Agency Judges’ Job Protections Take Hit in Boost for Trump Power

A Republican-controlled federal worker appeals board has bolstered President Donald Trump’s authority to fire previously protected nonpartisan administrative judges across the government.

A recent Merit Systems Protection Board ruling paves the way for Trump administration officials to fire in-house judges without cause or warning, undermining civil service protections designed to shield them from political pressure, federal employment attorneys say. It supports Trump’s argument that Article II of the Constitution gives him broad leeway to fire people working in federal agencies who influence policy.

The decision to plunge into constitutional matters is unusual for a board that’s historically focused on enforcing the Civil Service Reform Act, a set of good-government reforms passed by Congress in the wake of the Watergate scandal, federal employment attorneys say.

“It’s a mess,” said Ariel Solomon, who specializes in MSPB cases.

The board found that two chief immigration judges could be fired at will, breaking with decades of precedent that held that the more than 1,000 administrative law judges—and about 10,000 other adjudicators across the federal government—who work for the executive branch and deal with everything from labor disputes to asylum claims cannot be fired without cause.

The Republican members said that the Justice Department’s immigration judges—who review petitions from migrants seeking entry to the US—weren’t entitled to protections under the Civil Service Reform Act. The board argued that the judges make policy and do not work strictly on administrative matters, and therefore answer directly to the president.

The board ruled that the judges’ civil service protections impeded Trump’s constitutional authority to oversee the executive branch. While the board said its ruling addressed constitutional matters “as applied” to the immigration judges, it sets a precedent for other agencies with quasi-judicial officers.

“This decision will apply to all administrative law judges,” said Michael Fallings, an attorney at Tully Rinckey PLLC.

The judges appealed to the US Court of Appeals for the Federal Circuit.

Inferior Officers

The two-member, all-Republican MSPB argued that immigration judges exercise independent judgment—and that their decisions on legal admission to the US become “final decisions of the United States” if not appealed.

“The default rule,” they wrote, “is that the president possesses unfettered removal authority over certain constitutional officers in the Executive Branch.”

The opinion follows a DOJ memo last year to the MSPB, arguing that the board must weigh constitutional issues when they arise.

“This case cannot be seen in isolation,” said Raymond Limon, a former Democratic member of the MSPB. “It’s part of a long pattern of sliding back to the spoils system.”

Trump remade the MSPB last year by firing Democratic member Cathy Harris and later naming a Republican to replace her. Harris appealed to the US Supreme Court after a federal appeals court sided with Trump.

The remaining two seats are filled by Henry Kerner, who serves as acting chairman, and James Woodruff II. MSPB spokesman Zachary Kurz declined to comment, saying the board “generally speaks through its decisions.”

Kerner was nominated to his post by President Joe Biden. MSPB cannot consist of more than two members of the same party, according to its bylaws.

Kerner and Woodruff’s argument comports with the administration’s view that Article II grants expansive power to the president. Government attorneys have frequently staked out the position when defending terminations.

“In short, the MSPB has broad authority to consider legal issues—statutory and constitutional—that arise while adjudicating appeals that are properly before it,” T. Elliot Gaiser, an assistant attorney general in the DOJ’s Office of Legal Counsel, wrote in last year’s memo to the board. “And it is obliged to do so where, as here, a constitutional issue is material to the ‘decision of the agency.”

The Supreme Court is weighing the future of a 1935 precedent in Humphrey’s Executor v. United States, which held that Congress could enact laws shielding some independent agency officials from being fired without cause. Last year, the conservative majority allowed Trump to fire top officials at independent agencies, including Harris, while a legal challenge proceeds.

Already there’s been a chilling effect, critics say, including at the MSPB, with officials more reluctant to challenge the administration for fear of retaliation.

“They read the newspapers, they see all these highly placed federal officials being fired if they say anything that goes against the administration’s desires,” Limon said. “Behind their words is the ability to be fired at any time.”