The Merit Systems Protection Board's Authority to Adjudicate Constitutional Questions within an Administrative Proceeding

(Slip Opinion)

The Merit Systems Protection Board’s Authority to

Adjudicate Constitutional Questions within an

Administrative Proceeding

Administrative judges of the Merit Systems Protection Board adjudicating removal-

related appeals brought by certain federal employees must resolve the constitutional

arguments raised by the Executive Branch.

September 26, 2025

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

Since January 20, 2025, the heads of a number of executive depart-

ments and agencies (“Agencies”) have removed certain officers and

employees within their Agencies in furtherance of the President’s duty to

“take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3;

see also id. § 1, cl. 1 (vesting “[t]he executive Power” in the President

alone). A subset of those employees appealed to the Merit Systems Pro-

tection Board (“MSPB” or “Board”) pursuant to the Civil Service Reform

Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111. Their appeals are current-

ly pending before administrative judges. You have asked whether MSPB

administrative judges are empowered and obligated to consider constitu-

tional issues raised by the Agencies during these proceedings. We con-

clude that they are and that they must therefore resolve the Agencies’

constitutional arguments.

To date, you have not asked us to address—and we do not opine on—

the merits of any question currently pending before the administrative

judges about whether Congress has limited (or even could limit) the

ability of officers of the United States to terminate employees when

necessary to fulfill the President’s obligation to “take Care that the Laws

be faithfully executed.” U.S. Const. art. II, § 3.

I.

The Civil Service Reform Act (“Act”) forms “‘a comprehensive system

for reviewing personnel action taken against federal employees.’” Elgin v.

Dep’t of the Treas., 567 U.S. 1, 5 (2012) (quoting United States v. Fausto,

484 U.S. 439, 455 (1988)). It applies to the “removal” of an employee

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49 Op. O.L.C. __ (Sept. 26, 2025)

from his position, 5 U.S.C. § 7512(1), 1 provides that an agency may

remove an employee “only for such cause as will promote the efficiency

of the service,” id. § 7513(a), and authorizes employees against whom

action is taken to appeal to the MSPB, id. § 7513(d).

The MSPB may hear an appeal itself or may “refer the case to an ad-

ministrative law judge.” Id. § 7701(b)(1). A decision of an administrative

judge generally “shall be final” unless (1) the Board “reopens and recon-

siders a case on its own motion” or (2) “a party to the appeal or the Direc-

tor [of the Office of Personnel Management] petitions the Board for

review within 30 days after the receipt of the decision.” Id. § 7701(e)(1);

see 5 C.F.R. § 1201.113 (explaining the “initial decision of the judge will

become the Board’s final decision 35 days after issuance” except as

otherwise provided). Depending upon the basis for its action, the “deci-

sion of the [employing] agency shall be sustained . . . only if the agency’s

decision” is “supported by substantial evidence” or “a preponderance of

the evidence.” 5 U.S.C. § 7701(c)(1). Conversely, “the agency’s decision

may not be sustained” if the employee shows (1) “harmful error in the

application of the agency’s procedures in arriving at such decision,”

(2) “the decision was based on any prohibited personnel practice,” or

(3) “the decision was not in accordance with law.” Id. § 7701(c)(2).

A final decision of the MSPB may be appealed to the U.S. Court of

Appeals for the Federal Circuit. 5 U.S.C. § 7703(b)(1); 28 U.S.C.

§ 1295(a)(9); see Helman v. Dep’t of Veterans Affs., 856 F.3d 920, 926

(Fed. Cir. 2017). An employing agency may, however, only obtain review

of an MSPB decision with the intervention of the Office of Personnel

Management (“OPM”). See 5 U.S.C. § 7703(a), (d); see also Horner v.

MSPB, 815 F.2d 668, 671 (Fed. Cir. 1987) (explaining “OPM has been

given a statutory right to seek judicial review of any final order or decision

of the board” following a determination by the Director of OPM); Dir. of

OPM v. Moulton, No. 2024-109, 2024 WL 1953955, at *1 (Fed. Cir.

May 3, 2024) (explaining the Federal Circuit has discretion “whether to

1 Because Congress has expressly defined “employee,” 5 U.S.C. § 7511(a)(1), “‘we

must follow that definition,’ even if it varies from [the] term’s ordinary meaning,” Digital

Realty Tr., Inc. v. Somers, 583 U.S. 149, 160 (2018) (quoting Burgess v. United States,

553 U.S. 124, 130 (2008)). We do not, however, take a position on whether any individual

who has challenged his termination would be considered an employee or an officer in the

constitutional sense.

2

MSPB’s Authority to Adjudicate Constitutional Issues

permit OPM’s petition for review”); Implementing or Challenging Initial

Decisions, MSPB, https://www.mspb.gov/studies/adverse_action_report/

18_implementingorchallenging.htm (last visited Sep. 26, 2025) (explaining

“the agency cannot appeal directly to the Federal Circuit at any stage”).

