inferior officers | The Insightful Immigration Blog

In a previous blog, excerpted here, we analyzed Walmart, Inc. v. Jean King, which involved a challenged by Walmart to the administrative proceedings against it for violations of immigration-related recordkeeping requirements on the ground that the proceedings were “being conducted by an administrative law judge (“ALJ”) who is unconstitutionally shielded from the President’s supervision. ALJs like Jean King, who was presiding over the proceedings against Walmart and is the Chief Judge within the Office of the Chief Administrative Hearing Officer (OCAHO), can be removed from their position only for “good cause” as determined by the Merits System Protection Board (MSPB) and by the president for “only for inefficiency, neglect of duty, or malfeasance in office”. Walmart alleged that this system violates the Constitution by insulating ALJs “from presidential control by two levels of removal protection”. Walmart argued that Article II of the Constitution, which commands the President to “take Care that the Laws be faithfully executed”, requires him to have the power to remove executive officers. Only two types of officers have been determined to be exempt from the President’s removal power – principal officers, who report directly to the President, and inferior officers, who are appointed by the President but supervised by others. See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); United States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021). Walmart argued that ALJs do not within either of these exceptions, “so the removal scheme that protects them is unconstitutional twice over”. Chief Justice J. Randal Hall of the United States District Court for the Southern District of Georgia agreed with Walmart and granted its motion for summary judgement, finding that “the multilevel protection from removal present for the OCAHO ALJs is contrary to Article II, and contrary to the executive power of the President.”

The federal government appealed this finding, and the US Court of Appeals for the Eleventh Circuit heard in the case on Friday, June 6. Attorney Jeff Johnson, representing Walmart, argued that the statutory defect invalidates ALJs’ authority, stating: “I’m saying when you bake in an unseverable removal restriction, that takes away their power to act just as much.” The government, on the other hand, stated that it would not defend the constitutionality of the removal provisions for ALJs, but, at the same time, argued that ALJs should still be left with the authority to penalize Walmart and other employers in enforcement proceedings. Joshua Salzman, attorney for the government, stated:

“Here they are saying all I-9 enforcement has to stop unless and until Congress is able to act. And it’s not just I-9 enforcement — that actually wildly understates the stakes of the potential implications of their argument”, noting the wide range of administrative proceedings over which ALJs preside.

[…]

“I could go on and on and on…but the logic of the district court’s opinion here is, all of it stops unless and until Congress amends the statute.”

The Supreme Court has previously held that two types of officers have been determined to be exempt from the President’s removal power – principal officers, who report directly to the President, and inferior officers, who are appointed by the President but supervised by others. See Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); United States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021). As it stands, ALJs may not fall within either of these categories. Even if they are considered inferior officers, because they cannot be easily removed, their appointment may still be unconstitutional. If the court can sever only the problematic removability clause from the statutory provision giving authority to ALJs, perhaps ALJs can be interpreted to be constitutionally appointed. The 11th Circuit panel indicated that if the government was unwilling to defend the constitutionality of the removal provisions, it would appoint a third party to take up the defense of those protections’ constitutionality. “The court can’t simply accept the government’s concession of unconstitutionality without evaluating the issue for itself,” they said.

It is noteworthy that the administration has refused to defend the constitutionality of the removal procedures of ALJs. Earlier in February 2025, Acting Director Sirce Owen of the Executive Office for Immigration Review (EOIR) issued Policy Memorandum (PM) 25-23 stating that, in the context of any future personnel actions and after additional review, EOIR may decline to recognize the multiple layers of for-cause removal restrictions for all of EOIR’s inferior officers if they are determined to be unconstitutional. If the government is unwilling to defend the statute regarding the removal procedures for ALJs, and the court cannot remedy it, then Congress should step in to amend it. Although it is easy to assume that Congress is in a logjam and is not capable of intervening, it should nonetheless do its job and act. Otherwise, the ALJ system should be dismantled and judges who are not constitutionally appointed should have no authority to sanction employers. The government cannot have its cake and it it too!

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

By Cyrus D Mehta and Kaitlyn Box*

Acting Director Sirce Owen of the Executive Office for Immigration Review (EOIR) issued Policy Memorandum (PM) 25-23 stating that, in the context of any future personnel actions and after additional review, EOIR may decline to recognize the multiple layers of for-cause removal restrictions for all of EOIR’s inferior officers if they are determined to be unconstitutional.

The EOIR Policy Memorandum followed shortly after the Department of Justice (DOJ) notified Congress of its conclusion that the multiple layers of removal restrictions for Administrative Law Judges (ALJs) are unconstitutional and that it will no longer defend those restrictions in litigation. The DOJ press release states:

Today the Department of Justice determined that multiple layers of removal restrictions shielding administrative law judges (ALJs) are unconstitutional.

Unelected and constitutionally unaccountable ALJs have exercised immense power for far too long. In accordance with Supreme Court precedent, the Department is restoring constitutional accountability so that Executive Branch officials answer to the President and to the people.

