Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—D.D.C.: Trump lacked authority to dismantle board of U.S. Institute of Peace, (May 20, 2025)

By Jason Albright, J.D.

“The President second-guessed the judgment of Congress and President Reagan in creating USIP 40 years ago…”

President Trump lacked the authority to remove the board and president of the U.S. Institute of Peace (USIP)—which was created by Congress and President Reagan in 1984—after deeming the organization “unnecessary” in an executive order issued in February 2025, D.C. federal district judge Beryl Howell found. Although USIP has strong governmental ties and must be considered a part of the federal government, it does not exercise governmental, let alone executive, power under the Constitution, according to Howell. Congress’s restrictions on the President’s removal power of USIP board members were therefore “squarely constitutional,” and the acts of the President and his administration to the contrary are ultra vires (United States Institute of Peace v. Jackson, No. 25-cv-804 (BAH) (D.D.C. May 19, 2025)).

“Peace academy.” USIP, according to the court, was established in 1984 under the Department of Defense Authorization Act of 1985. The effort to create USIP was bipartisan in nature, led by two former World War II veterans, Senators Mark Hatfield and Spark Matsunaga, who had long envisioned a national “peace academy.”

Independent corporation. Congress defined USIP as an “independent nonprofit corporation and an organization described in section 170(c)(2)(B) of Title 26,” 22 U.S.C. § 4603(b), which provides for corporations or foundations “organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes,” 26 U.S.C. § 170(c)(2)(B). USIP has the powers of a D.C. nonprofit corporation, except for the ability to dissolve itself. The corporation receives annual appropriations from Congress to carry out its mission and may also obtain funds through private donations and governmental grants, as well as by charging fees and subscriptions for its publications and educational activities.

Indeed, USIP’s distinctive headquarters (prior to the challenged acts in this case) on Washington, D.C.’s Constitution Avenue were funded through $70 million in private contributions and $99 million of funds appropriated specially by Congress. The headquarters were owned by USIP and maintained by USIP with private funds.

Activities. USIP’s activities, as set out in the organic statute, focus on research, training, and the promotion of peaceful conflict resolution techniques. USIP is also statutorily authorized to respond to requests for investigations, examinations, studies, and reports “on any issue within the Institute’s competence.” Such requests may, for instance, come from Congress. In fact, USIP regularly briefs members of Congress and their staff.

Leadership and staff. USIP is led by a Board of Directors consisting of fifteen voting members: three ex officio members (the Secretary of State, the Secretary of Defense, and the National Defense University President) and 12 members, who are appointed by the President and confirmed by the Senate (“appointed members”). By statute, “not more than eight voting members of the Board... may be members of the same political party.” And the 12 appointed members may serve up to two four-year terms.

USIP officers and employees are also considered federal employees only for limited, express purposes. They are subject to the Federal Torts Claims Act as federal employees are, and they are treated as federal employees for some compensation and benefits-related purposes, but they are paid via a private payroll and receive benefits through private plans.

President’s statutory removal authority. Finally, appointed board members are subject to statutory removal protections and “may be removed by the President” of the United States under three circumstances. First, the President may remove a board member under a classic for-cause provision. Second, the President may remove a board member “upon the recommendation of eight voting members of the Board.” And finally, the President may remove a board member without cause if certain congressional committees agree. He needs “a majority of the members of the Committee on Foreign Affairs and the Committee on Education and Labor of the House of Representatives and a majority of the members of the Committee on Foreign Relations and the Committee on Labor and Human Resources of the Senate.”

Status quo ante. Prior to any of the events giving rise to this litigation, USIP’s president was Ambassador George Moose, who previously served as Chair of the USIP board and, for many years prior, as Ambassador to the Republics of Benin and Senegal, and Assistant Secretary of State for African Affairs. The board consisted of 10 appointed members: five Republicans and five Democrats. Two seats were vacant. The other voting members of the board were, ex officio, Secretary of State Marco Rubio, Secretary of Defense Pete Hegseth, and Vice Admiral Peter Garvin. The Institute employed over 400 employees.

EO 14217. Then, on February 19, 2025, President Trump issued EO 14217, Commencing the Reduction of the Federal Bureaucracy, which ordered the downsizing of “elements... that the President has determined are unnecessary.”

The new administration then, in the words of the court, “rushed through actions, including removal of board members, to reach the professed goal of reducing all of USIP’s operations and personnel to the bare minimum to perform only mandated statutory tasks, while ignoring the broader statutory goals set out for this organization to fulfill.”

“[B]lunt force.” The administration decided to effectuate EO 14217 “through blunt force,” according to the court, “backed up by law enforcement officers from three separate local and federal agencies.” The administration removed the USIP’s leadership, “including plaintiff Board members and its president in contravention of statutory limitations, and had personnel from a newly created federal office, called the Department of Government Efficiency (“DOGE”), forcibly take over the Institute’s headquarters on March 17, 2025.” With a newly installed USIP president, the administration then “handed off USIP’s property for no consideration and abruptly terminated nearly all of its staff and activities around the world.”

