Just a few years ago, then-Senator J. D. Vance of Ohio said that if Donald Trump were reelected, he would advise the president to “fire every single mid-level bureaucrat, every civil servant in the administrative state” and “replace them with our people.” Nearly four weeks into his new term, Trump appears to be executing that plan, attempting to fire or place on administrative leave thousands of federal employees perceived to be politically adverse to him, and reclassifying many more to make them fireable at will. Those hired in their stead will be vetted by Elon Musk’s so-called Department of Government Efficiency, thanks to a new executive order.

Last week, two sets of FBI employees filed the first lawsuits challenging these moves on First Amendment grounds. Both allege that the employees were targeted as a form of retaliation. The essence of a First Amendment retaliation claim is that although the government may deny someone a valuable benefit for any number of reasons, “there are some reasons upon which the government may not rely,” including, pointedly, someone’s “constitutionally protected speech or associations.” The plaintiffs in the FBI cases allege that the Trump administration is demanding a list of 6,000 agents involved in investigating the January 6 and Mar-a-Lago cases in order to possibly punish or purge thousands of agents Trump perceives (surely wrongly in many instances) to be politically opposed to him. The FBI employees should win their First Amendment claims, especially if any mass purge takes place.

[Tom Nichols: Trump and Musk are destroying the basics of a healthy democracy]

Zooming out, thousands of other federal employees could well make similar constitutional claims, because what the Trump administration is doing with the FBI appears to be but a small part of a much larger effort to resurrect a government-wide political-patronage system, something the First Amendment forbids.

From the founding until 1883, a “spoils”—as in, “to the victor belong the spoils”—system of political patronage took root and flourished in the federal government. New administrations would fire federal officials belonging to the other party and hire their own people. President Andrew Jackson became particularly associated with the spoils system after campaigning on rooting out corruption and firing nearly 10 percent of federal employees, replacing many with supporters upon taking office, but he was far from the only president to reward political cronies with federal jobs, as the University of Pennsylvania law professor Kate Shaw has explained.

Political-patronage systems promote corruption at the expense of effective governance, and Americans grew dissatisfied with the cronyism and moblike rule that flowed from the spoils system. Following decades of effort to enact civil-service reform, momentum surged when a disgruntled office-seeker assassinated President James Garfield in 1881. In response, Congress passed the Pendleton Act in 1883 to “regulate and improve the civil service of the United States,” establishing a merit-based system for federal hiring.

Under the current federal civil-service regime, fewer than 4,000 federal employees—including constitutional officers, such as the attorney general and secretary of state, and top agency officials—serve at the president’s pleasure, fireable for political disagreements or pretty much any other reason. The overwhelming majority of the more than 2 million workers who daily serve the American people in the federal civil service are wisely protected from political firings.

That protection flows from something even deeper than the Pendleton Act and other federal statutes. In 1947, the Supreme Court was faced with a First Amendment challenge to the Hatch Act, which limits the extent to which most federal officials can engage in overt political activity while in office. The Court upheld the act but made clear that the First Amendment would prohibit Congress from directly restricting the ability to hold federal offices to members of one party, such as by enacting “a regulation providing that no Republican … shall be appointed to federal office.” Notwithstanding the Court’s guidance, the worst practices of political patronage continued to crop up in state and local governments, forcing the Supreme Court to elaborate the point and put a stop to spoils practices in a series of cases.

The most relevant case to our present-day situation began in 1980, when Republican Illinois Governor Jim Thompson issued an executive order freezing all hiring across state agencies absent express permission from his office. Requests for exceptions became routine, and an agency was set up inside the governor’s office to vet them. Five job-seekers sued, claiming that in practice, the order and exceptions were being used to create a political-patronage system favoring Republicans.

[Annie Lowrey: Civil servants are not America’s enemies]

When the case reached the Supreme Court, the Court held that systems of political patronage like the one established by Thompson violate the First Amendment. Quoting one of its first patronage decisions, the Court reaffirmed that “conditioning public employment on the provision of support for the favored political party ‘unquestionably inhibits protected belief and association.’” Doing so “pressures employees to pledge political allegiance to a party with which they prefer not to associate, to work for the election of political candidates they do not support, and to contribute money to be used to further policies with which they do not agree.” It is “tantamount to coerced belief,” something the First Amendment plainly forbids. Nor did it matter that Thompson had not issued a direct order specifying that only Republicans would be hired, because “what the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly.”

There is an exception to the First Amendment bar on political hirings and firings. Those officials in legitimate policy making positions can be dismissed for political reasons without offending the Constitution. That’s because in America’s representative democracy, it is important that lawful policy reflects the political will of the voters, as voiced by the executive. But the executive cannot simply label large numbers of officials “policy makers” and render them all fireable at will. Instead, courts must look through labels to the substance of an official’s role and determine whether political alignment is necessary in that role. In any given dispute, the government has the burden of demonstrating that a particular position is in fact a policy-making one before the job-holder may be fired based on raw political allegiance.

