Recently, the MSPB dismissed a terminated Immigration Judge’s appeal..

Recently, the MSPB dismissed a terminated Immigration Judge’s appeal on the basis that IJs have policy-influencing powers, are “inferior officers” under Article II, and are thus terminable at will despite statutory limits on the President’s removal power. This was MSPB’s big step into the Unitary Executive Theory before SCOTUS does so, or draws clear lines between Principal Officers, Inferior Officers, and employees.*In December, another IJ, Tania Nemer, sued in Federal District Court after filing an EEO complaint for her termination on February 5, 2025, during her probationary period. The supervisor who fired Nemer didn’t say why she was being fired. Nemer claims that she had good performance ratings. The notice only cited “Article II” as its basis.

Nemer, who had run for a local judgeship on a Democratic party ticket, claims that her termination was on the grounds of sex and national origin, in violation of Title VII. She also alleges that she was terminated for her partisan political affiliation and activities, in violation of the First Amendment.

(Terminating a probationary employee for partisan political affiliation violates the Merit System Principles in 5 USC 2302, but partisan political affiliation isn’t a protected category under Title VII).

The buried lede is that EEOC has also moved us toward a Unitary Monarchy. It cited Article II as its basis for refusing to investigate Nemer’s complaint. I’ve seen no discussion of this case online, but it’s also likely to reach SCOTUS, if by a different path. By statute, MSPB appeals go to the Federal Circuit, while EEO complaints go to federal district court, (in this district) the D.C. Circuit, and then SCOTUS. The administration has drawn favorable emergency panels at the D.C. Circuit recently, which have stayed rulings against the President’s “unitary executive” power.

The case is Nemer v. Bondi, 1:25-cv-04170 (D.D.C. 2025), https://lnkd.in/ecn88GUe

This case adds weight to my argument that if Congress wants to protect civil servants and adjudicatory bodies from political purges and patronage, it should give careful consideration to the language of Article II’s Inferior Officers Clause:

“[T]he 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.”

By giving the President appointment powers over immigration judges, Congress also gave him removal power. It tried to limit that power to reasons based on performance and misconduct, but SCOTUS is clearly leaning toward an all-or-nothing approach to what the Solicitor General calls a “headless fourth branch.” Congress should consider re-vesting more appointment powers over ALJs and AJs in the Article III courts, perhaps as special magistrate judges.

* For a strong hint about where SCOTUS will draw those lines, see this case: https://lnkd.in/eBx9p7Ew