Although the MSPB must have “jurisdiction over the underlying agency

action” to entertain any appeal, Hubbard v. MSPB, 319 F. App’x 912, 914

(Fed. Cir. 2009), “[t]here is no question but that the [Act] provides the

exclusive remedy for an alleged constitutional violation . . . arising out of

federal employment,” Richards v. Kiernan, 461 F.3d 880, 885 (7th Cir.

2006) (citations omitted). Federal employees must appeal “exclusively

through the statutory review scheme, even in cases in which the employees

raise constitutional challenges to federal statutes.” Elgin, 567 U.S. at 10–

12; see also Axon Enter., Inc. v. FTC, 598 U.S. 175, 189, 195 (2023)

(distinguishing challenges to a “specific substantive decision” such as

“firing an employee” from constitutional challenges “to the structure or

very existence of an agency”). 2 And with one exception not relevant here,

the availability of review under the Act turns not upon the “type of claim”

but rather upon “the type of civil service employee and adverse employ-

ment action at issue.” Elgin, 567 U.S. at 12–13.

Here the Agencies do not present a structural challenge to the MSPB or

its administrative judges. Instead, they argue that the removals at issue

were lawful under Article II given the functions performed by the specific

employees at issue in the underlying cases. As a general matter, the Agen-

cies justify the terminations based upon the President’s powers—arising

from the Vesting and Take Care Clauses of Article II—to remove those

who wield executive power on his behalf. The precise contours of the

Agencies’ arguments differ to some extent based upon the case and the

role of the terminated employee. For example, we understand the Agen-

cies argue in some cases that the terminated employees were inferior

officers for constitutional purposes and could therefore be removed with-

out cause. In others, the Agencies argue that the terminated employees

were removable at-will under Article II because they were exercising core

2 See also 1 Peter Broida, A Guide to Merit Systems Protection Board Law and Prac-

tice 345–48 (36th ed. 2019) (explaining that “the Board does not have jurisdiction over

[a] constitutional claim unless it also has jurisdiction over the action taken against the

employee,” summarizing MSPB precedent regarding the review of constitutional issues,

and discussing Elgin).

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49 Op. O.L.C. __ (Sept. 26, 2025)

executive functions such as engaging in criminal prosecution. And in

each, the Agencies contend that the statutory provisions relevant to those

employees should be construed to avoid serious constitutional questions,

or they otherwise cannot be applied to preclude the personnel action at

issue consistent with the Constitution. You have asked whether the MSPB

administrative judges must adjudicate these constitutional issues.

II.

Given the comprehensiveness of the Act’s regime, it should come as no

surprise that the MSPB takes the view that it can “adjudicate a constitu-

tional challenge to an agency’s application of a statute.” Special Counsel v.

Jackson, 119 M.S.P.R. 175, 179 (2013) (citing May v. OPM, 38 M.S.P.R.

534, 538 (1988)). And its precedent reflects that the MSPB does “routine-

ly adjudicate[] some constitutional claims.” Elgin, 567 U.S. at 12 (collect-

ing cases). 3 We agree with the MSPB’s practice of routinely reviewing

many constitutional issues and similarly conclude that where, as here, a

constitutional issue is material to the employing agency’s employment

decision, the MSPB must resolve it. Its authority and duty to address these

constitutional issues follows from the text of the Act, and its regulations

confirm the same.

First, the Act makes clear that the scope of the MSPB’s review in-

cludes the interpretation of law. The Act requires the MSPB to adjudicate

“the decision of the agency,” 5 U.S.C. § 7701(c)(1), and instructs the

MSPB not to sustain “the [employing] agency’s decision” if, among other

reasons, “the decision was not in accordance with law,” id. § 7701(c)(2)(C)

(emphasis added). To adjudicate an appeal consistent with the statute,

then, an administrative judge must “analyze all material issues of fact and

law” and not “simply announce that he will not consider” arguments that

he “deems unworthy of consideration.” Broida, supra note 2, at 1491

3 See also May v. OPM, 38 M.S.P.R. 534, 538 (1988) (due process); Special Counsel v.

Murry, No. CB-1216-15-0002-T-1, 2015 WL 6688194 (M.S.P.B. Nov. 3, 2015) (due

process and equal protection); Bain v. OPM, 49 M.S.P.R. 307, 313 (1991) (equal protec-

tion); Brooks v. OPM, 59 M.S.P.R. 207, 215 n.7 (1993), superseded by statute (equal

protection); Hatley v. Dep’t of the Navy, 164 F.3d 602, 603–04 (Fed. Cir. 1998) (Fourth

Amendment); Fuller v. Dep’t of the Navy, 465 F. App’x 949, 950 (Fed. Cir. 2012) (refer-

ring to the administrative judge’s disposition of constitutional claims).

