Just Another Example of Trump's Reckless, Punitive, and Narcissistic actions

The Kennedy Center is not--and was never intended to be--an agent of the executive branch

You don’t have to be a Washingtonian to love the John F. Kennedy Center for the Performing Arts—but it helps. As one who has long loved its varied programming, from symphonies and ballet to Broadway productions and cutting edge plays, concerts, the Kennedy Center Honors, the Mark Twain Prize and more, I was stunned by the Trump putsch, ousting its core leadership and a swath of its board, making himself the chair, and appointing an unqualified and radical interim leader in Ric Grenell.

I was dismayed at the quick capitulation of its leaders and the fired board members, who relied on the precedent set by Spicer v Biden, a case in which President Joe Biden was sued unsuccessfully by former Trump press secretary Sean Spicer after Biden unceremoniously dumped Spicer and another Trump appointee from the US Naval Academy Board of Advisors. Even though that board’s members were appointed by the president for fixed terms, the judge in that case upheld the president’s authority to fire its members, despite the fact that they had time left in those terms.

On the surface, that case seemed to apply to the Kennedy Center. But there is compelling reason to believe that it does not. In key respects, the Kennedy Center board is very different—and there is a strong case to be made that Trump’s actions are, in fact, illegal.

In Spicer v Biden, the judge noted in his opinion that “Congress created the Board of Visitors to advise the President on the ‘state of morale and discipline’ at the Naval Academy, as well as its ‘curriculum, instruction, physical equipment, fiscal affairs, [and] academic methods.’” To that end, Congress directed the Board to “visit the Academy annually” and prepare a “written report” for the President on both the above matters and “other matters relating to the academy that [it] decides to consider.”

In a key part of his decision, the judge explained that interpreting this to insulate the plaintiffs from removal would raise serious constitutional issues, as Board members are executive officials whose “only role . . . is to advise the President on the performance of a quintessentially executive function.”

In other words, the Naval Academy, a fully governmental entity under the executive branch, with the sole function of advising the president, came entirely under the umbrella of Article II authority, meaning Biden was within his capacity as Chief Executive to remove the members of its Board of Visitors at will.

The Kennedy Center is entirely different. Here are excerpts from the statute creating it as a public/private partnership:

“In general, there is established in the Smithsonian Institution a bureau, which shall be directed by a board to be known as the Trustees of the John F. Kennedy Center for the Performing Arts (hereafter referred to as the "Board"), whose duty it shall be to maintain and administer the John F. Kennedy Center for the Performing Arts and site thereof as the National Center for the Performing Arts, a living memorial to John Fitzgerald Kennedy, and to execute such other functions as are vested in the Board by this subchapter.”

For members, the statute included a specified group of officials, including some Cabinet members, the Librarian of Congress, the mayor and school superintendent of the District of Columbia, and a number of members of Congress, most occupying specific positions of leadership, but a few others appointed by congressional leaders. In addition, the law added 36 general trustees, with the following specifications:

“The general trustees shall be appointed by the President of the United States. Each trustee shall hold office as a member of the Board for a term of 6 years, except that—

• (1) any member appointed to fill a vacancy occurring before the expiration of the term for which the predecessor of the member was appointed shall be appointed for the remainder of the term;

• (2) a member shall continue to serve until the successor of the member has been appointed; and

• (3) the term of office of a member appointed before July 21, 1994, shall expire as designated at the time of appointment.”

The law also established, right below the delineation of the board, an Advisory Committee on the Arts. Here is the establishing language:

“There shall be an Advisory Committee on the Arts composed of such members as the President of the United States may designate, to serve at the pleasure of the President. Persons appointed to the Advisory Committee on the Arts, including officers or employees of the United States, shall be persons who are recognized for their knowledge of, or experience or interest in, one or more of the arts in the fields covered by the John F. Kennedy Center for the Performing Arts. The President shall designate the Chairman of the Advisory Committee on the Arts. In making such appointments the President shall give consideration to such recommendations as may from time to time be submitted to him by leading national organizations in the appropriate art fields. The Advisory Committee on the Arts shall advise and consult with the Board and make recommendations to the Board regarding existing and prospective cultural activities to be carried out by the John F. Kennedy Center for the Performing Arts.”

Let’s parse out what Congress intended in creating the Kennedy Center. While under the aegis of the Smithsonian, it was not intended to be a part of the government, run by the government. The Naval Academy, of course, is run by the Defense Department and the Navy, and headed by an active military leader as its Commandant. The Kennedy Center is a public/private partnership, an entity that gets about 16 percent of its revenue from Congress. Its board does not give advice to the president; it is the equivalent of a board of directors, and that board chooses its chair and its administrative leadership, none of whom work for the government. That the governing board has, by law, members of Congress and local officials shows that it is not an agent of the executive branch.

When Congress wrote the Kennedy Center statute, it deliberately made the members of the advisory committee open to serve only at the pleasure of the president. Donald Trump has the full authority to remove them all and replace them. But if Congress had intended to enable a president to fire at will the members of the governing board, it would have said so explicitly. Even a novice of legislative construction would know that Congress’s intent about the Kennedy Center Board was to have the members serve fixed terms.

There is ample room for a lawsuit overturning Trump’s reckless, punitive, and narcissistic actions in this case. I hope the fired board members have the fortitude to do so. The Kennedy Center is worth saving, and they have the opportunity to do it.