"Could the President decide that he wasn't going to appoint or allow to remain in office any heads of agencies over 40 years old?"
"I think that that would be within the President’s constitutional authority under the removal power."
That exchange took place earlier this week between Judge Karen Henderson, a Reagan appointee to the D.C. Circuit Court of Appeals, and Deputy Assistant Attorney General Eric McArthur during proceedings over the termination of board members from two independent federal agencies, the National Labor Relations Board and the Merit Systems Protection Board.
The claim that Trump has the constitutional authority to fire employees based on their age is appalling on its own. The Age Discrimination in Employment Act, which protects employees 40 and older, has plenty to say about that claim.
Even more disturbing, however, are the broader implications of the government's argument. Replace "over 40" with "Black," "female," "gay," "lesbian," "transgender," "Muslim," "Jewish," "disabled," or any other protected class. By McArthur's reasoning, those terminations would be just as lawful under Trump's "constitutional removal power." The government is arguing that Trump has the constitutional authority to remake the federal workforce into one only comprised of while, male, cisgender, under 40, non-disabled, Christians.
That argument isn't just legally dubious—it's a direct attack on the principles of equal opportunity and non-discrimination that underpin our society and our democracy. If accepted, it would open the door to a federal workforce shaped entirely by a President's personal biases, rather than merit, experience, or the law. The Constitution does not grant any President unchecked power to purge employees based on protected characteristics. This isn't about removal authority. It's about whether the rule of law still applies, even when the President finds it inconvenient to his agenda.
Here's what I read this week that you should read, too.
My Innie Knows: The Employment Law of "Severance" — via Dan Schwartz's Connecticut Employment Law Blog