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National Institute for Allergy and Infectious Diseases Director Dr. Anthony Fauci speaks during a press briefing with President Donald Trump about the coronavirus, Feb. 29, 2020. (AP) National Institute for Allergy and Infectious Diseases Director Dr. Anthony Fauci speaks during a press briefing with President Donald Trump about the coronavirus, Feb. 29, 2020. (AP)

National Institute for Allergy and Infectious Diseases Director Dr. Anthony Fauci speaks during a press briefing with President Donald Trump about the coronavirus, Feb. 29, 2020. (AP)

Jon Greenberg
By Jon Greenberg November 2, 2020

If Your Time is short

  • Trump couldn’t fire Fauci directly. He would need to work through the director of the National Institutes of Health.

  • Fauci is a civil servant and has the right to appeal a termination.

  • A new executive order could strip Fauci of those protections, but the legal status of that order has been challenged.

While President Donald Trump has been saying that the country is rounding the corner on the coronavirus pandemic, the government’s head of infectious diseases Anthony Fauci has said the opposite, warning that the country "is in for a whole lot of hurt."

"All the stars are aligned in the wrong place as you go into the fall and winter season, with people congregating at home indoors," Fauci said in a Oct. 30 interview. "You could not possibly be positioned more poorly."

That sobering take hasn’t gone down well with Trump’s supporters.

At a Florida rally, when Trump talked about COVID-19, they chanted "Fire Fauci. Fire Fauci. Fire Fauci." Trump said he appreciated the advice.

"Don't tell anybody, but let me wait till a little bit after the election," Trump said Nov. 1.

That not-so-subtle hint led former President Barack Obama to say, "Now they want to fire the one person who can actually help them contain the pandemic."

The question is, could Trump fire Fauci?

The short answer is he could try, but if Fauci didn’t want to go, it’s not clear Trump could succeed. Trump would run up against a bulwark of laws dating back to 1883, laws specifically designed to protect civil servants from political whims and pressure.

Trump just signed an executive order aimed at undoing those protections for people in the most senior positions, but the rules remain in flux, and Trump’s order faces legal challenges.

Current rules

Under current law and regulation, Trump would need to show that Fauci either was incompetent or was guilty of misconduct. And Trump couldn’t fire Fauci directly. He would need to order his Health and Human Services secretary and the director of the National Institutes of Health to do it. 

Assuming his superiors went along with Trump’s order, if Fauci declined to go quietly, he could appeal.

"I’d almost dare Trump to try," said New York University public service professor Paul Light. "If he wants to find out how resistant this system can be, let him find out."

Fauci’s first step would be an appeal to the Merit System Protection Board, a body created in 1978 to stand between civil servants and the actions of the political appointees who oversee them. That 1978 law — passed in response to a set of Nixon administration tactics aimed at driving unwanted civil servants out of their positions — gave senior civil servants such as Fauci even more protections than your run-of-the-mill government employee. 

"If he didn’t get satisfaction with the board, he could take his case to a federal circuit court," Light said.

There’s a hitch, however. 

"At this point, the Merit System Protection Board is nonfunctional because it has no members," said University of Texas at Austin public affairs professor Donald Kettl. 

That would put Fauci in a bind. Without an appeals board — and the members are confirmed by the Senate — he would be out of a job pending a board decision.

Kettl and Light agree that if Fauci could appeal, Trump would face long odds charging Fauci with misconduct or poor performance.

"That is a case that would be very, very difficult to make, given his performance over the last eight months and his extraordinary stature in the public health community," Kettl said.

Trump would face the additional hurdle of getting Fauci’s superiors to go along.

"Whether they would do that would be a matter of conscience," said Max Stier, president and CEO of the Partnership for Public Service, a group that advocates for more effective government. "When President Richard Nixon ordered his Attorney General to fire the special Watergate prosecutor in 1973, he resigned. When he ordered the deputy attorney general, he resigned too."

The X factor: Trump’s new executive order

At the end of October, Trump signed an executive order aimed at making it easier to fire senior level civil servants. It created a new class of positions that fall under the umbrella of "policy-determining, policy-making, or policy-advocating." For these jobs, the traditional appeal process would disappear.

"It likely would apply to Fauci, "said Tim Stretton, a policy analyst with the Project on Government Oversight, a group focused on waste and abuse of government power. "It could make firing him very easy."

Not so fast, said Stier.

"The order doesn’t change anything yet," Stier said. "It gives agency heads 90 days to designate this new class of civil servant. And there are questions about its legality, because the civil service is based on statutes."

The National Treasury Employees Union, representing 150,000 federal employees recently filed a lawsuit against the order’s implementation. The American Federation of Government Employees, the largest union representing federal workers, has called the executive order "a declaration of war on the civil service."

Finally, Congress could pass a law to protect someone like Fauci. Steir said that would be in line with the origins of the modern civil service with the 1883 Pendleton Act.

"The whole intent was to enable experts, like Fauci, to give their best advice without fear of retribution for political reasons."

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Our Sources

Factbase, Donald Trump Holds a Campaign Rally in Opa-Locka, Fla., Nov. 1, 2020

Federal Register, executive order 13957, Oct. 26, 2020

Project on Government Oversight, Trump’s New Executive Order Would Enable Government Corruption, Oct. 30, 2020

Washington Post, ‘A whole lot of hurt’: Fauci warns of covid-19 surge, offers blunt assessment of Trump’s response, Oct. 31, 2020

National Treasury Employees Union, Complaint for declaratory and injunctive relief, Oct. 26, 2020

U.S. Merit Systems Protection Board, About, accessed Nov. 2, 2020

FELTG.com, Is There a Legal Path to Fire Dr. Fauci?, July 15, 2020

Interview, Paul Light, professor of public service, New York University, Nov. 2, 2020

Email exchange, Donald Kettl, professor of public management and public policy, University of Texas at Austin LBJ School of Public Affairs, Nov. 2, 2020

Interview, Max Stier, president and CEO, Partnership for Public Service, Nov. 2, 2020

Interview, Tim Stretton, policy analyst, Project on Government Oversight, Nov. 2, 2020

 

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