Are Shutdown Firings Legal & Mangione Wants Death Penalty Tossed

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1:45David Super:This is Bloomberg Law with June Grosso from Bloomberg Radio. There have been 15 government shutdowns in the last 44 years, but no president has ever used a shutdown to fire large numbers of federal employees until Donald Trump. Even before the shutdown began, Trump threatened to fire federal workers, and he's made good on those threats. According to court filings, at least 4 ,000 federal workers across different agencies have already been fired. Trump blames it on the Democrats. It's taking place right now, and it's all because of the Democrats. The Democrats are causing the loss of a lot of jobs with their—it's a shutdown.

2:34David Super:It's their shutdown, not our shutdown. It's their shutdown. To be clear, the firings are different from the furloughs that always occur when government funding runs out. And this unprecedented action by the Trump administration puts the government in uncharted legal territory because there's no law, rule or regulation that gives the president license to fire federal employees just because funding has lapsed. Joining me is constitutional law expert David Super, a professor at Georgetown Law. He's written about the firings in The Balkanization, a blog of constitutional law scholars. David, no administration has ever engaged in large-scale firings of federal workers during a shutdown before.

3:24So there'll be no legal case directly on point. But is it legal?

3:29David Super:It pretty clearly is not legal for them to do it. For one thing, there's a lapse in appropriations right now. So laying people off requires government activity that is not funded. So simply we think of a layoff as a negative thing, but it takes positive action to figure out who you're going to lay off, what date you're going to lay them off, send them a message and so on. Those are all non-emergency actions that the government can't do when it's unfunded. So right there, that makes it illegal. The first challenge is likely to be based on the Anti-Deficiency Act. So tell us what the Anti-Deficiency Act is.

4:11David Super:Well, the Constitution says that no funds shall be drawn from the Treasury except if appropriated by Congress. And the Anti-Deficiency Act is a law Congress has passed and revised many times to implement the appropriations clause to make sure that people aren't just spending public money or committing public money on their own. The Anti-Deficiency Act basically says that it is a crime for a government official to spend public money without an appropriation. It also says it's a crime to accept voluntary service. The reason it says it's a crime to accept voluntary service is because Congress has been around that game plenty of times where someone works supposedly for free and then turns around and wants to be paid.

5:02David Super:So they said, no, we don't even allow you to take volunteer labor unless there's an appropriation to cover the cost. Has anyone ever been prosecuted under that law? There hasn't been, perhaps not surprisingly, because the people who would violate it would be members of the same administration as the attorney general in charge of the Justice Department. But also, frankly, because people take it very seriously. And I have been involved in a number of cases where government lawyers will do just about anything except something that looks like it might be a violation of the Anti-Deficiency Act. And they will dig in their heels and stand on their head to avoid being seen as going crosswise to that, which I admire.

5:51So what might the administration's response be to lawsuits challenging the firings under the Anti-Deficiency Act?

6:00David Super:It's a little unclear, but they seem to be saying that this is an inherent power of the president, which is pretty strange because everything the government does, particularly under their unified executive theory, is a power of the president. So does that mean that this inherent power of the president, which they can't locate anywhere in the Constitution, overrides the appropriations clause, which absolutely does appear in the text of the Constitution? It's a very strange argument. The second possible problem here, some of the firings might be illegal impoundments of appropriated funds where unexpired appropriations remain available to pay the terminated employees.

6:45David Super:Yes, the Supreme Court in 1975 ruled unanimously that President Nixon could not refuse to spend money that Congress had appropriated, that that's not within the powers of the president. Justice Rehnquist signed on to that. Justice Douglas agreed with that result. Everybody, of all perspectives on the court, said, no, the president cannot overrule a congressional appropriation unless Congress makes the spending conditional on the president's choice. So when Congress has, for example, provided funding for the Centers for Disease Control or the Office of special education or community economic development.

