The Founding Fathers worried the judicial branch was “beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two.” Yet it seems that in these days of lawfare, the judiciary is quite capable of effectively attacking the other branches of government, particularly the branch headed by President Donald Trump.
A recent lawsuit, filed by the AFL-CIO against the Trump administration, offers the latest example of judicial interference with the executive branch. The lawsuit attacked several federal directives that attempted to reduce the federal workforce and reorganize many executive agencies.
Trump Executive Order is Constitutional
These actions began with Executive Order 14210, issued on February 11, to effect “‘large-scale reductions in force’ (RIFs) and reorganizations.” Trump’s order is completely unsurprising and legitimate.
Republicans have been worried for decades about the size of the federal government. Couple that concern with President Trump’s awareness that partisan actors, working as federal employees, undermine his agenda, and it makes perfect sense that the president would take swift action to reorganize and reduce the size of the executive branch.
In response to President Trump’s order, the Office of Management and Budget (OMB) and the Office of Personnel Management (OPM) sent memos to executive agencies, beginning a process of reorganizing and reducing the federal workforce. The memos called for changes to the agencies and the elimination of thousands of executive-branch jobs.
The more than 50-page district court opinion, ruling against President Trump and his agencies last month, claimed that the executive branch had overstepped its authority, taking actions that should be reserved to Congress and thus violating the separation of powers. The court issued a shockingly broad order that all executive agency reorganizations and reductions in force must stop unless Congress explicitly approves the actions.
Trump is Governing His Own Branch
The Trump administration’s solicitor general filed an emergency petition to stay the order of the court on June 2, 2025. The petition makes a strong case that these reductions in force are lawful and within the power of the president:
In this case, the district court entered a nationwide injunction that bars nearly the entire Executive Branch — 19 agencies, including 11 Cabinet departments — from implementing an Executive Order that directs agencies to prepare plans to execute lawful reductions in the size of the federal workforce. That injunction rests on the indefensible premise that the President needs explicit statutory authorization from Congress to exercise his core Article II authority to superintend the internal personnel decisions of the Executive Branch. But “[u]nder our Constitution, the ‘executive Power’—all of it—is ‘vested in a President,’ who must ‘take Care that the Laws be 2 faithfully executed.’” Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 203 (2020) (quoting U.S. Const. Art. II, § 1, Cl. 1; id. § 3). Controlling the personnel of federal agencies lies at the heartland of this authority. The Constitution does not erect a presumption against presidential control of agency staffing, and the President does not need special permission from Congress to exercise core Article II powers. See Trump v. United States, 603 U.S. 593, 607-609 (2024).
The Trump administration is absolutely right. Of course, conservatives value the separation of powers. But the claim that separation of powers prevents the president from reducing or reorganizing workers within the executive branch of government is false.
President Trump is trying to manage his own branch of government. There is no argument for the separation of powers between the executive branch of government and . . . the executive branch of government. This needs to be repeated over and over again to overcome the drumbeat of nonsensical claims that the president is overstepping his authority.
Article II of the Constitution is quite clear: “The executive Power shall be vested in a President of the United States of America.” The president is, for purposes of constitutional authority, the executive branch of government. Of course he needs a staff. This staff may consist of dozens of subordinates or tens of thousands of them. But they are all subordinates who serve at the pleasure of the president.
Yes, Congress provides funding for these executive positions, but that funding does not mean Congress controls the number or persona. If Congress must rule on reducing the number of executive branch employees or reorganizing executive agencies, that would be a violation of the separation of powers: The president would lose control of his own branch of government. This is constitutionally and practically impermissible.
Congress Has Already Approved Executive Action
Even if reduction in force or reorganization of executive agencies requires congressional approval, Congress has already granted such approval. The U.S. Code, the code of federal statutes enacted by Congress, explicitly acknowledges that the executive branch agencies have power for reduction in force actions.
For example, the statutes pertaining to foreign service explicitly provide that the “Secretary [of State] may conduct reductions in force and shall prescribe regulations for the separation of members of the Service holding a career or career candidate appointment under subchapter III of this chapter.”
The statues that legislate actions taken by the OPM — one of the agencies enjoined by the court in this case — provide for the means by which the “Office of Personnel Management shall prescribe regulations for the release of competing employees in a reduction in force.” (emphasis added).
If congressional approval is required before executive action within its own branch, these statutes approving reduction in force actions are that congressional approval. If Congress has the power to legislate concerning reduction of force, it has already done so in passing statutes that allow these executive agencies to take exactly the action the Trump administration has taken.
It is questionable whether Congress should have any power over the president’s ability to reduce or reorganize employees within his own branch of government. But even if such permission is required, that is precisely what Congress did when it enacted statutes empowering federal agencies to engage in reductions of force.
The Court Is Trying to Limit Presidential Power
What more is being asked for by the court here? There is no reason, constitutional or otherwise, to require Congress to approve every executive decision to reduce or reorganize an agency within the executive branch.
The federal judge in California, a member of the weakest branch of government, has severely overstepped. She has used “separation of powers” as a cover to prevent the president from governing subordinate employees within his own branch of government.
This interference prevents the president from exercising his constitutional duty to run the executive branch. This is not about defending constitutional separation of powers. This is yet another instance of partisan actors preventing President Trump from doing the constitutional duty for which the people of the United States elected him. It has to stop.
Frank DeVito is Senior Counsel and Director of Content at the Napa Legal Institute. His work has previously been published in The American Conservative, the Federalist, Public Discourse, the Daily Wire, First Things, and several other publications. He lives in eastern Pennsylvania with his wife and children. The views expressed in this article are those of the author and not necessarily his employer.
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