USIP now has only four or five employees and is conducting no programmatic activities, according to the court. And although the defendants take the position that USIP is only required to undertake statutory functions using mandatory language, such as “shall,” even the mandatory programs “appear to have been halted.”

Lawsuit. On March 18, 2025, the Institute and five of its purportedly terminated appointed board members sued the then-USIP president, U.S. DOGE Service, U.S. DOGE Service Temporary Organization, several DOGE officials, Secretaries Rubio and Hegseth, Vice Admiral Garvin, and President Trump, alleging ultra vires actions, separation-of-powers violations, and violations of the USIP organic statute, as well as trespass to real and personal property. They immediately sought a temporary restraining order (TRO) and an administrative stay, given that, at the time, the named defendants were entering USIP’s headquarters and allegedly engaging in immediate seizing of property and property damage, including the alleged destruction of financial records. The court did not issue a TRO, finding that the Institute and its five terminated board members had not yet demonstrated a likelihood of success on the merits or irreparable harm.

Following the plaintiffs’ filing of an amended complaint, the defendants proceeded to terminate USIP’s employees and appoint yet another new president, who was then instructed to transfer all of USIP’s assets to the General Services Administration (GSA). The parties then filed cross-motions for summary judgment as to the plaintiffs’ claim for declaratory and injunctive relief against the wholesale dismantlement and effective shuttering of USIP.

Part of federal government. Judge Howell initially observed that USIP is part of the federal government for constitutional separation-of-powers purposes. Although USIP is statutorily defined as an “independent nonprofit corporation,” 22 U.S.C. § 4603(b), “the practical reality of federal control and supervision prevails over Congress’ disclaimer of” USIP’s status.

Not part of executive branch. It is not, however, part of the executive branch, according to the court. First, the defendants’ assumption that every federal entity falls neatly within one branch is not correct, said Howell. Indeed, “Federal entities may be classified as legislative for one purpose but treated as executive for others,” and “entities that perform nongovernmental functions or functions distinct from the three branches (like the grand jury), do not necessarily reside within a particular branch of the federal government.”

Here, the court observed, Congress did not assign USIP to any branch at all, though by labeling it an “independent nonprofit corporation,” suggested that USIP was not an executive branch entity. This stood in contrast to other government entities for which Congress has been clear when assigning entities to the executive branch.

Further, the statute’s explicit statements that USIP’s board members and employees are not officers or employees of the federal government seemed to remove USIP from Article II, 22 U.S.C. §§ 4605(d)(2), 4606(f)(1), as did the requirement that USIP receive annual appropriations to continue using the “United States” as a prefix in its name. Congress’s choice to apply affirmatively to USIP certain statutes and services ordinarily applied automatically to executive branch agencies, such as FOIA, the FTCA, and GSA support, also suggested that Congress did not envision USIP as part of Article II.

No exercise of executive power. “Most crucially,” said the court, USIP does not exercise executive power in the constitutional sense. The executive branch, per the Constitution, “execute[s],” or administers, the laws, and by contrast, purely “investigative and informative activities” are not executive and rather “fall[] into the same general category as those powers which Congress might delegate to one of its own committees.” Although the executive branch “wields significant power over foreign affairs” and the President’s leadership of the military “also confers certain powers over war and peace,” USIP’s activities, by contrast, are solely focused on research, education, and scholarship. USIP does not execute, enforce, administer, interpret, or implement any law. Its purpose, rather, is to provide “the widest possible range of education and training, basic and applied research opportunities, and peace information services on the means to promote international peace and the resolution of conflicts among the nations and peoples of the world without recourse to violence.” 22 U.S.C. § 4601(b) (emphasis added).

In short, the court found, “Research, educational, and scholarly tasks are not ‘executive’ under our constitutional scheme, nor are they legislative, judicial, or governmental at all.” They are instead akin to the powers and duties carried out by private organizations, such as universities or NGOs. “Importantly,” moreover, “when USIP engages with foreign entities abroad, USIP does so as an independent body, not on behalf of the U.S. government.” At most, USIP is thus an external partner to, rather than an arm of, the executive branch, concluded the court. It does not wield the President’s Article II power and cannot be considered part of the executive branch for removal purposes.

Removal of board improper. Accordingly, because the President has no constitutional removal authority outside of the executive branch, President Trump’s removal of the 10 board members here was unlawful, violating 22 U.S.C. § 4605(f).

And everything else… The unlawfulness of the President’s removal decisions also rendered unlawful all the actions that flowed from it, according to the court. Because USIP’s board members and president Moose were wrongfully removed, the new president Trump appointed was also not legally appointed and had no authority to transfer property from USIP to the GSA. The court thus declared that transfer null and void as well.

Injunction. The court issued an injunction ordering the resumption of the 10 terminated members’ positions on the board, along with that of Ambassador Moose as USIP president, enjoining further trespass against USIP property, and enjoining the administration from maintaining control over USIP resources or its name.

The case is No. 25-cv-804 (BAH).

Judge: Howell, B.

Attorneys: Alyssa Howard Card (Zuckerman Spaeder) for U.S. Institute of Peace. Brian P. Hudak, U.S. Attorney's Office, for Kenneth Jackson.

Companies: U.S. Institute of Peace

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