7:30David Super:Those funds must be spent by the president. You can't spend money on the Centers for Disease Control staff if the staff are gone. So he is effectively setting himself up to refusing to spend money that Congress appropriated. That's not appropriate. And in some of these lawsuits that have been brought about, you know, the massive federal layoffs initially initiated by Elon Musk. Has the Supreme Court taken a position on this? The Supreme Court has not reached the merits of any of these cases. They have indicated that they don't want the government ordered to spend money until a case has been firmly resolved.

8:17David Super:But that's not based on the merits of the case, but just on the sense that if the government spends the money, It could never get it back if it ultimately wins the case. So the only decisions we really have from the Supreme Court are the unanimous decision from 1975 that says the president has no inherent authority to impound money, and a 6-3 decision from 1998 that said that even when Congress allows the president to impound money, he still can't do it. But neither of those are from the Roberts Court, which, as you know, has expanded presidential authority in ways that most scholars thought they never would.

8:58So is the Roberts Court perhaps going to be different?

9:02David Super:Well, there's only one justice currently sitting who is sitting in 1998, and that's Justice Thomas. And he voted with the majority that even when authorized by Congress, the president may not impound money. The court, in the opinion that Justice Thomas signed on to, said that's effectively giving the president the power to amend the law. And under our Constitution, only Congress can amend laws. The third ground to challenge the firings that you mentioned in your article is that the action likely violates permanent laws creating and assigning duties to the agencies affected. Explain that argument.

9:43David Super:Certainly, we don't just come upon these government agencies by chance. They're generally created by Congress. So the Congress has passed a law calling for the Center for Disease Control, saying that it is vitally important to the nation's protection against disease and needs to have the resources to respond. You don't have the resources to respond if all your staff is at the unemployment office. So this is effectively a violation of the law creating the Centers for Disease Control. Similarly, there's a law creating the Office of Special Education at the Department of Education, giving it a lot of very heavy responsibilities.

10:25David Super:It can't perform that if it doesn't have any people. And that's true for pretty much all of the agencies affected here. Congress has told the president to get this done. It has provided the money to get this done, and the president's refusing to get this done. In some of the preliminary cases, though, I can think of the Department of Education cases. The Supreme Court has allowed the president to keep doing what he's doing, though, right? They haven't put a stop on his firing people or not using funds. They haven't, again, not because they've said it's legally correct, but because they've said that they don't want any interim orders to the president compelling this because the president wouldn't be able to get the money back if the case was ultimately decided in the president's favor.

11:18David Super:Once these cases have worked their way through the system, which I think is very possible in the current Supreme Court term, we'll now know what the current court thinks about all these things. And at that point, I think it'll be very easy to get emergency orders against them from doing something that we've recently been told is illegal. That would certainly be a change from the emergency docket. OK, stay with me. Coming up next, I'll continue this conversation with constitutional law professor David Super of Georgetown Law. After the shutdown, what legal action can federal workers who were fired take?

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13:34David Super:If your best finance people are doing expense reports, chasing receipts, or spending time on month-end close, it's time to get Brex AF, A gentic finance that eliminates that work before it starts. Learn more at Brex.com slash AF. Hundreds of thousands of government workers have been furloughed in recent days. And in a court filing on Friday, the Office of Management and Budget said well over 4 ,000 federal employees would soon be fired in conjunction with the shutdown. Labor unions have already filed a lawsuit to stop the move by President Trump's budget office, which goes far beyond what usually happens in a government shutdown.

14:16No president before has used a shutdown to fire large numbers of federal employees. I've been talking to constitutional law professor David Super of Georgetown Law, who's written about the various ways the shutdown can be challenged. A final ground you mentioned in your article is that this action likely violates several civil service laws because the Trump administration may not have complied with every single requirement in civil service laws. And there must be a lot of civil service laws about this.

14:52David Super:There are, and there are very detailed laws about prioritizing who gets laid off when there is a layoff. There's no clear evidence that they've followed that. There are laws about giving people who are more senior the opportunity to bid for other jobs in the government. Nothing that I've seen in the layoff notices that have been shared with me or that I've read in news accounts suggests they're doing anything of that. And most fundamentally, there is very extensive civil service law against politicizing the civil service. And the president has said he's laying people off from Democrat agencies.

