The past two years have been a nightmare for the federal civil service and its employees. Most federal employees understand that, under the Civil Service Reform Act (“CSRA”), after a year or two in their jobs they cannot be fired or demoted without “due process” — specifically advance notice, the right to reply to the notice, and the ability to appeal an adverse decision to the Merit Systems Protection Board (“Board”) and then, typically, to the Court of Appeals for the Federal Circuit.
Beginning in January 2025, however, innumerable employees — including many who worked in DEI, attorneys who worked on January 6 prosecutions, and Immigration Judges — were fired immediately by letter or email. The reason given was not an allegation of misconduct or poor performance, but the President’s authority to take the action under Article II of the Constitution. If appeal rights to the Board was included at all, it was referenced only “if applicable.”
Some employees did appeal, including Megan Jackler and Brandon Jaroch, two Supervisory Immigration Judges who were fired by the U.S. Department of Justice. While the government initially argued that the Board lacked jurisdiction because they were fired under Article II and not the CSRA, it ultimately withdrew that argument and instead contended that the Board did have jurisdiction, but Jackler and Jaroch were not entitled to an opportunity to respond with regard to [their] removal, because the Attorney General is authorized by Article II of the Constitution to appoint and remove Immigration Judges without restriction. The Administrative Judge disagreed and found that 1) he had jurisdiction; 2) the employees were entitled to but denied due process and fired illegally; and, therefore 3) they were entitled to reinstatement with back pay. The government appealed to the Board.
The Board held that it had jurisdiction to consider, on an as-applied basis, whether the CSRA’s removal protections could constitutionally be applied to Jackler and Jaroch specifically — a threshold question it treated as bearing directly on its own jurisdiction, though it disclaimed any authority to rule on the constitutionality of the CSRA’s removal protections generally. The Board found that although Jackler and Jaroch qualified as “employees” under the statute, their positions as immigration judges made them inferior officers who exercise significant adjudicative and policymaking authorities on behalf of the United States. Because officers in that category are presumptively removable at will under Article II, the Board held that the CSRA’s removal protections could not constitutionally be applied to them — and that this constitutional override deprived the Board of jurisdiction over their appeals, which it dismissed accordingly.
Both Jackler and Jaroch appealed that decision to the Federal Circuit, which on June 17, 2026, took the highly unusual step of agreeing to consider the appeal “en banc,” i.e., in front of all the judges, without assigning the usual three-judge panel and waiting for its decision. The appeal schedule has been expedited, with all briefing to be completed by September, and the Court has said that “no extensions will be granted.” Argument will take place thereafter.
Which brings us to Rebecca Slaughter. Article II of the Constitution gives the President the power to “nominate[,] and by and with the advice and consent of the Senate, . . . appoint[,] . . . all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” Congress has routinely created “independent agencies” – Boards and Commissions outside of the Cabinet Departments – and protected those agencies’ leaders from removal except for cause. In the 1930’s, President Roosevelt fired William Humphrey, a member of the Federal Trade Commission (FTC). A unanimous Supreme Court reversed that action, holding in the 1935 Humphrey’s Executor decision that Congress’ language limiting removal of a Commissioner to “inefficiency, neglect of duty, or malfeasance in office” was binding on the President, notwithstanding his Article II power over the executive branch.
The Humphrey’s Executor decision was sharply narrowed in 2020, in the Seila Law case. There, the Supreme Court held that the President must have the power to fire executive officials, with two exceptions: 1) for “expert agencies led by a group of principal officers removable only for good cause,” and–most importantly for our purposes– 2) “that Congress could provide tenure protections to certain inferior officers with narrowly defined duties.” Then, just days ago in the Slaughter decision, the Supreme Court relegated Humphrey’s to history. Although Ms. Slaughter was fired from the same Commissioner position at the same agency as Humphrey, the Court now reversed itself and held that the President’s Article II power allowed such firings after all, and that federal statutes to the contrary were unconstitutional. “If anything more is left of Humphrey’s,” Chief Justice Roberts’s majority opinion announced, “the Court overrules it.”
Significantly, while it is clear from Slaughter that principal officers may be removed by the President, with or without a reason, the opinion does not discuss the exception in Seila Law for “tenure protections to certain inferior officers with narrowly defined duties.” An “inferior officer” is one who is “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate,” and who has “limited duties” and “lacks significant policymaking or administrative authority.” Without question, that definition applies to virtually every competitive and excepted service employee who satisfies the criteria in 5 U.S.C. §7511(a) and (b)—meaning essentially the entire federal civil service.
In other words, Slaughter did not tell us whether the due process protections Congress provided to such “inferior officers” in the CSRA are still available. The Federal Circuit will now have to address that question, and also decide whether the MSPB was correct to characterize Jackler and Jaroch as outside the CSRA because their positions as Immigration Judges had “significant policymaking or administrative authority.” The Federal Circuit’s ruling, whatever it is, will likely be appealed to the Supreme Court, but until then, the CSRA remains in effect, and continues to provide some protection to career federal civil servants from arbitrary or politically motivated firings.