A federal judge has blocked President Donald Trump’s firing of two Democratic members of the Privacy and Civil Liberties Oversight Board.
The ruling Wednesday from U.S. District Judge Reggie B. Walton ends the lawsuit brought by two of the three fired board members in February.
The five-member board is an independent watchdog agency housed within the executive branch. Congress created the agency after the Sept. 11, 2001, attacks, and tasked the board members with making sure the federal government’s counterterrorism policies are balanced against privacy and civil liberties.
“The Constitution gives President Trump the power to remove personnel who exercise his executive authority,” White House spokesperson Harrison Fields wrote in an email to The Associated Press. “The Trump Administration looks forward to ultimate victory on the issue.”
Walton said in the written ruling that allowing at-will removal of board members by the president would make the board “beholden to the very authority it is supposed to oversee on behalf of Congress and the American people.”
“To hold otherwise would be to bless the President’s obvious attempt to exercise power beyond that granted to him by the Constitution and shield the Executive Branch’s counterterrorism actions from independent oversight, public scrutiny, and bipartisan congressional insight regarding those actions,” Walton wrote.
The judge said that even though the statute creating the board didn’t include any specific protections from at-will removal for board members, the basic structure and function of the board showed that Congress intended to restrict the President’s power to fire board members.
Former board members Travis LeBlanc and Edward Felten sued in February, asking the judge to find that board members can’t be fired without cause. Otherwise, they said, members would fear that criticizing the executive branch would lead to their dismissal, effectively rendering the agency unable to give candid, independent advice to Congress.
The third Democratic board member removed by Trump had just two days left in her six-year term and did not sue. Another board seat was already vacant, leaving just one Republican-appointed member on the board.
That’s well short of the quorum required for the agency to perform any significant activities, including the duties mandated by Congress like an in-the-works report on the Foreign Intelligence Surveillance Act, LeBlanc and Felten said in the lawsuit.
Assistant U.S. Attorney Douglas Dreier told the judge in court documents that other congressionally-created independent boards do have special protections from removal written into statute. He said the judge should not add a protection that Congress declined to grant, suggesting that would be akin to stepping into a legislative role.
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