Last week, a federal judge in Washington, DC, issued a temporary restraining order to stop Donald Trump’s firing of thousands of employees at the United States Agency for International Development (USAID). The judge was appointed by . . . Trump. I’ve already written about the very real possibility that Trump’s judges may rule against Trump; they did this, after all, repeatedly during his first term. And they’re doing it again, in his second term.

But I want to address here a different, more troubling issue.

In their lawsuit against Trump’s gutting of USAID, the unions that brought suit claimed that Trump had exceeded his legal and constitutional authority by firing thousands of employees. “Not a single one of defendants’ actions to dismantle U.S.A.I.D. were taken pursuant to congressional authorization,” the unions claimed. “And pursuant to federal statute, Congress is the only entity that may lawfully dismantle the agency.”

In the judicial hearing over the suit, Trump’s lawyers defended Trump’s position thus: “To be sure, it’s a large number of individuals” being fired. “But it is still a personnel action.” Being strictly a personnel action within the executive branch, mass firing is within Trump’s power.

If we step back from the immediate conflict and view these conflicting claims of the unions and Trump in historical perspective, we can see that Trump has brought to light a position that has underwritten many repressive moments in America’s past, often with the collusion of the most liberal of people.

One of the most important — but now forgotten — cases of the McCarthy era, or the Second Red Scare as it’s often called, was Bailey v. Richardson. Dorothy Bailey, who was black, worked for the United States Employment Service.

Under Harry S. Truman’s Executive Order 9835 (hear that: executive order), she was hauled before a Loyalty Review Board, where she was asked the following question: “Did you ever write a letter to the Red Cross about the segregation of blood? . . . What was your personal position about that?”

Outrageous, right? What did segregating blood at the Red Cross have to do with the loyalty of a government employee? Well, the Communist Party at the time was pursuing desegregation in all spheres of American social and political life, and desegregating the blood supply of the Red Cross was one of its causes. Advocating that position was evidence that Bailey was a Communist — as one Loyalty Board officer said, “[O]bjection to blood segregation is a recognized ‘party line’ tactic” — which meant that she was disloyal to the US government.

The Loyalty Board deemed Bailey a loyalty risk, and they fired her. Bailey sued the government, with Thurman Arnold (the great New Dealer) and Abe Fortas (later a Supreme Court justice) defending her. She claimed that because the government used secret informers, whom she could not confront, during her hearing, and cited evidence she could not see, her Sixth Amendment rights, and due process rights more generally, had been violated. Being fired was a form of punishment, so the government hearing that determined whether she should be fired was the equivalent of a trial.

The DC Court of Appeals ruled against her, and the Supreme Court upheld the lower court decision. The court’s position was that government employment is not, in fact, a constitutional right, like freedom of speech or freedom of religion, the denial of which must be subject to the protections of due process. “Government employ is not . . . liberty,” said the court. The “due process clause does not apply to the holding of a Government office.” In depriving her of that employ or that office, the government was not bound to follow the constitutional rules of due process. “The question is not whether she had a trial,” wrote the court. “The question is whether she should have had one.” The answer was no.

There’s a long history underlying this decision, which was most famously articulated by Oliver Wendell Holmes in 1892: a citizen “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman” or any sort of government official.

This has always been the secret wedge of the state’s persecution of its own employees, who now number in the millions. Their employment is thought to be simply a form of employment — the court in Bailey said, “The situation of the Government employee is not different in this respect from that of private employees” — so firing them doesn’t raise any question of constitutional rights. Behind that view lies a larger view of employment, public or private, as not involving any constitutional questions at all (unless issues of discrimination on account of race, religion, national origin, etc., are involved).

Back to Trump. We know that he’s pursuing an extraordinarily political program here. We know he’s bent on reshaping not just the federal government but all of American society. His major tool, as we’re seeing and I’ve said, is the use of mass firings. Drawing from a deep vein of American history, which is reinforced in our modern culture by a view of employment as simply employment, Trump wants to treat what he’s doing as simply a “personnel” action, much like what any HR officer does on any given day of the week. His opponents want to treat his actions as involving larger questions of executive versus legislative power.

We’ll see how this plays out. If he ultimately loses, he will have exposed and unintentionally repaired this deep vein and vulnerability in America’s constitutional order, and for that, I guess, we should be thankful. If he wins, it will because he, and the courts that approve his actions, will have been acting very much in the American grain.