WASHINGTON, D.C. (E&E News) — President Donald Trump may have another path to downsize the federal workforce thanks to a decision by an independent agency meant to shield the civil service.
The Merit Systems Protection Board issued a ruling last week on the Justice Department’s termination of two immigration judges, Brandon Jaroch and Megan Jackler. The board’s opinion accepted an argument by the Trump administration that the attorney general has constitutional authority to fire certain employees and thus the board itself no longer has jurisdiction over their appeals.
The ruling could further erode job protections not just for employees at Justice but workers across the government if their own agencies make similar claims before the board.
“It opens the door for more employees to be removed at will without having due process rights,” Michael Fallings, a managing partner at law firm Tully Rinckey, said about the MSPB ruling. “The president could determine who he can fire and who he cannot.”
The board considered whether the judges fired in 2025 were “inferior officers” who lack job protections, according to a Supreme Court decision during Trump’s first term. Yet the opinion — drafted by the board’s two Republican members, Henry Kerner and James Woodruff — said the president’s power under the Constitution to manage the executive branch meant he could fire the immigration judges in question.
The board said the judges were “inferior officers who exercise significant adjudicative and policymaking authorities on behalf of the United States.”
“We hold that the Attorney General’s exercise of constitutional Article II removal authority in relation to these appellants … abrogates otherwise-applicable statutory removal protections and thus deprives the Board of jurisdiction,” the opinion said.
The decision overturns a MSPB administrative judge who ruled last August for the two judges to be reinstated to their jobs. The administration then appealed that decision to the board itself.
On Monday, lawyers for the fired judges announced they had filed their own appeal to the U.S. Court of Appeals for the Federal Circuit. Nathaniel Zelinsky, a senior counsel with the Washington Litigation Group, said in a statement the board’s ruling was “a massive power grab” by the administration.
“The board’s decision is dead wrong and contradicts more than a century of binding Supreme Court precedent, dating to the 1800s,” Zelinsky said.
Fallings, an expert in federal employment law, compared the board’s ruling to an Office of Personnel Management regulation finalized earlier this month that would make it easier to fire federal employees. Under the rule known as Schedule Policy/Career, the president can reclassify policy-influencing career staffers as at will and strip them of workplace safeguards.
