Since early 2025, innumerable career federal employees have been fired without warning, without charges, and without being told they have the right to appeal, all justified by a single phrase: “Pursuant to Article II,” meaning the asserted power of the president to ignore those protections and fire government workers at will. Whether that justification holds up under the law will soon be decided by the full U.S. Court of Appeals for the Federal Circuit, sitting en banc. Based on current law, the career civil service should remain protected from raw presidential power, as it has been for well over a century. In United States v. Perkins, 116 U.S. 483, 485 (1886), the Supreme Court held that “the constitutional authority in Congress to vest the appointment [of inferior officers] implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.”

The law at the center of this dispute, the Civil Service Reform Act of 1978 (CSRA), created the civil service job protections that federal employees know today: 30 days’ advance notice of a proposed action, including specific charges of the deficient performance or misconduct; the right to respond and to appeal an adverse decision to the Merit Systems Protection Board (MSPB), where they are entitled to a hearing before an independent administrative judge, followed ordinarily by an appeal to the full Board; with the right to seek review of an unfavorable Board decision in the U.S. Court of Appeals for the Federal Circuit.

The Constitution’s Fifth Amendment requires the U.S. government to provide “due process” before it deprives a person of life, liberty or property. The courts have decided that the CSRA, by precluding the firing of federal career employees except “for cause,” has given them a “legitimate claim of entitlement,” or a “property interest,” in their jobs. Accordingly, they are entitled to “notice and opportunity to be heard” — the classic due process formulation — before they can be deprived of their jobs or pay. These procedures have only been strengthened over the decades, and are acceptable as settled law.

Until now: Shortly after President Donald Trump began his second term, federal agencies began firing large numbers of career employees who had been working, for example, as attorneys, as immigration judges, in DEI offices and in the Senior Executive Service (SES). These terminations had several notable features in common: 1) None of the fired employees were accused of misconduct or other “cause” for their firing; 2) they were fired effective immediately, with no advance warning; 3) they were told only that they may have a right to appeal to the MSPB, “if applicable”; and 4) the sole “explanation” for their firing in each of these cases was “pursuant to Article II” — the president’s asserted power to fire any executive branch employee at will.

Among the hundreds of career federal employees who suffered these “Article II” terminations were Megan Jackler and Brandon Jaroch, two supervisory immigration judges employed by the Justice Department, who were fired without warning on Feb. 14, 2025. Their removal letters stated they “may have a right to file an appeal” with the MSPB, and they did so. The government argued the administrative judge lacked jurisdiction because Article II removals weren’t addressed in the CRSA. The administrative judge disagreed, and ruled that 1) he had jurisdiction; 2) the agency had violated the employees’ due process rights; and 3) they should be reinstated with back pay. Other Article II appeals were paused pending the Board’s ruling on jurisdiction.

Among the appeals pending before the Board were those of Maurene Comey, assistant U.S. attorney in Manhattan who, as the daughter of former FBI Director James Comey, argued in part that her removal was part of President Trump’s retribution campaign against her father, and Mary Comans, who served in the SES as chief financial officer at the Federal Emergency Management Agency. Both had been fired “pursuant to Article II” and both appealed to the MSPB. Rather than wait for the MSPB to act, however, Comans and Comey each filed suit in federal district court months before the Board ruled in Jackler and Jaroch. In March, the full MSPB ruled that, although Jackler and Jaroch qualified as employees under the CSRA, they were inferior officers who exercised significant adjudicative and policymaking authority. It concluded that Article II precluded application of the CSRA’s removal protections to them and therefore held that it lacked jurisdiction over their appeals, which it dismissed.

