Guest Post: The MSPB and the Constitution

by Brian Lipshutz

[Brian Lipshutz is a Harry A. Bigelow Teaching Fellow and Lecturer in Law at the University of Chicago.]

On Friday, the Merit Systems Protection Board held that statutory removal protections for immigration judges violated Article II on an as-applied basis. The merits issue is high-profile. But this post will examine why the MSPB’s threshold determination that it has power to decide the challenge is only half-right. The MSPB did have the power to reach the constitutional issue, despite the IJs’ objections. But the MSPB continues to unpersuasively limit its power to decide other constitutional challenges. As I discuss in a forthcoming article, federal agencies can—and should—address all constitutional challenges to statutory provisions.

The MSPB, like most agencies, has long limited its power to address constitutional challenges. The MSPB’s predecessor, the Civil Service Commission, did so in 1943 without explanation.[1] In 1955, the CSC called that limitation “too well recognized to require citations.”[2] The MSPB adhered to that position after its creation, although it has carved out exceptions for “as-applied” arguments regarding particular actions. As recently as March 2024, the MSPB declined to consider a challenge to the constitutionality of an administrative judge’s removal protections because it implicated the protections of all MSPB administrative judges.

The decision last week in Jackler v. Department of Justice weakly distinguishes the 2024 decision. The MSPB reasoned that DOJ “argues only that the specific nature of the [IJs’] positions and duties elevate them to a status where these protections cannot constitutionally be applied to them.” By contrast, the MSPB wrote, the 2024 challenger “argu[ed] that the statutory removal protections provided to Board administrative judges made its entire adjudication structure constitutionally deficient.” But in both cases, the challenge depended on statutory and regulatory provisions that apply to an entire category of officers.

Either way, there should be no need for these fine-grained distinctions. As this decision illustrates, agencies can interpret the Constitution. As it further illustrates, agencies can then decline to act within the full scope of what a statute would otherwise permit them to do. And the only practical difference between an “as-applied” and a “facial” holding seems to be that the MSPB and lower-level adjudicators will have to re-decide the issue in every case that comes before them.

That piecemeal approach defeats one of the fundamental purposes of having agency adjudication at all. Unlike courts, agencies are not limited by justiciability doctrines and other restraints on Article III courts. They instead have the ability to systematically address legal questions in their area of administrative responsibility. Doing so creates greater predictability for regulated parties and lower-level adjudicators, on constitutional issues no less than statutory ones.

Some might have concerns about allowing MSPB members to adjudicate the constitutionality of limitations on the president who appointed them. But as the course of this litigation is likely to confirm, judicial review will often be available. The MSPB’s decision is a final agency action subject to review in the Federal Circuit. If the Federal Circuit agrees with the MSPB, the IJs can petition the Supreme Court for certiorari. And Supreme Court review is meaningfully more likely when a statute has been held unconstitutional.

In fact, if the concern is preventing executive abuse, it seems preferable for agencies to address all constitutional challenges. Most cases raising constitutional challenges restrict executive power. For instance, individuals (including civil servants) often raise First Amendment, due process, Seventh Amendment, or other arguments. Moreover, the government will almost always have the resources and incentive to litigate these cases on an as-applied basis, but individual civil servants and other private parties may not.

Finally, in an administration that purports to follow the original meaning of the Constitution, the continued refusal to decide some challenges is puzzling. Many originalists recognize that the president generally has a power and duty to disregard unconstitutional statutes. If agencies also exercise executive power and take an oath to the Constitution, it seems to follow that they have the same power and duty. Indeed, some agencies took exactly that view in the late nineteenth and early twentieth centuries. It was only the Interstate Commerce Commission that appears to have established a contrary consensus in the early twentieth century. Originalists in agencies might take a future opportunity to return to first principles and decide all constitutional challenges to statutes, whether broad or narrow in scope.

[1] In the Matter of Herbert C. Bright, 2 P.A.R. 65, 66 (Civ. Serv. Comm’n 1943).

[2] In the Matter of Curtis C. Wilson, 5 P. & F. (2d) 247, 249 (Civ. Serv. Comm’n 1955).