The Referee Problem — Preview

By Michael D. Baker

The Supreme Court told the country whom the President may fire. It refused to say where the firing stops. Trump v. Slaughter, No. 25–332 (June 29, 2026), took the heads of the independent agencies and handed them to the President — removable at will, for any reason, for no reason. I wrote about that decision, and its quiet pairing with presidential immunity, in my last post. The question every lawyer asked me the day it issued was the next one down: does this reach the whole bureaucracy? The two million career employees? The asylum officer across the interview table? The immigration judge on the bench?

The answer has two halves, and you need both. The holding stops at the top. The logic stops nowhere. And the machine that decides which half wins is already running — not in some antitrust dispute in Washington, but in a case about two fired immigration judges, now sitting before the full Federal Circuit. The doctrine came down through my corner of the law. This post follows it down.

👥 Two Letters, One Sentence Each

Meet the test cases before you meet the test.

On February 14, 2025, the Justice Department ended two careers by letter. Megan Jackler and Brandon Jaroch served as Assistant Chief Immigration Judges in the Executive Office for Immigration Review — appointed in 2021, converted to permanent positions in 2023, both veterans of the armed forces. The letters carried no charge. No notice. No hearing. They cited a single authority for the firings, and it was not a statute and it was not cause. It was Article II of the Constitution — the Constitution itself, offered as a pink slip.

Congress had written these two a shield. The Civil Service Reform Act says the government removes a career employee “only for such cause as will promote the efficiency of the service,” 5 U. S. C. §7513, with notice, with a chance to respond, with appeal to the Merit Systems Protection Board. The Department did not argue it met that standard. It argued the standard could not constitutionally bind it. Hold that move in your mind. The rest of this post is about whether it works.

And one more person belongs in this story, because she is the one my clients actually meet. Not long ago I sat beside a client in an asylum interview here in Chicago — a woman who left a country where the police took her husband and never gave him back. Across the table sat the asylum officer: careful, prepared, patient with the interpreter. A civil servant. A GS-grade employee of USCIS, inside the Department of Homeland Security, doing the quiet daily work of deciding who receives protection under the laws of the United States. Every word in this post is ultimately about whether that officer decides my client’s case under the law — or under the eye of whoever holds the switch above her.

🛠️ The Three Tiers

Removal doctrine sorts the executive branch into three boxes, and everything turns on which box holds the person you care about.

A principal officer exercises significant authority under federal law and answers to no supervisor short of the President — cabinet secretaries, agency heads, Senate-confirmed commissioners. An inferior officer also wields significant authority — the test comes from Buckley v. Valeo, 424 U. S. 1 (1976) — but works under the direction of a principal officer; administrative law judges are the classic modern example, per Lucia v. SEC, 585 U. S. 237 (2018). And below both sit the employees — the civil service, roughly two million careers, the asylum officers and adjudicators and examiners who are not constitutional “officers” at all. The Appointments Clause never touches them. Their shield is statutory: the Civil Service Reform Act, enforced by the MSPB.

So answer the question everyone asked. Can the President lawfully fire the asylum officer today, for no reason? No. She is an employee. Slaughter‘s holding never reaches her, and the Civil Service Reform Act still stands. But read the rest of the table. The bottom row survives on paper — and the paper is only as strong as the referee who enforces it. Watch what happened to the referee.

🚫 What the Court Would Not Say

Start with the hole in the opinion, because the hole is doing more work than the holding.

Before June 29, the law recognized two safe harbors against at-will removal — the Court itself catalogued them in Seila Law v. CFPB, 591 U. S. 197 (2020). First: multimember expert bodies that did not wield substantial executive power — the Humphrey’s Executor harbor. Second: inferior officers with limited duties — the harbor built by United States v. Perkins in 1886 and reaffirmed in Morrison v. Olson, 487 U. S. 654 (1988). One hundred forty years of law.

Slaughter demolished the first harbor. Fine — that was the question presented, and the Court answered it. Here is what the Court did not do, and I want you to sit with how little analysis a decision this large actually contains. The majority never defined what level of executive power costs an official his protection. It never mentioned the second harbor — Perkins, Morrison, the inferior officers — at all. Not to preserve it. Not to overrule it. Not one word. And it said nothing about the civil service statutes that shield two million employees. A Court rewired the executive branch and declined to publish the wiring diagram.

Justice Sotomayor named it from the bench. The ruling, she warned in dissent, carries “major implications for inferior officers and civil-service employees, which the majority studiously ignores.” Studiously. That word accuses, and it should. The best reading of Slaughter stops at principal officers — commissioners, agency heads, people like Rebecca Slaughter. But the majority wrote its rule in language that runs to anyone who “exercise[s] any executive power,” and then refused to say where the language stops. When a court removes the ceiling and will not look at the floor, everyone below the ceiling gets to argue about the floor. The administration started arguing the next morning. Actually — it started earlier than that. It started in February of 2025, and it started with immigration judges.

