On July 8, 2026, we published a blog exploring the future of the career federal service after the Supreme Court’s decision in the Slaughter case, which held that as a principal officer of the Federal Trade Commission (appointed by the President and confirmed by the Senate), Ms. Slaughter could be removed by the President for any reason even though the statute that created the FTC provided that she could only be removed “for cause.”
Article II, Section 2 of the Constitution specifically refers to the appointment of officers in the Executive Branch, who are expected to assist the President in running the government. First, Section 2 refers to the “principal officer in each of the executive departments”, who the President may appoint “by and with the advice and consent of the Senate . . . [and ] all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” Second, however, Section 2 expressly provides that “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.”
The Supreme Court has repeatedly noted the difference between “principal” and “inferior” officers. An officer is “inferior” rather than “principal” if their work is “directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” Edmond v. United States, 520 U.S. 651, 663 (1997); see also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 510 (2010). Moreover, an inferior officer is one who has “limited” duties and lacks significant policymaking or administrative authority, Morrison v Olson, 487 U.S. 654, 671, 691 (1988); Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 218 (2020), and whose decisions are subject to comprehensive review by a politically accountable superior. United States v. Arthrex, Inc., 594 U.S. 1, 23–26 (2021).
As far back as 1886, the Supreme Court noted the distinction and affirmed that the “constitutional authority in Congress to thus vest the appointment [of inferior officers] implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.” United States v. Perkins, 116 U.S. 483, 485 (1886). Although Ms. Slaughter was serving in a position created by Congress, the Court in Slaughter held that she was a “principal officer,” thus Congress’s imposition of a restriction on her removal was unconstitutional.
In the blog, however, we focused on the fate of numerous individuals who were fired under Article II before Slaughter. While all of these individuals were defined in the Civil Service Reform Act as competitive, excepted, and career Senior Executive Service “employees,” and therefore entitled to notice of the specific reasons for their removal, an opportunity to respond, and an appeal to the MSPB when they were terminated, none was given an opportunity to respond, and if they were given any information about an appeal, such an appeal was described only as “if applicable.” We also discussed the combined appeals of Jackler and Jaroch, two Supervisory Immigration Judges who were removed pursuant to Article II. The Board held that while they qualified as “employees” under the CSRA, their positions as immigration judges made them inferior officers who exercise significant adjudicative and policymaking authorities on behalf of the United States. As a result, they were not protected by the CSRA and lacked the ability to appeal to the MSPB. Both employees sought review of that decision in the U.S. Court of Appeals for the Federal Circuit, which quickly agreed to review the Board’s decision on an expedited basis. It is possible that the Court’s decision will be confined to those who serve as immigration judges who, contrary to the Board’s decision, lack any policymaking authority and whose decisions are subject to reversal by the Board of Immigration Appeals. Under Arthrex, such judges are entitled to due process.
The Federal Circuit’s decision, however, may leave unresolved the status of the other employees who were removed under Article II. At least two of those employees initially appealed to the Board, but when the government initially argued the Board lacked jurisdiction over their appeals, they filed suit in U.S. District Court. The two are Maurene Comey, a career excepted service Assistant U.S. Attorney in Manhattan, and Mary Comans, the Chief Financial Officer at FEMA and a career member of the SES. Both were entitled to, but denied, due process under the CSRA. (While FEMA gave Ms. Comans no reason for her removal, officials made public statements accusing her of financial wrongdoing.) In both cases, the government argued – inconsistently with their earlier arguments — that the only remedy available to the employees was to the MSPB.
Although the cases were filed separately in two jurisdictions, Ms. Comey in New York and Ms. Comans in Virginia, the judges in both cases held that the government could not have it both ways: ignoring the CSRA when removing the employees but insisting that their only remedy was under the CSRA. The judges’ decisions relied upon the distinction between “principal officers” and “inferior officers,” and both cited Perkins. While Comey was decided before Slaughter, the decision in Comans was issued on July 21, 2026, and relied on both Slaughter and Perkins to forcefully reject the government’s arguments:
The Court recognizes that recently . . . the President’s Article II power to remove the principal officer leaders of independent agencies has reached a high-water mark. Trump v. Slaughter, 609 U.S. __, 2026 WL 1855612 (June 29, 2026). Slaughter, however, had nothing to say about inferior officers or the Perkins line of cases, and this Court must exercise great caution in translating principles from one context into another without clear direction. Instead, judicial restraint requires this Court to apply the law as it stands. And the law does not permit Defendants to fire Plaintiff, nor to publicly denigrate her in conjunction with that action, without due process.
Comans v. Exec. Off. of the President, et al., slip op. at 2 (July 21, 2026).
The government has already appealed both the Comey and Comans decisions, and if the appeals decisions affirm the lower courts, the government will no doubt ask the Supreme Court for review. The Federal Circuit’s decision in Jackler/Jaroch will not be issued until the Fall, at the earliest, and it may be limited to the immigration judge position at issue in the case. For the moment, however, the fate of the career civil service appears somewhat more secure, though not guaranteed.