Jackler and Jaroch appealed the Board’s decision, and the Federal Circuit has agreed to hear the case en banc. En banc review, reserved for cases of exceptional importance or to resolve conflicting precedent within the circuit, means the Federal Circuit will decide definitively whether CSRA-covered employees may challenge Article II removals through the MSPB. That ruling will directly affect the Comey and Comans federal lawsuits as well, since both assume the MSPB can’t provide relief. In April, in opinions issued less than two weeks apart, the judges in the Comey and Comans cases held that only the courts, and not the MSPB, could decide the legality of so-called Article II removals. The judges’ analyses are virtually identical.

The government’s position in court contained a logical contradiction: It argued both that Comey and Comans were CSRA “employees,” making the CSRA-provided MSPB recourse their exclusive route to challenge the firings, and that Article II nevertheless gave the president power to fire them and ignore the CSRA’s for-cause job protections altogether. The district courts rejected that logic. In both cases, the judges held that by relying solely on Article II, the government placed these terminations structurally outside the CSRA’s coverage scheme, leaving the fired employees not just free but obliged to bring their challenges as federal civil lawsuits.

Judge Jesse Furman highlighted the flaws in the government’s argument: “[A]s far as the Court can tell, when enacting the CSRA, Congress did not consider ‘Article II removals’ of career civil servants because they were not a thing” (Comey v. U.S. Dept. of Justice, No. 25-CV-7625, slip op. at 15 (S.D.N.Y. Apr. 28, 2026)). He was right historically, too; no administration before this one has ever invoked Article II to justify firing an employee explicitly covered by the CSRA.

While the MSPB may grant relief to Article II removal victims, it has not yet done so; the district courts, by contrast, have found such removals fall outside the CRSA and are the proper forum. Supreme Court precedent, however, suggests the CSRA’s procedures are both exclusive and mandatory. The Supreme Court has repeatedly held that when Congress creates specific procedures for federal employees to challenge personnel actions, those procedures are the employees’ only recourse. The high court has kept to this basic idea, even when the fired individual or the personnel action at issue fell outside the statute’s coverage.

Assuming the Federal Circuit promptly orders the Board to hear these appeals, there are several possible outcomes. First, if the Board decides the merits under the CSRA, the firings likely cannot be sustained, since the employees, who received no notice or opportunity to respond, were fired illegally. Second, if the Board rejects the due process claims, those employees will be able to bring those claims to federal district court, as Comey and Comans did. Unless the Supreme Court decides to the contrary, it appears likely that most, if not all, of the federal employees who were fired or demoted “under Article II” will be able to regain their positions if they timely appealed. What we cannot predict is the rationale that will get us there, because the jurisdictional conundrum we’ve tried to describe has no easy resolution. It’s possible that the Supreme Court will hold the removals unconstitutional or, perhaps to avoid a confrontation with the Trump administration on the issue, will allow the conflict to stand until this presidency is over and the problem recedes for political reasons.

On June 29, the Supreme Court issued a decision confirming that the president could fire Rebecca Slaughter, a Federal Trade Commission commissioner, even though the law creating the Commission allows removal only “for cause,” a protection the Court held unconstitutional under Article II. The Court did not say in the decision that it also applied to regular civil service employees; in fact, it did not even mention the CSRA or any of its protections. And on July 17, Judge Michael Nachmanoff in Virginia agreed in the Comans case, ruling from the bench that, while Slaughter applied to “principal officers,” Perkins still protected inferior officers until the Supreme Court rules to the contrary.

That means that for now, the CSRA and its job protections remain the law of the land. One way or another, however, the Federal Circuit’s decision in Jackler/Jaroch will reach the Supreme Court. If the Court ultimately endorses this administration’s actions for all employees as a matter of unitary executive theory, the entire CSRA will be invalidated. That outcome would not only shatter a century of court precedent, but would destroy the non-political civil service itself, a 130-year-old hallmark of American government. It would return federal government employment to the rules that existed prior to 1883: the spoils system the Pendleton Act was passed to abolish.

George Chuzi and Steve Pershing are attorneys at Kalijarvi, Chuzi, Newman & Fitch, P.C.

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