Whether the president can fire any given employee depends on two things.
First, the nature of the position that they're in, and second, your views of the president's
constitutional powers.
The president's authority to fire federal employees is rooted in the Appointments Clause,
Article II, Section II, Clause II of the Constitution, which actually only states the president's
affirmative authority to appoint officers of the United States.
The Supreme Court has long read into that authority the ability to remove those officials
as well.
Across the whole federal government, you can divide federal employees into basically two
buckets.
At the top of the food chain, you have officers of the United States.
And then, you've got the rest of the federal government, who are general employees, most
of them, although not all of them, subject to the protections of the Civil Service Reform
Act.
At the officer of the United States level, many positions have removal restrictions of
some kind that have been enacted by Congress, and then when you get below the officer of
the United States level, the vast majority of federal employees fall within the protections
of the Civil Service Reform Act.
Those statutory restrictions really form the set of obstacles that prevent the president
from f- firing at will those employees that he thinks are not performing their jobs properly.
In addition to the statutory restrictions that exist on the president's authority to
fire, it's interesting that, when you look at the Supreme Court's decisions from the
1970s and mid-1980s that created, uh, or recognized a property interest of em- government employees
in their jobs, they did so in the context of saying that the rights that you have given
someone under a contract or under a statute are the very thing that gives rise to the constitutional
protections.
So, going back to the early 1970s, a couple of cases went up to the Supreme Court, one
of which was the Board of Regents v. Roth, and in that case, Roth had a contract to teach
that wasn't renewed, and he alleged that he had not been renewed for First Amendment reasons
that the administration hadn't liked what he was saying.
And in that case, the Supreme Court said, "You had no property interest in that contract.
You had a one-year contract.
It didn't guarantee that you would be renewed.
No process was required for them not to renew it."
That same term, in Perry v. Sindermann, another professor, also not tenured but who had been
long within the Texas professorial system for several years, the Supreme Court held that
that, alone, even though there was no contractual tenure right at issue, having been a longer-term
employee somehow created a property interest for him in his job.
And that required the government to give him some form of due process prior to choosing
not to renew his contract.
Sindermann's contract was a one-year contract that they simply had elected not to renew.
So, that early 1970s case provided the foundational due process rights that the Supreme Court
created with respect to government possessions, and that really culminated in a case, Cleveland
Board of Education v. Loudermill in the mid-1980s.
Now, Loudermill was a security guard who had failed to report to his employer when he applied
for his security guard job, uh, that had actually lied on his application to get his job.
He had committed grand larceny and hadn't reported it on his application, and they fired him
after they discovered that he had lied.
Now, he actually had tenure protections under the Ohio Civil Service system, and under those
protections, he was entitled to a post-termination hearing, which they gave him.
But he said, "That's not enough.
I deserved a pre-termination hearing before I got fired, and not just post-termination
review."
And the Supreme Court agreed with him and said that, "Because the government had given
you a tenured position where you had protections with respect to your job, that was sufficient
to create a property interest in your job, and once you have that property interest,
the post-termination hearing wasn't enough.They're also somehow required to give you a pre-termination
hearing as well."
Once you have any kind of statutory rights, even if you have merely a long tenure that
has given you the expectation that your contract is going to be renewed, even though you have
no contractual right to do it, those kinds of facts may give you, according to the Supreme
Court, a property interest in your job that requires some form of due process before you can be
fired.