Remember DOGE, the Elon Musk-led “government efficiency” project that spread chaos during President Donald Trump’s first few months back in office, fired tens of thousands of federal employees, and then vanished almost as abruptly as it began?
If you didn’t lose your job in one of Musk’s federal employee purges, or you aren’t one of the remaining federal civil servants who has to figure out how to do your job without many of your colleagues around, DOGE is probably little more than a memory. But the legacy of this era of arbitrary firings is still being litigated in federal court, and Justice Amy Coney Barrett just handed down some very bad news for nearly every civilian who works for the federal government.
On the surface, the Supreme Court’s decision in Margolin v. National Association of Immigration Judges, which was handed down on Tuesday, is a bit removed from Elon’s brief stint as Trump’s human resources manager. The case concerns whether federal immigration judges have a First Amendment right to give public speeches about immigration law. And the full Supreme Court decided to get rid of the case using a procedural argument that has few implications for federal employees.
But Justice Clarence Thomas, in an opinion joined by Barrett, wrote a separate opinion that would allow Trump to strip all federal civil servants of employment protections that many federal workers have enjoyed since the Chester A. Arthur administration.
While Thomas often takes extreme positions, Barrett is a relative moderate who is close to the center of the GOP-controlled Supreme Court. So, if Barrett is willing to endorse Thomas’s one neat trick to abolish civil service protections, that’s a strong sign that a majority of the Court agrees with her position.
Republican judges have long backed a legal theory known as the “unitary executive,” which holds that the president must have the power to fire high-ranking government officials who lead federal agencies. But the unitary executive has not historically been understood to eliminate employment protections for civil servants and other relatively low-ranking federal employees.
Justice Antonin Scalia’s dissent in Morrison v. Olson (1988), which is considered something akin to a holy text to proponents of the unitary executive, referred to the president’s power to “remove executive officers” — “officers” are relatively high-ranking government workers — but it did not say that the president must be able to fire every individual postal worker or Social Security clerk.
In Margolin, however, Thomas and Barrett suggest a way to collapse this distinction between agency leaders and ordinary civil servants. Trump can simply fire all of the government officials who adjudicate civil service disputes, and then civil servants will no longer have any enforceable rights.
Barrett, in other words, appears to believe that civil service protections only exist if the president wants them to exist. And if she says so, it’s likely the Court’s majority will, too.
Why civil service protections are essential to a modern government
If you watched the Netflix show Death by Lightning, which was about the brief presidency of James A. Garfield, or if you read the book the show was based on, you got a pretty good picture of what the president’s life was like before civil service reform.
As author Candice Millard wrote, when Garfield took office, the line of job seekers hoping to secure a federal job “began to form before he even sat down to breakfast.” By the time Garfield had finished his meal, “it snaked down the front walk, out the gate, and onto Pennsylvania Avenue.” As president, Garfield was expected to meet with each of these job-seekers and sort them into jobs — often based on whether they had a politically powerful patron.
This system was inefficient, as it forced the federal government to replace much of its workforce every time the White House changed hands. It diverted a simply enormous amount of the president’s attention into low-level hiring decisions. It fostered corruption, as often the only way to secure a federal job was to do favors for a senator, congressman, or some other powerful figure who could act as the job-seeker’s patron. And it made it very difficult for the government to hire highly specialized workers.
Why would someone go to the trouble of, say, getting an economics degree and becoming an expert on federal monetary policy if they knew that their job in the Treasury Department would evaporate the minute their party lost an election?
President Arthur signed the Pendleton Civil Service Reform Act in 1883, shortly after Garfield was assassinated by a disgruntled job-seeker. It was the first of several laws which ensure that the government did not have to replace every Republican postal worker or FBI agent with a Democrat if a Republican president lost an election.
Modern civil service laws also prohibit the federal government’s political leadership from coercing civil servants into political activity. They provide protections for whistleblowers. And they generally ensure that the government will be staffed by competent professionals who provide continuity across presidential administrations.
Federal civil service laws are primarily enforced by an agency known as the Merit Systems Protection Board (MSPB). Civil servants who believe their rights as federal employees have been violated typically must file their case in the MSPB, which gets the first crack at adjudicating these sorts of disputes.
Early in his second presidency, however, Trump took several actions that appeared designed to shut down the MSPB. He fired one of the Board’s members, depriving the MSPB of the quorum it needs to operate. He also fired Special Counsel of the United States Hampton Dellinger, an official who investigates alleged violations of civil service laws and brings cases to the MSPB, and attempted to replace Dellinger with a far-right podcaster.
Since then, Trump has taken some actions to reinvigorate the MSPB. The Board now has two members, which is the minimum it needs to operate. The podcaster withdrew from consideration to replace Dellinger after Politico reported that the podcaster said he has a “Nazi streak in me from time to time.” And Trump later assigned Dellinger’s duties to US Trade Representative Jamieson Greer.
So, while there are good reasons to believe that the MSPB is significantly diminished thanks to Trump’s actions, the Board currently has the minimum amount of personnel it needs to operate. But that was not true for the first several months of the second Trump administration, when it only had one member and thus was unable to adjudicate civil service disputes.
Barrett would let Trump abolish civil service protections by firing the MSPB’s members
The most interesting issue in the Margolin case concerns what should have happened if Trump had never appointed a second MSPB member, and thus had left the Board inoperative.
A federal appeals court, the United States Court of Appeals for the Fourth Circuit, decided Margolin in June 2025, during the period when the MSPB was defunct. That court suggested that, if the MSPB is nonfunctional, then the federal judiciary must step in and hear civil service disputes that otherwise would be heard by the MSPB — because, otherwise, federal civil service laws would cease to function.
On Tuesday, the full Supreme Court reversed the Fourth Circuit, although it did so on narrow grounds. The full Court’s opinion in Margolin states simply that the Fourth Circuit should not have opined on what happens when the MSPB is defunct, because the plaintiffs in Margolin did not raise this issue in their briefs.
But Thomas’s concurring opinion, which was joined by Barrett, rejects the Fourth Circuit’s argument outright. He argues that federal law says that civil servants must bring employment disputes in the MSPB, and if there is no MSPB, that means that they are simply out of luck.
Thus, as a practical matter, Trump could gain the power to fire any federal worker simply by firing one of the two current members of the MSPB. If that happened, the MSPB would cease to function, and federal civil servants would be cut off from any legal remedies, even if they were illegally fired for being Democrats.
Despite the significant implications of Barrett’s decision to join Thomas’s opinion, it isn’t particularly surprising. Last July, in McMahon v. New York (2025), the Court permitted the Trump administration to fire about half of the Department of Education’s workforce. Though the Court’s three Democrats dissented in McMahon, the Republican justices in the majority did not explain their decision; it was decided on the Court’s shadow docket, and the justices often do not explain their reasoning in those cases.
Nevertheless, McMahon was an early sign that the Court’s Republican majority does not support civil service protections, or believe that those laws should be enforced. Barrett’s decision to join Thomas’s Margolin opinion also suggests that she holds that view.
It appears, in other words, that this Supreme Court wants to tear down a consensus that was reached in 1883 — that the federal government should have a professional civil service that cannot be removed simply because the Republican Party controls the White House. Barrett’s move suggests Trump has plenty of leeway to keep firing people, even if federal law is supposed to stop him from doing so.
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