March, 2025
Washington — A federal district court has determined that President Trump's attempted firing of a member of the Federal Labor Relations Board, Susan Grundmann, was illegal. Judge Sparkle L. Sooknanan gives us a lesson in constitutional checks and balances along the way in her full-throated opinion in Grundmann v. Trump.
She bases much of her analysis on the precedent of Humphrey's Executor, but in so doing shreds the concept of an all-powerful executive that can dominate the other branches of government on a whim (or, she hints, in an overthrow).
Let's carry that thought further. The analysis applies even to checks and balances within the executive branch. Our constitutional system of separation of powers relies not only checks and balances between the three branches, but also within each branch itself. Our founders created two separate houses in the legislative branch to check each other; they created different levels of courts for the same purpose in the judicial branch. So why would they set up the executive branch with no internal checks, as the Trump administration argues?
They didn't. We have long-standing plural executive system that serves as an internal check on the president.
One of the checks in this system is a limitation on the president's power to remove. The power to remove is the power to destroy and must be limited, just as the power to tax is the power to destroy and must have boundaries, as Chief Justice John Marshall determined in McCullough.
Viewed in this context, it is a needless exercise to count the number of commissioners on the head of whichever plural executive pin is at issue in removal cases, as some have unwisely proposed. One, three, five; the power to remove is still the power to destroy. If anything, an individual agency director, like Hampton Dellinger at the Office of Special Counsel, could have had an especially compelling removal case, if only he had pursued it.
Susan Grundmann fought her illegal removal, Judge Sooknanan decided in her favor, the Constitution survives, and at least temporarily the country is the better for it.