⚖️ Case One: Slaughter Takes the Top

You know this one from my last post, so I state it in three sentences. The Court overruled Humphrey’s Executor v. United States, 295 U. S. 602 (1935), and held the FTC’s for-cause removal clause unconstitutional: the President removes principal officers at will, and Congress cannot condition the removal on cause. The Fed survived on a historical carveout the dissents are already circling. And the majority left every question below the principal-officer line unanswered — on purpose.

📌 Case Two: The Board Takes the Middle — and Takes Itself Off the Field

Now watch the doctrine travel. Jackler and Jaroch Consolidation v. Department of Justice, 2026 MSPB 3 (Mar. 20, 2026).

Jackler and Jaroch appealed their firings to the MSPB, the tribunal Congress built in 1978 to referee exactly this. An administrative judge heard the case in August 2025 and ruled for them: the Department gave them none of the process §7513 requires, so reinstate them. Then the Justice Department’s Office of Legal Counsel issued an opinion declaring the firings constitutional and instructing that MSPB judges must adjudicate the government’s constitutional defenses. And in March 2026, the full Board — two members, both from the President’s party — reversed. It did two things, and the second is worse than the first.

First, it held that immigration judges are inferior officers whom the Attorney General removes at will, the Civil Service Reform Act notwithstanding. The Board reasoned that their duties — administering oaths, taking evidence, issuing subpoenas, deciding removability — mirror the SEC administrative law judges the Supreme Court called officers in Lucia. Then it hung the removal conclusion on a single half-sentence of dictum from Seila Law describing Perkins as protecting inferior officers “with limited duties and no policymaking or administrative authority” — and read that stray phrase to strip protection from any inferior officer whose duties exceed it. One hundred forty years of Perkins, cabined by half a sentence written about somebody else.

Second — and here the floor drops — the Board held it lacks jurisdiction to intervene when an agency cites constitutional authority for a firing. For decades the Board refused to entertain constitutional attacks on its own governing statute. It reversed that position in a handful of paragraphs. The Board dressed the move carefully: it entertains only “as-applied” constitutional arguments, it insists nobody asked it to strike the CSRA outright, and it promises to decide these questions position by position. Take the dressing off. A tribunal that surrenders jurisdiction one position at a time surrenders it all the same — retail instead of wholesale — and the retail line is already moving: in May the Board applied 2026 MSPB 3 to another fired DOJ adjudicator, finding he held a “materially identical position” and “no basis to distinguish” the precedent. Employment lawyers called the jurisdictional reversal a complete about-face, and they are right to be alarmed: the Board just handed every agency in the government a magic word. Write “Article II” on the termination letter, describe the position, and the referee announces he cannot see the play.

🔥 Case Three: The Federal Circuit Steps In

Jackler and Jaroch appealed to the U.S. Court of Appeals for the Federal Circuit, and the court did something it almost never does: it granted initial hearing en banc — the full bench, no three-judge panel first — and expedited the case, with new briefing due July 14. Jackler v. DOJ, No. 26-1575 (Fed. Cir. June 17, 2026) — order granting initial hearing en banc. Courts reserve that treatment for questions that will govern everything behind them. This one will. Since 2025 the administration has run hundreds of “Article II firings” through the Justice Department alone — immigration judges, career lawyers, prosecutors from disfavored cases — and Jackler and Jaroch’s own attorneys told the court this appeal is the tip of the iceberg. Six senators filed as amici warning that the Board’s theory, left standing, strips Congress of the power to protect any inferior officer — a rule that defies 140 years of Supreme Court precedent. Federal employee unions joined. So did the professional association of the MSPB’s own workforce — the referee’s staff, filing against the referee’s ruling.

The appellants’ core argument deserves your attention because it is correct. Perkins held in 1886 that when Congress vests appointment of an inferior officer in a department head, Congress may limit and regulate the removal. Morrison reaffirmed it a century later. The Board escaped both by promoting a descriptive half-sentence in Seila Law — a case about a principal officer — into a new two-tier rule for inferior officers that no court has ever adopted. That is not doctrine. That is a fortune cookie read as a statute. But understand what the Board was actually doing: it was standing where Slaughter‘s silence left room to stand. The Supreme Court declined to say the rule stops at principal officers, so the Board kept walking.