The Trump administration seems set on flouting this precedent. Throughout the 2024 campaign, Trump and those around him signaled that the MAGA movement would expect total loyalty from federal officials. On Inauguration Day, after taking office, Trump suggested that “all” of the “Biden bureaucrats” should be fired. The same day, Trump signed one executive order to freeze much merit-based federal hiring, and he signed another that will help him consolidate political control over existing employees. The latter order conveniently expanded the number of officials to be classified as policy makers—from fewer than 4,000 to potentially hundreds of thousands. The administration also expanded the type of agency hiring authority that would make bringing in loyalists easier. And late last month, federal employees were informed by email that the majority of federal agencies are likely to downsize, and that loyalty will be a determining factor in deciding who stays.

Meanwhile, purges of employees whom Trump likely views as politically misaligned with him have begun to roll out across agencies. The administration has directed agencies to fire most probationary staff, nearly all of whom were hired during the Biden administration. Department of Education employees were reportedly put on leave for simply attending a DEI training in 2017. The FBI officials who sued say they have reason to believe that the Department of Justice is planning to engage in the mass unlawful firing of agents who had any involvement in certain investigations related to President Trump, including the January 6 cases, and the lawful search of Trump’s residence at Mar-a-Lago. DOJ attorneys involved in the January 6 prosecutions were terminated because their work on those cases purportedly would prevent them from “faithfully” implementing Trump’s agenda. At the beginning of February, the administration moved to shut down USAID entirely. Although the administration explains the move as aimed at preventing waste and fraud, White House Deputy Chief of Staff Stephen Miller said—without citing any evidence to support the improbable claim—that the Trump administration had determined that “98 percent of the [USAID] workforce either donated to Kamala Harris or another left-wing candidate,” and Elon Musk posted on X, “USAID was a viper’s nest of radical-left marxists who hate America.” As for replacing those fired, Trump signed a new executive order this week, directing that all future career-appointment hiring decisions be made in consultation with a team lead from Musk’s DOGE.

[Anne Applebaum: There’s a term for what Trump and Musk are doing]

Taken together, the administration’s actions bear a striking resemblance to the Illinois patronage scheme that the Supreme Court ruled unconstitutional: freeze hiring, purge perceived political opponents, and consolidate all hiring and staffing decisions in a body close to the executive.

The Trump administration clearly knows that the First Amendment prohibits resurrecting a government-wide political-patronage system. That Inauguration Day executive order expanding the number of purported policy makers claims that “employees in or applicants for Schedule Policy/Career positions are not required to personally or politically support the current President or the policies of the current administration.” Similarly, the administration’s implementing guidance, issued at the end of January, in fact cites the Supreme Court’s anti-patronage decisions, specifying that “Patronage Remains Prohibited.”

But the administration’s actions and statements suggest that the resurrection of a political-patronage system is well under way. Particularly if political purges continue, courts must see the anti-patronage posturing as pretext and enforce the First Amendment. As the Supreme Court memorably put it in the Illinois case, “To the victor belong only those spoils that may be constitutionally obtained.”

Donald Trump’s first term saw a great deal of political polarization. Right- and left-leaning Americans disagreed about environmental regulation and immigration. They disagreed about vaccines and reproductive rights. And they disagreed about whether or not to have children: As Republicans started having more babies under Trump, the birth rate among Democrats fell dramatically.

A few years ago, Gordon Dahl, an economist at UC San Diego, set out to measure how Trump’s 2016 victory might have affected conception rates in the years following. And he and his colleagues found a clear effect: Starting after Trump’s election, through the end of 2018, 38,000 fewer babies than would otherwise be expected were conceived in Democratic counties. By contrast, 7,000 more than expected were conceived in Republican counties in that same period. (The study, published in 2022, was conducted before data on the rest of Trump’s term were available.) Over the past three decades, Republicans have generally given birth to more kids than Democrats have. But during those first years of the first Trump administration, the partisan birth gap widened by 17 percent. “You see a clear and undeniable shift in who’s having babies,” Dahl told me.

That isn’t to say 38,000 couples took one look at President Trump and decided, Nope, no baby for us! But the correlation that Dahl’s team found was clear and strong. The researchers also hypothesized that George W. Bush’s win in 2000, another close election, would have had a noticeable effect on fertility rates. And they found that after that election, too, the partisan fertility gap widened, although less dramatically than after the 2016 election. According to experts I spoke with, as the ideological distance between Democrats and Republicans has grown, so has the influence of politics on fertility. In Trump’s second term, America may be staring down another Democratic baby bust.

