When President Trump dashed off an executive order banning nationals of several predominantly Muslim countries from entering the United States, he encountered pushback from a surprising source — the federal government itself. At the Department of Justice, Acting Attorney General Sally Yates announced that the order appeared unlawful and directed DOJ lawyers not to defend it in court. Around the same time, more than 1,000 State Department employees signed a “dissent memo” detailing strenuous objections to the ban.
Although both incidents involved rebukes to Trump by federal employees ostensibly under his command, he responded to them in remarkably different ways. He swiftly fired Yates and replaced her with someone who was willing to defend the order. But the many dissenting State Department employees were not so swiftly dispatched. Their only punishment so far has been a press conference tongue-lashing. Sean Spicer, Trump’s press secretary, angrily told the “career bureaucrats” who signed the memo that they can “either get with the program or they can go.”
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As Spicer’s boss might say: “Wrong.” Federal civil servants have a third option. Just say no. That is, stay, but refuse to follow illegal orders. That’s because rank-and-file federal government employees have important job protections that Yates lacked. While the president can fire high-level political officials at will, federal law prohibits removing civil servants “for refusing to obey an order that would require the individual to violate a law.” The “law” includes federal statutes, as an important federal appeals court has held. More importantly, the “law” includes the Constitution — the “supreme law of the land,” which all federal civil servants promise to support and defend “against all enemies, foreign and domestic” when they take their oaths of office.
That’s not to say there aren’t risks. Rank-and-file civil servants have bosses, who may themselves conclude that Trump’s orders are perfectly legal. Such a boss might go ahead and fire an employee refusing to follow an illegal order. But the story wouldn’t end there. The dispute would then go before the Merit Systems Protection Board, the agency in charge of enforcing federal civil service requirements. The MSPB could conclude that the order was illegal and refuse to permit the firing.
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This is, to be clear, no sure thing. The MSPB is an executive agency, which means Trump has plenty of influence over it. While currently run by an Obama administration holdover, Trump will presumably appoint his own MSPB members. And his appointees, one could expect, may be less likely to conclude that his orders are unlawful, and therefore less likely to protect civil servants who refuse to carry out the president’s orders.
Even then, however, civil servants would not be entirely out of luck. Decisions of the MSPB are reviewable in federal court. In other words, a federal court could find the president’s order unlawful, and that a civil servant can’t be disciplined for refusing to carry it out, even if the MSPB disagreed. While there’s no guarantee a federal court would agree with the employee, federal judges — unlike the MSPB members — are part of an independent branch of government and can’t be fired by the President. They’d be anything but a rubber stamp. In 1997, for example, a Foreign Service officer named Robert Olsen was fired for refusing to discriminate on the basis of national origin. But when he sued — arguing that such discrimination was illegal — a federal court agreed with him, noting that federal employees should not follow illegal orders “blindly and thoughtlessly.”
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All of this is still a big ask. It’s hard to stand up to your boss and put your livelihood on the line. It’s harder still if that requires stating your view that the president of the United States is breaking the law. That’s why we’ve offered to represent, pro bono, any government official who refuses to carry out an illegal Trump order. As former federal law clerks, we’ve each taken the oath to uphold the Constitution and laws of the United States. That means something, which is why we’re putting our money where our mouths are. If you’re a civil servant, and you’re being asked to carry out an unlawful order, talk to us. We’re here to help.
As it turns out, we aren’t alone. Many Americans, including other lawyers with experience litigating before the MSPB, have offered to stand with us. Together, we hope we can preserve one of the best parts of the American system of government — that it is a system ruled by law, not by men.
Daniel Epps is an associate professor at Washington University School of Law. Leah Litman is an assistant professor at University of California, Irvine School of Law. Ian Samuel is a Climenko fellow and lecturer at Harvard Law School.