📌 The Synthesis: The Referee Problem

Put the three cases in one frame and the picture assembles itself. The asylum officer’s shield is a statute. A statute is only as strong as its enforcer. Her enforcer is the MSPB. And the MSPB’s own members held for-cause protection under a statute materially identical to the FTC clause that Slaughter just killed — which means the President now removes, at will, for no reason, with no judicial review of his motive, the very adjudicators who decide whether his other firings were lawful. The Board that surrendered its jurisdiction in Jackler did not misread the moment. It read the moment perfectly. A statutory right enforced by a captured tribunal is a right written on water.

This is the same architecture I showed you in the last post, one level down. There, the immunity decision cut the wire between the removal power and the courthouse. Here, Slaughter cuts the wire between the civil servant and her tribunal. The pattern does not vary: the shield survives; the arm holding it goes limp. Hamilton warned that the mere “suspicion” of dependence corrodes an institution from within. The asylum officer across the table from my client does not need to be fired to be governed by the fear of it. She reads the news. She knows what happened to a hundred immigration judges. She adjudicates with one eye on the door — and my client’s case gets decided in that room.

🔥 The Fatal Flaws

Four of them, strongest first.

1. The referee works for the other side

   Every protection in this story funnels through one tribunal, and Slaughter handed that tribunal to the President. MSPB members now serve at will. The Board has already relinquished jurisdiction over constitutional firings, already blessed the immigration-judge terminations, already inverted decades of its own precedent in a few paragraphs. You do not need to repeal the Civil Service Reform Act if you own the body that enforces it. The statute becomes a museum piece — behind glass, technically intact, touching nothing.

2. Half a sentence of dictum is carrying 140 years

   The Board’s entire removal theory rests on a passing characterization in Seila Law — “limited duties and no policymaking or administrative authority” — deployed against Perkins and Morrison, the actual holdings, the actual law. A tribunal that wants a result badly enough will find it in a subordinate clause. If the Federal Circuit ratifies the method, every stray phrase in every removal opinion becomes a demolition charge, and Slaughter is full of stray phrases.

3. Too powerful to protect, too lowly to respect

   Watch what the Board had to say to get there. To push immigration judges past the Seila Law threshold, it declared that they exercise “significant policymaking authority” — that their decisions carry “a major impact on a significant area of the nation’s domestic and foreign policy,” that they wield “vast administrative authority.” Now read that finding from inside my courtroom. The same Department that tells the Federal Circuit these judges are too consequential for Congress to insulate tells respondents every day that they are line adjudicators executing the Attorney General’s policy — reviewable, overrulable, bound by his certifications. Both cannot be true. If immigration judges genuinely shape the nation’s foreign policy, due process demands more independence for the people in front of them, not less. The government wants the power for the firing and the humility for the docket. Make them pick one — on the record, in your next case.

4. Silence is an invitation

   The Slaughter majority had the chance to draw the line — one sentence preserving Perkins, one sentence about the civil service — and chose not to. Sotomayor asked them to, from the bench. They studiously declined. When the most powerful court in the country announces a rule reaching anyone who exercises “any executive power” and refuses to name a limit, it does not matter what the best reading is. Litigants act on the broadest reading, agencies act on the broadest reading, and captured tribunals ratify the broadest reading. The narrow reading exists only in law reviews. The broad reading fired two judges.

5. He does not need to fire her to own her

   Even if the Federal Circuit holds the line, the pressure routes around it. Reclassification schemes strip “policy-influencing” positions out of civil-service protection wholesale. Reductions in force eliminate the position instead of the person. And above every asylum officer sits a chain of at-will supervisors — USCIS Director, DHS Secretary — whom the President always removed freely and now removes without even a norm to slow him. Control the chain, chill the base. The corrosion never requires a single unlawful firing.

🇺🇸 The Same Fourteen Words: Kavanaugh’s Needle

Now the other question readers keep asking me, because the answer got harder, not easier, after Trump v. Barbara, No. 25–365 (June 30, 2026). Justice Kavanaugh voted to strike the birthright-citizenship order — and rejected the constitutional holding in the same breath. Lawyers I respect tell me they cannot follow the move. Follow it with me, step by step, because it is worse than it looks, and you cannot see how much worse until you see how it works.

Step one. Two laws grant the same citizenship. The Fourteenth Amendment grants it. And Congress granted it again, by statute — 8 U. S. C. §1401(a), first enacted in 1940 and recodified in 1952 — repeating the Amendment nearly word for word: a person “born in the United States, and subject to the jurisdiction thereof” is a citizen at birth. The same fourteen operative words. Two documents. Belt and suspenders.

Step two. The Executive Order had to survive both, and an order that violates either one dies. An executive order sits below an Act of Congress; the President cannot repeal a statute by memo. So Kavanaugh kills the order with the statute alone — §1401(a) grants these children citizenship, the order denies it, the statute wins — and never opens the Constitution at all. That is his entire vote.