15:35David Super:I thought they were United States agencies, but apparently he considers them Democrat agencies. And laying people off on the basis of their political beliefs, because they're perceived to be Democrats and Democrat agencies, violates several provisions of civil service law against politicizing our civil service. The main government workers' unions filed a lawsuit on September 30th, even before the shutdown began. and also the AFL-CIO did. Has the Supreme Court rejected the idea of standing by unions in this kind of situation? It said very little, but there was a case brought by unions and non-profits against layoffs in the spring, and the Supreme Court stayed.

16:27David Super:It froze the lower court's injunction and said that it had concerns about the standing of the plaintiffs. Like so many of these shadow docket decisions, it didn't say what those concerns were. It didn't give us any sense as to whether it thinks these plaintiffs are hopeless or whether it thinks their lawyers just filled out the paperwork wrong. In this case, you had Russell Vaught on social media saying, you know, the rifts are coming. And as you mentioned before, the Anti-Deficiency Act is pretty well known to government officials. So is it the case that the career officials are gone or are not advising against actions that will clearly lead to lawsuits where the government is not in the best position?

17:15David Super:A lot of queer people are gone, fired, or encouraged to retire or to leave by various waves of actions in departments and by those generally. Others have been made very clear that their opinions are unwelcome. Indeed, when you see someone raising concerns about violations of law and that person is promptly fired, you don't raise them yourself. And that's completely contrary to the system we've had for a long time. The courts have trusted the United States government precisely because there was a core of career people, lawyers and others, who were very careful that they always followed the law.

17:56David Super:Political officials can make the policy choices, that's why we have elections, but the law is permanent until someone changes it and career people have quite properly refused to do illegal things throughout the years. That safety net of honorable queer people has been ripped apart. Do you think this is President Trump once again testing and trying to expand his powers? Or is it just his theme of there's too much federal government, too many workers, and I want to cut it down? He's suggested that this is political retribution, that he's doing this to punish Senate Democrats for not agreeing to the legislation that his administration wrote without changes.

18:44David Super:So I have to assume that this is an effort to play politics and put pressure on the Democrats to fold in the current standoff. Now, if federal workers are fired during the shutdown, afterwards, what's their avenue of appeal? Do they try to go to the Merit Systems Protection Board? There have been courts that say that if they believe they've been fired improperly, they must go to the Merit Systems Protection Board. But that's not going to work very well because President Trump illegally fired the only Democratic member of the board. It now doesn't have a quorum and can't hear their cases. President Trump could have appointed a replacement for that person he fired, but he's not chosen to do so.

19:29David Super:So he has effectively disabled the body responsible for policing his own actions. What about the civil service laws? It seems likely that the Trump administration did not follow the civil service laws. So is that an avenue of appealing their termination or getting back pay? In theory, they would go to the Merit Systems Protection Board, and if it ruled against them, they could take that to court. But in practice, they're not getting any rulings favorable or unfavorable from the Merit Systems Protection Board because it can't function without a quorum thanks to President Trump's illegal firing of its Democratic member.

20:09David Super:So they're really stuck in a trap. In past times, the Supreme Court has said if appealing to an administrative body would be clearly futile, you don't have to do it. You can go straight to court. This Supreme Court seems less likely to go in that direction. So much these days seems to depend on the Supreme Court, and we will watch how this litigation unfolds. Thanks so much, David, as always. That's Professor David Super of Georgetown Law. Support for the show comes from public.com. If you're actively involved in your portfolio, you probably catch yourself repeating the same actions. Buying the dip, manually sweeping idle cash, putting on a hedge.

20:52David Super:On public, you can now create AI agents that handle all these tasks on your behalf. Just describe what you want to do in plain English. Like, if the VIX hits 25, buy a put option on the S &P 500. Or, if my cash balance goes above$20 ,000, move the excess into my direct index. You approve of the workflow and your agent handles the risk. Monitoring the market, watching for your conditions, and executing your strategies exactly as defined. An investing platform driven by your intent, not just your clicks. You can also get full read and write access to your account via the public API. Go to public.com slash market and fund your account in five minutes or less.

