A lawyer for the Trump administration argued that the president has the authority to fire all women and people over 40 from federal positions if he so chooses.
“Could the president decide that he wasn’t going to appoint or allow to remain in office any female heads of agencies or any heads over 40 years old?” Judge Karen Henderson of the D.C. Circuit Court of Appeals asked Deputy Assistant Attorney General Eric McArthur, according to a transcript from the Daily Beast.
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“I think that that would be within the president’s constitutional authority under the removal power,” McArthur said. “There would be separate questions about whether that would violate other provisions of the Constitution.”
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The conversation took place during oral arguments regarding the president’s firing of Merit Systems Protection Board (MSPB) member Cathy Harris and National Labor Relations Board member Gwynne Wilcox, both of whom were nominated to their positions by former President Joe Biden. Wilcox was the first member of the National Labor Relations Board ever removed by a president and is also the first Black woman on the board.
Two district judges have already ruled separately that Trump illegally fired both Wilcox and Harris, but the administration has appealed.
In response to McArthur’s question on whether firing women and people over 40 at will would violate other parts of the Constitution, Judge Justin Walker brought up the 14th Amendment.
Judge Patricia Millett responded, “What about the over 40 part? All you need is a rational basis under the Constitution. Is ‘I desire to exercise my removal power’ a rational basis?”
“I think it might well be a rational basis,” McCarthur said.
He continued, “I don’t wanna get out over my skis here. Obviously, all of these are sensitive questions. When the department makes decisions about this, this is made to the very top — the acting solicitor general. And I do not wanna get out in front of the president or the acting solicitor general on any of these issues.”
The Trump administration has been firing federal workers in droves with no regard for the law. Harris, for example, can only be removed from her position for cause rather than at the president’s will. When she received an email that she had been terminated, no cause was given.
In his 35-page opinion earlier this month, U.S. District Judge Rudolph Contreras declared Trump’s termination of Harris “unlawful” and that the administration did “not dispute that Harris has been efficient and effective in her role at the MSPB.” Contreras ordered she be reinstated.
Judge Beryl A. Howell’s ruling regarding Wilcox was even more pointed.
“The President does not have the authority to terminate members of the National Labor Relations Board at will, and his attempt to fire plaintiff from her position on the Board was a blatant violation of the law.”
Howell also declared, “An American president is not a king.”
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