Step three — the trick. How does one Justice read the identical fourteen words broadly in the statute and narrowly in the Amendment? One doctrine does it: statutory stare decisis. United States v. Wong Kim Ark, 169 U. S. 649 (1898), fixed the broad meaning of “subject to the jurisdiction thereof.” Congress then wrote §1401(a) with Wong Kim Ark on the books — so Congress adopted the settled meaning into the statute, and eighty years of congressional silence ratified it. The Court treats settled statutory interpretations as nearly untouchable, because Congress can fix a statute any Tuesday it wants. Constitutional interpretations get weaker protection — only the Court can correct those, so the Court corrects them more freely. Kavanaugh’s position, spelled out: Congress locked Wong Kim Ark into the statute. The Amendment stays open, and I would reopen it. The same words carry two meanings because one document belongs to Congress and the other belongs to five Justices.

Step four. Why did nobody join him? Count the readings. The five in the majority read the fourteen words broadly in both documents — they never need his statute. The three dissenters read the fourteen words narrowly in both documents — so for them the statutory twin fails too, and his rescue collapses. Kavanaugh stands alone as the only Justice reading the same phrase two ways in two laws. Eight Justices are consistent. One threads a needle. Nobody joins a needle.

The Hypothetical: One Girl, Two Doors

Abstractions hide stakes, so take a person. A girl is born at a Chicago hospital in March 2027. Her parents came from Guatemala without status; they work, they pay taxes, they have no papers. Walk her through both doors.

Read the two doors together and you see the fourteen words cutting in both directions at once. In the statute, the words protect her — today, tomorrow, until Congress acts — and Kavanaugh enforces that protection sincerely. In the Amendment, on his reading, the identical words abandon her. Same phrase. Opposite work. The only variable is which branch owns the document — and behind door two, the girl’s citizenship belongs to whichever party owns the branch.

Now the part that makes it worse than a lone concurrence. Kavanaugh did not merely vote; he published the amendment instructions — Congress “could — consistent with the Fourteenth Amendment — amend §1401(a) or otherwise enact new legislation establishing exceptions.” The President endorsed the roadmap from the podium that same afternoon. Four other Justices would read the Amendment narrowly today. And Slaughter just handed the executive undivided command of the machinery that whips statutes through Congress. The Fourteenth Amendment exists because the men of 1868 refused to leave citizenship to statutes — they had watched what Congresses and Courts did with it, and they buried Dred Scott where no majority could dig it up. Kavanaugh’s needle, threaded one seat further, digs it up. He does not amend the Constitution by statute. He shrinks the Constitution until the statute is all that is left — and statutes belong to whoever won the last election. That is the separation-of-powers offense hiding inside the technically coherent opinion, and coherence makes it more dangerous, not less. An incoherent opinion persuades no one. This one is a kit.

🚩 What This Means Where I Practice

🔍 What To Do Now

1. Read Jackler and Jaroch Consolidation v. Department of Justice, 2026 MSPB 3, this week, and calendar the Federal Circuit fight — No. 26-1575 (Fed. Cir.), en banc briefing resumes July 14, 2026. Whoever loses goes to the Supreme Court, and that cert petition is where Slaughter‘s silence finally gets a definition.
2. Raise and preserve structural impartiality objections in removal proceedings now — not after the Federal Circuit rules. Appellate courts reward the lawyers who built the record early.
3. Watch the MSPB’s docket for the next “Article II” jurisdiction surrender. Each one widens the class of employees whose statutory rights have no working enforcer — and maps where the administration pushes next.
4. Watch reclassification. If asylum officers or refugee officers get swept into any “policy-influencing” schedule, the bottom tier of the table above flips from paper protection to no protection, and no court ruling is required.

⚖️ The Verdict

The question of the summer was whether Slaughter reaches the whole bureaucracy. Wrong question. The holding never had to reach the bureaucracy, because the enforcement machinery got there first. The President cannot lawfully fire the asylum officer today — and the tribunal that would say so has already announced it will not look. The shield hangs on the wall, polished and useless, while the arm that held it signs whatever the letter says.

Two cases will tell us how far this goes, and both sit one level from the top. The Federal Circuit, en banc, decides whether Perkins and 140 years of law survive a half-sentence of dictum — whether the middle tier holds. And somewhere behind it, one Supreme Court seat decides whether a girl born in Chicago holds her country by constitutional right or by statutory sufferance. The immigration bar is not watching these fights from the gallery. Our judges are the test plaintiffs. Our clients’ children are the hypothetical. The fight is in our courtrooms now. Fight it there.