A reinstatement push by the Justice Department’s former top bankruptcy watchdog is emerging as an early challenge to the Trump administration’s aggressive campaign to expand presidential authority over a higher echelon of the federal workforce.
Tara Twomey, the ex-director of the Executive Office for US Trustees, is one of several career Justice Department attorneys appealing their firings to the US Merit Systems Protection Board—part of a larger legal battle over protections for senior career employees.
If her termination is upheld, it could expand the president’s authority under Article II of the US Constitution to remove higher-level executive branch officers amid broader proposed cuts for the bankruptcy monitoring unit.
This dispute may boil down to whether Twomey was an “inferior officer” entitled to removal protections under the US Supreme Court’s 1886 opinion in United States v. Perkins, and if the president’s powers supersede similar shields for senior executive service level employees under the Civil Service Reform Act of 1978.
A “very big hole” in the Justice Department’s brief opposing Twomey’s appeal is its omission of Perkins, said Amy Wildermuth, a University of Minnesota visiting law professor. The absence could be strategic, but it signals a troubled path through the MSPB, she said.
Unlike 1935’s Humphrey’s Executor v. United States, Perkins hasn’t been as controversial as other for-cause shields, Wildermuth said, because an agency can usually override any...
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