The New York Times and the Broken Merit Systems Protection Board

Abraham Lincoln complained about office seekers, comparing their demands unfavorably to those of the Civil War and finding them more taxing on his personal resources than the rebels. Various post-war reforms did away with the patronage system, but the Supreme Court may be bringing it back with its Slaughter decision, among others. The next shoe to drop may be the Merit Systems Protection Board (MSPB), which is supposed to protect federal workers from unlawful dismissals. If those protections are removed, future Presidents may be inundated with demands from exigent office-seekers, whose needs are all the more urgent because the offices they seek are so lowly.

On Valentine’s Day, 2025, the acting director of the Executive Office of Immigration Review notified two immigration judges (IJs) that their employment was terminated, effective immediately. Within a week, both challenged their terminations, relying on procedural protections provided under pre-termination procedures set forth in 5 U.S.C. § 7513(b). The Office of Personnel Management intervened in the case. It filed a brief arguing that the President cannot fully “take Care that the Laws be faithfully executed” if he is unable to remove constitutional inferior officers at will and that the Civil Service Reform Act (CSRA) cannot be read to preclude an Article II removal by the head of a Department.  This is Humpty Dumpty-level use of language. The Take Care Clause has to be a limit on other Executive Powers; it cannot be a ground for the President to disregard inconvenient federal enactments.

An administrative judge who heard the IJs’ challenge just followed the law. The IJs are entitled to pre-termination review under the statute. They didn’t get it, so they are entitled to reinstatement.

In March, the MSPB issued its Opinion and Order upholding the power of the Attorney General to remove immigration judges. In the opinion, the Board spent some time establishing its authority to consider as-applied constitutional challenges to 5 U.S.C. § 7513(b). Having satisfied itself of its own jurisdiction, the Board then considered whether there can be any statutory limits on the President’s power to remove inferior officers such as the IJs. In this case, because the IJs exercise “independent judgment and discretion,” the Board concluded that it had no jurisdiction to review the President’s termination decision. 

The MSPB thus held that the Attorney General exercises unreviewable removal powers under Article II over inferior federal officers who exercise significant adjudicative and policymaking authority on behalf of the United States. That Article II power negates otherwise-applicable statutory removal protections and thus deprives the MSPB of jurisdiction. Arguing that the power to remove follows from the unitary executive makes more sense to me than relying on the Take Care Clause, but it is hard to reconcile the current scope of the youthful and non-textual unitary executive theory with the ancient but equally non-textual doctrine of checks and balances.

According to reporting in The New York Times from Jonah E. Bromwich, Michael S. Schmidt and Rebecca Davis O’Brien, the MSPB opinion broke with decades of precedent. The report also contends that the opinion was the product of a pressure campaign orchestrated within the White House and that the members of the MSPB who produced the opinion were operating under imminent threat of termination if they did not rule as the administration wanted. One MSPB member had already been dismissed. Does that matter?

I’m not sure what to make of the New York Times ‘claims. It seems possible that the current Supreme Court would uphold the decision, finding that it follows from the line of cases going back to Seila Law and now perhaps Myers, revived through Slaughter. Does that change because the White House allegedly influenced the opinion? What would it take to persuade the Court that found no anti-Haitian racism in the Mullin v. Doe TPS decision that some principle of adjudicative fairness is violated by jawboning among executive branch employees?

The New York Times reporting might be deployed in support of a Jarkesy-like challenge to adjudication in an administrative agency like the MSPB. The analogy to Jarkesy might be problematic, because the claims that the MSPB hears might be equitable or distinctly statutory and thus not the sorts of claims that trigger a Seventh Amendment right to a civil jury. Still, at least some of the claimants would seek back pay, which sure seems like a legal remedy with a common-law analog.

Perhaps more powerfully, Chief Justice Roberts’ objection to administrative adjudication in Jarkesy was that it permitted “Congress to concentrate the roles of prosecutor, judge, and jury in the hands of the Executive Branch,” an offense against the principle of separation of powers. That problem is exacerbated with respect to the MSPB if that agency is subject to coercive forms of persuasion emanating from the White House. Unlike the SEC, which is in-house, the MSPB is supposed to be a neutral, specialized adjudicatory body. However, if we are going full-in on the unitary executive theory, that distinction makes no difference. Moreover, as Justice Gorsuch noted in his Jarkesy concurrence, the fact that the government is both a party and the adjudicator in administrative proceedings likely contributes to the far better rates of success for the government in such proceedings compared to comparable proceedings in Article III courts. Justice Gorsuch found that the government wins in 90% of its SEC adjudciations but in only 69% of its cases in Article III courts. In MSPB proceedings, things go even better for the government. Only 3% of federal employees win their appeals before the MSPB.

Margolin v. NAIJ indicates that courts remain open to the possibility that the MSPB is not a functioning, neutral, adjudicatory body. In that case, an organization of immigration judges (NAIJ) challenged new restrictions on their speech in federal District Court. The District Court dismissed, holding that the claims needed to be brought before the MSPB. NAIJ appealed, arguing that its claims were constitutional in nature and were not subject to the MSPB’s jurisdiction. The Fourth Circuit rejected that argument but remanded the case for fact finding on whether the MSPB was currently functioning. SCOTUS reversed and remanded, finding that the Fourth Circuit’s decision violated the party presentation principle. Justices Thomas (above) and Barrett concurred, noting their disagreement with the substance as well as the form of the Fourth Circuit’s ruling. To them, it was none of the Fourth Circuit’s business whether the MSPB is functioning as Congress intended. But seven Justices seemed to think it should matter whether the Article II adjudicatory body is actually functioning. And if it is functioning, perhaps it should matter that it is no longer neutral because, under the unitary executive theory, it has to give effect to the President’s policy preferences, even if they involve disregarding statutory commands.