were recently promoted or changed agencies. While probationary employees may be easiest for the Trump Administration to fire due to their exemption from most civil service protections, broadly targeting these workers necessarily entails cutting those apparently worthy of promotion and, if they were recently hired, deemed important to agency function. It is thus likely that in firing the most vulnerable federal workers, the Trump Administration is cutting some of the most essential. Indeed, federal employees with less than one year of employment have the highest employee engagement and satisfaction scores. Finally, these firings can create a disincentive for agencies to develop and invest in new talent out of concern these workers may be cut.  

Unitary Executive Theory 

One argument the Trump Administration could make is that its actions have significant constitutional basis under a doctrine called the Unitary Executive Theory (UET). 

This legal theory holds that “the President of the United States possesses sole authority over the Executive Branch.” As one columnist writing in defense of the theory put it, “the entire executive, from the FBI to the White House cook, are agents of the president. Bureaucrats and appointees exist to carry out, on the president’s behalf, the laws passed by Congress” [emphasis his]. 

In other words, UET holds that while Congress has the power to write laws under Article I, the president has under Article II the discretion to enforce those laws with the power of his agencies as he sees fit, and that most if not all agency actions – except those specifically prescribed by Congress – are dictated solely by the president. Under this framework, the president acts as a chief executive officer of the executive branch, with all significant agency action left to his sole discretion. Perhaps the chief feature of this theory is that, in these relevant instances, it leaves no vacuum for the exercise of any power outside the legislative branch and the executive branch; all governance is conducted with the authority of at least one of these. 

The constitutional question UET raises is profound, and it likely demands serious legal consideration. It may be that, as a matter of law, the president is forbidden from micromanaging the personnel decisions of the agencies. But of great importance is whether Congress has the constitutional right to annex powers that may properly belong to the president. If indeed the president has the constitutional right to command the agencies at his total discretion, all congressional law that circumscribes this power can be considered unconstitutional. In this, many of the legislative branch’s powers, and even those long exercised, would necessarily bend to those of the executive branch. 

Whether UET is a recent invention or originates in the Founders’ own thinking – in which case it may be found more compelling to the courts – will in part decide whether it prevails. If the courts do bless it, the Trump Administration – and indeed all future administrations – would enjoy greater authority to reshape the agencies according to its preferred vision.  

If the courts do not agree, however, the Trump Administration will be left with the option of convincing Congress of the wisdom in enshrining this theory – in part or in whole – in law. Such a path would, at the least, mollify critics of the actions the administration has taken to date.