In today’s news and commentary, the MSPB finds removal protections applied to Immigration Judges unconstitutional, and ICE agents are deployed to US airports amid long security lines.

On Friday, the Merit Systems Protection Board (MSPB) issued a precedential decision finding removal protections unconstitutional as applied to Immigration Judges (IJs). The case involved two IJs fired by the Attorney General last February. After their firings, the IJs took their case to the MSPB, arguing that as federal employees under 5 U.S.C. § 7511, they were entitled to certain pre-termination procedures under 5 U.S.C. § 7513(b). Because the Department of Justice (DOJ) did not provide those procedures, an administrative law judge ordered the IJs restored to employment. The DOJ then appealed to the Board, which heard the case in a two-judge panel, reversing the ALJ’s decision. Technically, the panel held that the MSPB did not have jurisdiction over the case, but a step on the way to that holding was its finding that “[t]he Constitution abrogates the application of section 7513 to inferior officers such as [Immigration Judges].” As the panel explained, the “default rule” under Supreme Court precedent is that Congress (and the MSPB) cannot place restrictions on the President’s ability to remove inferior officers—with the exception of those with limited duties and no policymaking or administrative authority. It then found that IJs are inferior officers and that they do not fit into the exception because they have significant duties including policymaking and administrative authority (making “final decisions of the United States” with a “major impact on a significant area of our nation’s domestic and foreign policy”). The case is currently being appealed to the U.S. Court of Appeals for the Federal Circuit, but in the meantime the decision is a boon to Trump and could embolden his administration to fire more federal employees without cause.

Meanwhile, ICE agents will be deployed in US airports today in a hastily planned attempt to aid the TSA. As Gurtaran and Finlay have previously covered, the partial government shutdown has meant TSA officers haven’t been paid for five weeks now, resulting in more than 400 officers quitting and thousands not showing up to work. Trump announced his new idea Saturday with administration officials seemingly struggling to catch up. Tom Homan, the White House border czar, said that “it’s a work in progress” but promised to “have a plan by the end of today,” adding that “his opinion” was that ICE would concentrate on airports with long security lines: “When we deploy them more, we’ll have a well-thought-out plan to execute.” Homan suggested that ICE agents could cover the exits, freeing up TSA agents to do more screenings. Homan and Transportation Secretary Sean Duffy seemed to hold opposing ideas of whether ICE agents could run X-ray machines. American Federation of Government Employees (AFGE) president Everett Kelly lambasted the plan, arguing that “putting untrained personnel at security checkpoints does not fill a gap. It creates one.” Kelly put the focus back on TSA officers, who “deserve to be paid, not replaced by untrained, armed agents who have shown how dangerous they can be.” Mike Gayzagian, president of AFGE Local 2617 and a TSA officer himself, said the ICE agents were not likely to be of much practical help in any case. Johnny Jones, secretary-treasurer with AFGE and also a TSA officer, said deploying ICE would make airports less safe and that it would be insulting to place paid ICE agents beside unpaid TSA officers.