21:33David Super:That's public.com slash market. Paid for by Public Investing. Brokered services by Open to the Public Investing, Inc., member FINRA and SIPC. Advisory services by Public Advisors, LLC, SEC Registered Advisor. Complete disclosures available at public.com slash disclosures. This message is brought to you by Apple Card. Apple Card lets you earn daily cash back on every purchase, every day. Applying the Wallet app on iPhone today. Subject to credit approval, Apple Card is issued by Goldman Sachs Bank USA Salt Lake City Branch. Terms and more at applecard.com. If your best finance people are doing expense reports, chasing receipts, or spending time on month-end close, it's time to get Brex AF, a gentic finance that eliminates that work before it starts.

22:18David Super:Learn more at brex.com slash AF. Luigi Mangione's lawyers are asking a New York federal judge to dismiss some criminal charges, including the only count for which he could face the death penalty. His lawyers also said that prosecutors should be prevented from using at trial his statements to law enforcement officers and his backpack where a gun and ammunition were found. They say Mangione was not read his rights before he was questioned by law enforcement officers. They added that the officers did not obtain a warrant before searching Mangione's backpack. The 27-year-old has pleaded not guilty to state and federal charges in the fatal shooting of health care executive Brian Thompson on December 4th as he arrived at a Manhattan hotel for his company's annual investor conference.

23:12Pat, tell us about the charges that the defense is asking the judge to drop against Mangione. These two counts, especially count three, murder using a firearm, is the death penalty eligible count. It makes sense for Luigi Mangione's criminal defense lawyers to make this argument because that would basically stop the government or block the government from putting him to death if a jury would find him guilty and then decide that he should face the death penalty. It's always a two-part thing. Of course, you know that. So basically, that's the effort to try to hamper the government from proceeding with the two gun charges.

23:53Count four is using a firearm. But basically, Mangione's lawyers are saying, you know, he's accused of stalking. And one of them is cyber stalking. And his lawyers are saying there's no evidence. So these things don't feed into each other. So it's sort of like a natural chain of failing to prove their case, prove it up to support the counts three and four. Yeah, they're saying stalking isn't a crime of violence, right? Right. And it shouldn't trigger automatically the capital punishment, which is what the DOJ and Pam Bondi has said. The defense has gone on overdrive to try to assail the way the government came upon the death penalty.

24:35I mean, typically what has happened, I mean, not only did Joe Biden's administration put a pause on the death penalty for a while there. And of course, when Trump came back in, he took it off and his attorney general did not use, we've talked about this before, there's a death panel, which basically at DOJ hears a presentation from the defense about whether or not they're mitigating circumstances that the person should not face the death penalty. So these were skipped over according to Mangione's lawyers. And now they're basically uptacking the way the government came upon this indictment, that it's flawed.

25:14Yeah. Now, something I found this very surprising. They're saying that prosecutors should be barred from using some statements he made to police before he was arrested. And evidence found inside his backpack, which includes a gun and ammunition, because the police didn't read his Miranda rights to him before questioning him and didn't get a warrant before searching his backpack. Yeah, they describe it. It's incredible. I mean, so the scenario we've all heard is, you know, that here he was and Mangione was, you know, approached by Altoona police. And, you know, immediately they found his backpack and they arrested him.

25:56And, you know, it's a story that his lawyers challenge saying that they had video body cam footage as well. And they showed outtakes that they have. But one of the female officers, she picks up his backpack. She doesn't ask for it. She just grabs it, picks it up and takes it away from him and starts rooting around in it and looking around and picking through it. And she finds things such as the gun and the ammunition, as well as his alleged diary, which the prosecution has called a manifesto. But all this evidence was done before they ever got a search warrant. And the female officer claimed that she was worried about him having a bomb.