Dahl’s paper suggested a novel idea: Perhaps shifts in political power can influence fertility rates as much as, say, the economy does. This one paper only goes so far: Dahl and his co-authors found evidence for a significant shift in birth rates only in elections that a Republican won; for the 2008 election, they found no evidence that Barack Obama’s victory affected fertility rates. (They suggest in the paper, though, that the intense economic impact of the Great Recession might have drowned out any partisan effect.) And the study looked only at those three elections; little other research has looked so directly at the impact of American presidential elections on partisan birth rates. But plenty of  studies have found that political stability, political freedom, and political transitions all affect fertility. To researchers like Dahl, this growing body of work suggests that the next four years might follow similar trends.

In the U.S., partisan differences in fertility patterns have existed since the mid-1990s. Today, in counties that lean Republican, people tend to have bigger families and lower rates of childlessness; in places that skew Democratic, families tend to be smaller. And according to an analysis by the Institute for Family Studies, a right-leaning research group, places that tilt more Republican have become associated with even higher fertility rates over the past 12 years. “I don't think there’s any reason to think that’s about to stop,” Lyman Stone, a demographer with the institute, told me.

That Democrats might choose to have fewer babies under a Republican president, and perhaps vice versa, may seem intuitive. People take into account a lot of factors when they’re deciding to have kids, including the economy and their readiness to parent. “People are not just looking at the price of eggs,” Sarah Hayford, the director of the Institute for Population Research at Ohio State University, told me. They also consider more subjective factors, such as their own well-being, their feelings about the state of society, and their confidence (or lack thereof) in political leadership. Trump’s supporters may feel more optimistic than ever about the future, but his detractors feel otherwise. After a few short weeks in office, the president has already announced withdrawals from the Paris Agreement on climate change and the World Health Organization, and paused funding for a slew of government services. Those include child-care-assistance programs, although the administration has promised to support policies to encourage family growth. “If you’re a Democrat and you really care about child care and family leave and climate change,” Dahl said, you might conclude that “this is maybe not the right time to bring a kid into the world.”

Some would-be parents aren’t just worried about the world they might bring a child into—they’re worried about themselves, too. In 2016, Roe v. Wade still protected Americans’ right to an abortion. Since the Supreme Court struck down Roe, states across the country have enacted abortion bans. In some cases, those bans have meant that pregnant women have had to wait for care, or be airlifted to other states; as a direct result, at least five pregnant American women have died. These risks can weigh heavily. After the election, Planned Parenthood locations across the country saw a surge in appointments for birth control and vasectomies.

Brittany, a labor-and-delivery nurse in North Carolina, told me that she and her husband had decided to try for one more kid—she wanted a girl, after three boys—but after Trump was reelected, she changed her mind. (Brittany requested that I not use her last name, in order to protect her medical privacy.) During her first pregnancy, when she nearly lost her uterus to a severe postpartum hemorrhage, doctors stopped the bleeding with the help of a device that can also be used in abortions. Emergency abortion is legal in North Carolina, but Brittany fears that could change or that doctors might become more wary about using those same tools to save her reproductive organs—or even her life—under an administration that has signaled support for anti-abortion groups. Brittany is 37 now, and not optimistic about her chances of getting pregnant in four years, when Trump is out of office. Her husband, who voted for Trump, “thinks that I’m kind of blowing things out of proportion when I say we’re definitely not having another baby because of this administration,” she said. For her, though, it seemed like the only rational choice.

If Democrats’ drops in fertility over the coming years do again outstrip Republican gains, that trend will worsen a broader issue the U.S. is facing: a countrywide baby bust. The fertility rate has been falling for almost a decade, save for a brief pandemic baby boom. Around the world, falling birth rates have set off anxieties about how societies might handle, for instance, the challenge of an aging population with few younger people to care for them. In the U.S., fears about population collapse also have helped unite conservatives with the techno-libertarians who have recently flocked to Trump’s inner orbit. Elon Musk, who has 12 children, has repeatedly claimed that population collapse is a bigger threat than climate change. At the annual March for Life in Washington, D.C., last month, Vice President J. D. Vance told the crowd, “I want more babies in the United States of America.”

So far, no country has hit on the magic public policy that will reverse population decline. Taiwan introduced more paid family leave, along with cash benefits and tax credits for parents of young kids. Russia, Italy, and Greece have all tried paying people to have kids. Japan has tried an ever-changing list of incentives for some 30 years, among them subsidized child care, shorter work hours, and cash. None of it has worked. Vance favors expanding the child tax credit; the Trump administration has also sent early signals of family-first policies, including a memo instructing the Department of Transportation to preferentially direct grants and services toward communities with high marriage and birth rates.

As Musk and Vance fight against population decline, they could entice enough Americans to have kids that they can counteract a Democratic deficit, or even reverse falling birth rates. But that won’t be easy. “There may be a Trump bump in conservative places and a Trump bust in liberal places,” Stone told me. “I would bet on the dip being bigger.”