The Policy Memorandum applies this policy not just to EOIR’s ALJs within the Office of the Chief Administrative Hearing Offer but to all of EOIR’s inferior officers which includes all Immigration Judges, members of the Board of Immigration Appeals , all ALJs, the Chief Administrative Hearing Officer, the General Counsel and the Assistant Director of Policy. Inferior officers are recognized in Article II of the US Constitution as officers who are directed by a principal officer, who in turn is appointed by the President with the advice and consent of the Senate.

The Policy Memorandum is striking because it recognizes that all inferior officers in the EOIR may be constitutionally infirm because they cannot be easily removed by the President. Would this open up challenges to the validity of ALJs and the Immigration Court system?

In Walmart v. Jean King, which we have commented on in a prior blog, a federal court granted Walmart’s motion for summary judgment to halt an administrative proceeding against the company for violations of immigration-related recordkeeping requirements because they were conducted by an administrative law judge (“ALJ”) who was unconstitutionally shielded from the President’s supervision. ALJs can be removed from their position only for “good cause” as determined by the Merits System Protection Board (MSPB) and by the president “only for inefficiency, neglect of duty, or malfeasance in office”. See 5 U.S.C. sections 1202(d) and 7513(a), 7543(a). Walmart alleged that this system violated the Constitution by insulating ALJs “from presidential control by two levels of removal protection”. Walmart argued that Article II of the Constitution, which commands the President to “take Care that the Laws be faithfully executed”, requires him to have the power to remove executive officers.

If Walmart was successful in blocking an ALJ from ruling against it for I-9 violations, can a similar argument be made that IJs are also subject to for-cause removal restrictions and render them and the Immigration Court system invalid? In Fortunato de Jesus Amador Duenas v. Garland, the Ninth Circuit rejected an argument that the removal process for IJs violates Article II. The Court reasoned that the Attorney General (AG), who supervises IJs, enjoys the unrestricted authority to remove them at his discretion.

Now Ms. Owen’s Policy Memorandum clearly acknowledges that IJs, ALJs and other inferior officers are subject to removal restrictions, and as their positions may be unconstitutional, can a plaintiff like Walmart invalidate the Immigration Court? On the other hand, the Policy Memorandum cites Collins v. Yellen, which held that actions taken by properly appointed constitutional officers are not void absent a showing of harm, even if those officers are subject to unconstitutional removal restrictions. Ms. Owens, relying on Collins v. Yellen, states accordingly that “even if an inferior officer’s removal restrictions are determined to be invalid, EOIR will generally continue to recommend defending that officer’s official actions absent a showing of harm connected to the restriction themselves.” This raises the possibility that if it can be shown that there was a notorious IJ or BIA member, a plaintiff could demonstrate that the president (more than likely President Biden) could have fired him or her. But in Collins v. Yellen, the plaintiff sought to invalidate an action of the agency director because he was unconstitutionally subject to removal restrictions, and the Supreme Court held the action to be valid because the director was still properly appointed. However, in Walmart v. Jean King the court held that the ALJ proceeding was invalid as the ALJ was subject to unconstitutional removal restrictions, as has now been affirmed in the Policy Memorandum. Walmart was broadly attacking the legitimacy of the ALJ to impose a fine and succeeded.

Collins v. Yellen also suggests a possible opening for invalidating a decision:

That does not necessarily mean, however, that the shareholders have no entitlement to retrospective relief. Although an unconstitutional provision is never really part of the body of governing law (because the Constitution automatically displaces any conflicting statutory provision from the moment of the provision’s enactment), it is still possible for an unconstitutional provision to inflict compensable harm. And the possibility that the unconstitutional restriction on the President’s power to remove a Director of the FHFA could have such an effect cannot be ruled out. Suppose, for example, that the President had attempted to remove a Director but was prevented from doing so by a lower court decision holding that he did not have “cause” for removal. Or suppose that the President had made a public statement expressing displeasure with actions taken by a Director and had asserted that he would remove the Director if the statute did not stand in the way. In those situations, the statutory provision would clearly cause harm.

Can a future plaintiff thus claim that all EOIR officers identified by Ms. Owens in the Policy Memorandum are constitutionally infirm? Notably, the district court in in Walmart did not cite Collins. Attempting to utilize the Policy Memorandum to challenge removal proceedings or the immigration court system more broadly could be challenging in light of 8 USC 1252(b)(9):

“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.”

A challenge to removal proceedings would thus have to go through the petition for review process, and would be limited by Collins unless one can show harm was suffered through the removal restriction itself. Walmart involved administrative proceedings against a company for alleged I-9 violations, not removal proceedings, and so this issue was averted. Thus, the Policy Memorandum may not provide a viable pathway for attacking the entire immigration court system. However, a removal decision can still be challenged through a petition for review. The policy memorandum may also provide an enhanced basis for challenging administrative proceedings against employers decided by ALJs, like those at issue in Walmart.

By acknowledging that there are unconstitutional removal restrictions for all inferior officers within the EOIR, the Policy Memorandum may pave the way for more claims to invalidate proceedings against ALJs and also against IJs in limited circumstances. At the same time, officers within the EOIR will have less job security as EOIR may decline to recognize removal restrictions if they are determined to be unconstitutional.

*Kaitlyn Box is a Partner at Cyrus D. Mehta & Partners PLLC.

The authors thank David Isaacson for his assistance and insights for this blog.