Dem senators boost effort to reinstate two immigration judges

A half dozen Democratic senators this week urged a federal appeals court in Washington to expedite its consideration of two immigration judges’ appeal of their ouster last year, after a quasi-judicial agency said they could be removed at will.

Last month, the Merit Systems Protection Board upended decades of precedent when it ruled that the president had Article II constitutional authority to remove inferior officers like immigration judges on an at-will basis.

But in their appeal to the U.S. Court of Appeals for the Federal Circuit, Megan Jackler and Brandon Jaroch, who were both fired by then-Attorney General Pam Bondi in February 2025, said that MSPB’s decision mistakenly relied on “dictum,” a legal term for portions of a judge’s writing that is made in passing and not relevant to the actual decision, in Seila Law v. Consumer Financial Protection Bureau, a case invalidating removal protections of principal officers. Unlike the judges in this case, SEC administrative law judges are considered principal officers, due to their lack of a direct supervisor between them and the president.

“The crux of [MSPB’s] decision rests on a half-sentence of dictum from Seila Law, in which the Supreme Court characterized its prior precedent as having permitted for-cause removal protections for those inferior officers 'with limited duties and no policymaking or administrative authority,’” they wrote. “According to the MSPB, that half-sentence radically cabined [U.S. v. Perkins] and its progeny to a small subset of civil servants. It bears emphasis: the MSPB’s test for Article II firings—that the [1978 Civil Service Reform Act] may apply only to those with ‘limited duties’—will have enormous ramifications.”

The two former immigration judges have asked the circuit court as a whole to hear their case, rather than the traditional three-judge panel. Like the legal challenge to President Trump’s International Emergency Economic Powers Act tariffs, which the Federal Circuit heard en banc last year and the Supreme Court invalidated in February, the judges’ case is the first of many such lawsuits, as administration officials’ citation of “Article II” as sole justification for employee removals last year was widespread.

“This appeal is the tip of the iceberg,” attorneys for the fired judges wrote. “The executive branch has fired numerous other civil servants like petitioners, including as many as 100 immigration judges, employees previously assigned to Special Counsel Jack Smith, and prosecutors who handled January 6 cases. The abuses have been egregious: In July 2025, the government fired a career prosecutor apparently because she is the daughter of [former FBI Director Robert Mueller], whom the president views as a vocal critic.”

In a filing Monday, six Senate Democrats—Sens. Chris Van Hollen, Md., Tim Kaine and Mark Warner, both Va., Gary Peters, Mich., and Andy Kim, N.J.—lent their support to the judges’ request. They argued that the MSPB ruling effectively usurps Congress’ authority to insulate inferior officers from political interference.

“The Merit Systems Protection Board’s decision poses serious consequences for the constitutional systems of separation of powers and checks and balances, and it will affect thousands of federal workers, many of whom are constituents of amici,” they wrote. “The board’s decision, if left standing, would subvert the constitutional authority of the Congress to enact any legislation governing inferior officers in the executive branch. This defies over 140 years of Supreme Court precedent and gives the president unchecked authority to take any action regarding inferior officers, constrained only by the few express limitations stated in the Constitution.”

If the court agrees, that means the case would be heard by all 11 active judges on the Federal Circuit bench. A three-judge panel has not yet been assigned.