DOJ Employees Need a Clear Answer on the Constitutionality of Their Firings
Justice Connection filed its latest amicus brief in a case that could determine the constitutionality of the statute that protects the employment rights of roughly two million federal employees.
The case – Jackler v. Department of Justice, currently pending in the U.S. Court of Appeals for the Federal Circuit – may determine whether the President has the power to terminate the employment of federal employees without notice or a merit-based reason, despite decades-old laws that prevent this from happening.
Plaintiffs Megan Jackler and Brandon Jaroch are among the more than 100 immigration judges DOJ leadership has fired without any due process. After an administrative judge ordered DOJ to reinstate Judges Jackler and Jaroch, the full Merit Systems Protection Board reversed that decision – ruling that the President’s authority under Article II of the Constitution invalidates the Civil Service Reform Act’s (CSRA) protections against their removal.
The ramifications of this decision are profound.
For the first time, the Board ruled that the President has unfettered discretion to terminate the employment of countless career civil service workers – effectively invalidating statutory protections in effect since 1978, and federal civil service principles that have been in place for about 150 years. The Board adopted the government’s shocking argument that these employees got “all the pretermination process they were due: none.”
The upshot of such a conclusion? Many civil servants can be fired for being registered as a Republican or a Democrat, or because of their race, gender, disability, or religion. They can be fired because of who they’re related to, or who they’re friends with. Or they can be fired for no reason at all.
At stake is the future of a government powered by experts in their fields instead of loyalists. Congress passed the CRSA and early civil service protections because the country wanted to move away from the spoils system of the 19th century – where hiring was based on patronage instead of merit, and corruption and inefficiency ran rampant. An adverse decision in this case could largely return us to that system, and away from the professional, apolitical civil service that’s helped our country thrive.
Judges Jaroch and Jackler appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit. Justice Connection’s brief highlights the importance of having the full court review the decision en banc from the outset, rather than waiting for a decision from a panel of judges.
En banc review is essential because the Court’s decision on this appeal will affect the employment of far more than two immigration judges. Justice Connection has been tracking the number and nature of terminations at DOJ, and we’ve found that Department leadership relied on only Article II to fire more than 150 career employees. The administration has made similar Article II terminations at other agencies, including DHS and HHS.
Getting a uniform answer on such an extraordinary constitutional question is crucial. But if this appeal goes before a panel for review, the many other challenges to these terminations may end up before other panels of the Federal Circuit, or even panels of other courts of appeals and district courts if cases also involve claims of discrimination or whistleblower retaliation. En banc review would provide a conclusive determination from the entire court, promoting judicial economy and avoiding unnecessary uncertainty.
The Board’s decision eradicated protections for career employees built on more than a century of precedent. A patchwork of panel decisions on its heels would serve no one’s interests. The terminated career employees and the public that relies on a competent, nonpartisan civil service deserve a clear answer – and they deserve it as quickly as possible. As Justice Connection argues in our brief, en banc review would help achieve that.
