Harvard law lecturer Ian Samuel — a former clerk for Supreme Court Justice Antonin Scalia — has written an extensive primer for civil servants who are worried about getting fired for defying illegal orders from their superiors, and if you follow his advice and get fired anyway, he’s offering “to represent, pro bono, any government official who refuses to execute a Trump order on the grounds that the order is illegal” (he notes that there are many other “lawyers, paralegals, law students, legal secretaries, and even (my favorite) a bartender in Cleveland” who’ve made the same offer).
But say you do refuse to go along with a likely illegal order. What happens then? After all, your superiors—who, if you go high enough up the chain, will eventually be political appointees, subject to direct presidential control—presumably won’t agree that President Trump’s orders violate the law. If you’re fired or suspended for refusing to execute an unlawful order, the Merit Systems Protection Board steps in. The MSPB exists to protect and enforce the civil-service requirements, including the protection against being required to execute illegal or unconstitutional orders. To do that, it’s empowered to hear appeals regarding civil servants’ terminations, reductions in pay, or suspensions. The board can conduct hearings, receive evidence, and ultimately decide whether an employee can lawfully be disciplined.Of course, the MSPB is itself an executive agency, and therefore subject to Presidential control. The three-member board is currently down to just one person—an Obama appointee named Mark Robbins. President Trump has informed Robbins that he will serve as vice chairman—presumably under a new chair nominated by Trump. It’s conceivable, in other words, that the president could stack the MSPB with appointees who regarded his orders as perfectly legal and who would therefore not be inclined to shield the civil servants who were refusing to carry them out.
Even then, however, our system has an answer. Decisions of the MSPB are themselves reviewable in federal court—specifically, in the United States Court of Appeals for the Federal Circuit and (ultimately) the Supreme Court. Those federal courts would decide for themselves whether the Trump administration’s behavior was (in administrative-law parlance) “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” In other words, the legal conscience of a career civil servant might well provide the eventual vehicle for the Supreme Court to consider the legality of the Trump administration’s most controversial policies.
The Nervous Civil Servant’s Guide to Defying an Illegal Order
[Ian Samuel/Slate]
(Image: Captain America’s shield, Ponfield, CC-BY-SA)
