After repeatedly claiming that he has “nothing to do with Project 2025,” Donald Trump has signed warp speed executive orders to effectuate Project 2025.
A fever dream of Christo-nationalist Heritage Foundation and other extremists, Project 2025 seeks to advance Trump’s authoritarian vision for America. At full tilt, it would enact tenets of Christianity into law (punitive tenets of the Old Testament, not the woke stuff about loving your neighbor), accelerate climate change, further marginalize immigrants and the poor, and replace the federal workforce with Trump loyalists.
Project 2025’s unifying theme is the expansion of executive authority, a GOP goal nearly 40 years in the pipes, and the Republican majority on the Supreme Court may very well let it happen.
Revenge terminations and impoundment
One of Trump’s first acts was to summarily fire Justice Department prosecutors who helped investigate Trump’s criminal attempts to overthrow the 2020 election. In Trump’s trademark Orwellian spin, his executive order weaponizing the DOJ is titled, “Ending the Weaponization of the Federal Government.” The order reads like a campaign ad, and calls investigations into Trump’s J6-relatedcriminality — not Trump’s criminality itself — “misconduct.”
In addition to illegally firing career DOJ prosecutors, Trump is also trying to strong-arm all 2.3 million federal employees into quitting, offering an alleged “buy out” that would pay them to resign now and collect partial salaries through September.
Trump’s attempted purge comes on the heels of a gag order barring external communications from certain federal health employees, and an illegal order unilaterally grabbing the power of the purse from federal legislators by impounding funds they allocated for programs Trump doesn’t like.
Political firings of most federal employees are unconstitutional
The Trump administration has made clear that they are trying to replace career prosecutors and “deep state” employees due to their politics. However, the First Amendment prohibits an elected official from hiring those who support or affiliate with him and terminating employees who do not.
In 1976, in Elrod v. Burns, the Supreme Court held that a public employer inhibits an employee’s constitutionally protected belief and association when it terminates him for lack of political support. In 1980, the Supreme Court reaffirmed this rule in Branti v. Finkel, holding that public employers cannot condition employment on political affiliation because, “[i]f the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes.”
In light of these cases, courts evaluate First Amendment political retaliation claims under the “Elrod/Branti test,” which holds that the First Amendment protects public employees from termination based upon their political beliefs, affiliation, or non-affiliation unless their work “requires” political allegiance. Trump’s personal hope to stay in office for life, an idea he has repeatedly floated, and his desire to use the presidency for profit and revenge, are distinct from the government’s vital interest.
1% is not a mandate
The legal necessity of showing that political firings advance the government’s “vital interest” may be why Trump, Republicans and Fox News keep repeating that Trump won by a landslide, which has given him a “mandate.” Although the First Amendment doesn’t care how popular or hated Trump is, winning by 1% is laughably distinct from winning a mandate.
Trump won 77 million votes compared to Harris’ 75 million votes, or 49% of the vote compared to Harris’ 48%, a difference of 1%. More importantly, in terms of “mandate,” 90 million eligible voters didn’t vote at all, a number that exceeds the number of voters for either Trump or Harris.
In short, out of 245 million eligible US voters, nearly 70% did not vote for Trump. (75m Harris voters + 90m non-voters= 165 million, or 67% of 245 million eligible voters.) Only a math moron would construe this as a mandate.
Trump’s unconstitutional orders are meant to trigger judicial review
In addition to First Amendment protection afforded to all public employees, many statutes creating federal agencies allow termination only “for cause” identified as inefficiency, neglect of duty, and malfeasance in office. Trump’s purge, in light of these statutory protections, is headed to the Supreme Court, where a Republican-appointed majority may strike down the protective statutes, based on its push in recent years to expand presidential authority.
Whether it will also pervert nearly unanimous First Amendment jurisprudence barring political terminations remains to be seen, but as Dobbs recently illustrated, conservative justices who support Project 2025 are unconstrained by precedent.
Current conservative justices take an expansive view of executive power, and may be anxious to invalidate congressional restrictions on the White House. After allowing Trump to commit crimes with impunity, thus serving as Trump’s literal get out of jail card, these Machiavellian jurists won’t likely stop him from building an empire crafted from their own religious values.
Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, the Haake Take, is free.
