Shadow Docket Irony and Executive Control Over First Amendment Rights

There is a certain asynchronous irony about today's shadow docket per curiam opinion.  The United States Supreme Court decided Margolin v. National Association of Immigration Judges  (No. 26-767) without full briefing and without oral argument. In its unsigned opinion, the Supreme Court reversed the Fourth Circuit on the grounds that the circuit court rendered an en banc decision on an issue not squarely presented by the parties. The issue was whether the Civil Service Reform Act (CSRA) was intended by Congress to require First Amendment, thus constitutional, claims to be presented to an administrative agency – in this case, the Merit Systems Protection Board (MSPB) – rather than to the courts. 

The Supreme Court tacitly, and the concurrence by Justice Thomas joined by Barrett expressly, agreed with the Solicitor General who filed the Petition for Certiorari and Ted Cruz and fellow Senators in their Amici Curiae brief.  The Fourth Circuit’s concern was that the MSPB had been coopted by the president.  It was acknowledged that “the President removed the Special Counsel” and “two

members of the MSPB.”  It was also true that the Fourth Circuit did not decide anything other than that the case should be remanded for further fact-finding to consider whether the MSPB was functioning as Congress intended under the CSRA.

Nevertheless, the Court held that the constitutional rights of administrative law judges to speak in limited circumstances about encroachments on their independence by the executive branch would be decided by the executive branch's own review board and not by the courts. Given the Court's intermittent penchant for acknowledging the president's unitary executive theory while also resisting the Chevron doctrine of deference to administrative decisions, it is hard to develop a broader jurisprudential view of what happened here. 

The bottom line is that Immigration Law judges can object to the policies of the president only if the president’s coopted administrative agency approves.