Power Grab/Fire anyone who can stop him
The Justice Department rules that the Foreign Service Grievance Board cannot have the final word on firing diplomats
An Office of Legal Counsel opinion released August 21, 2026 says the 1980 law giving the board authority to reverse discipline and reinstate officers violates Article II and cannot be enforced.
What happened
On August 21, 2026, the Justice Department released an Office of Legal Counsel opinion concluding that the Foreign Service Act’s grant of final authority to the Foreign Service Grievance Board violates Article II and cannot be enforced. The opinion was written for the State Department’s Legal Adviser and signed by Assistant Attorney General T. Elliot Gaiser.
The board may still hear grievances, but the Secretary of State now makes the final decision. Since 1980, diplomats disciplined or dismissed by State could appeal to the independent panel, whose decisions on discipline and reinstatement the Secretary and the president could not overrule.
OLC cited a 2013 board decision reinstating an officer fired for viewing pornography on a government computer as an example of unchecked power. Gaiser said the advice restored accountability flowing from the people through the president and the secretary to the Foreign Service.
Who benefited
Secretary of State Marco Rubio gained final say over discipline and dismissal of every Foreign Service officer, with the independent appeal reduced to an advisory step. The administration, which had already carried out large State Department layoffs, gained protection against reinstatement orders.
Who wanted something
The State Department’s Legal Adviser requested the opinion, and OLC under Gaiser supplied it. It applies the same unitary-executive reasoning the Supreme Court endorsed in Trump v. Slaughter two months earlier. The move followed the department’s 2025 reductions in force and the removal of officers seen as disloyal.
Who lost out
Career diplomats lost the one neutral forum that could reverse a politically motivated firing. Congress placed final authority outside the secretary’s hands in 1980. An executive opinion, not a court or legislation, has now declared that design unenforceable.
Why it matters
An executive-branch lawyer, not a judge, has declared a federal statute unenforceable, and the official who benefits now decides appeals against his own department. Independent review of firings is the mechanism that makes loyalty-based purges durable.
Sources U.S. Department of Justice (primary)U.S. Department of Justice, Office of Legal Counsel (primary)