4

MSPB’s Authority to Adjudicate Constitutional Issues

(collecting cases); see, e.g., Smart v. Dep’t of the Army, 105 M.S.P.R.

475, 481 (2007).

It is true, of course, that section 7701 of title 5 never explicitly refer-

ences the Constitution. So one might argue that Congress’s use of the word

“law” refers only to statutory law—as distinct from agency rules or regula-

tions—and excludes constitutional law. Indeed, some statutes seem to

draw a distinction between the Constitution and other law. E.g., 42 U.S.C.

§ 1983 (referring to “the deprivation of any rights, privileges, or immuni-

ties secured by the Constitution and laws” of the United States); 18 U.S.C.

§ 242 (referring to “the Constitution or laws of the United States”).

But we think the implication runs the other way here: That section 7701

does not set the Constitution apart from “law” means the Constitution is

presumptively included within the meaning of the term. That is because

the Constitution is “the supreme Law of the Land,” U.S. Const. art. VI,

and therefore falls within the ordinary meaning of the “law.” Consistent

with that understanding, the Supreme Court has long held that the Presi-

dent’s duty to “take Care that the Laws be faithfully executed,” id. art. II,

§ 3, includes the Constitution itself, In re Neagle, 135 U.S. 1, 63–64

(1890); see Presidential Power to Use the Armed Forces Abroad Without

Statutory Authorization, 4A Op. O.L.C. 185, 186 & n.4 (1980); cf. Wil-

liam Howard Taft, The Presidency: Its Duties, Its Powers, Its Opportuni-

ties and Its Limitations 70 (1916) (“The laws that [the President] must

take care shall be faithfully executed are not confined to acts of Con-

gress.”). And in other contexts, too, the Supreme Court has understood the

word “law” to include the Constitution. See, e.g., Anniston Mfg. Co. v.

Davis, 301 U.S. 337, 346 (1937) (construing the statutory phrase “in

accordance with law” to encompass “all questions of general and statutory

law and all constitutional questions”); Lockerty v. Phillips, 319 U.S. 182,

188–89 (1943) (similar); Oklahoma v. U.S. Civ. Serv. Comm’n, 330 U.S.

127, 135 (1947) (similar).

Our conclusion is reinforced by the broader statutory context, which

provides “a comprehensive system for reviewing personnel action taken

against federal employees.” Elgin, 567 U.S. at 5 (quoting Fausto, 484

U.S. at 455); see 5 U.S.C. § 7701(c)(2) (instructing the MSPB not to

“sustain[]” the employing agency’s decision if it “was not in accordance

with law”). We think it unlikely that Congress intended to insulate uncon-

stitutional agency action from the MSPB’s review. Indeed, the Act uses

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49 Op. O.L.C. __ (Sept. 26, 2025)

the same phrase—without reference to the Constitution—when providing

for review by the Federal Circuit. See id. § 7703(c) (instructing the court

to “set aside any agency action” that is “not in accordance with law”).

And the Federal Circuit has authority to “consider and decide” constitu-

tional issues. Elgin, 567 U.S. at 21; see Briggs v. MSPB, 331 F.3d 1307,

1311 (Fed. Cir. 2003) (explaining constitutional challenges “implicate the

‘otherwise not in accordance with law’ aspect of [the Federal Circuit’s]

standard of review”). It would make little sense to read “law” in section

7701(c)(2)(C) as excluding the Constitution when “law” includes the

Constitution just two provisions later.

We also think it unlikely that Congress intended to forbid the MSPB’s

review of material constitutional issues since the Act empowers the

MSPB to perform statutory interpretation, which often necessarily impli-

cates constitutional analysis. See, e.g., 5 U.S.C. § 7701(d)(2) (requiring

the MSPB to “notify the Director [of OPM] whenever the interpretation of

any civil service law, rule, or regulation . . . is at issue in any proceed-

ing”); id. § 7701(d)(1)(B) (allowing the Director to intervene in the

MSPB’s proceeding if he “is of the opinion that an erroneous decision

would have a substantial impact on any civil service law, rule, or regula-

tion”); id. § 7703(d)(1), (2) (authorizing the Director to file a petition with

the appropriate court of appeals if, among other things, he “determines . . .

that the Board erred in interpreting a civil service law, rule, or regula-

tion”). That is because the “unconstitutionality canon maintains that when

one interpretation of a statute would render it unconstitutional, the court

should adopt any plausible interpretation that would save it.” Amy Coney

Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109,

138 (2010); see, e.g., Religious Restrictions on Capital Financing for

Historically Black Colleges and Universities, 43 Op. O.L.C. 191, 209

(2019) (concluding that certain statutory “restrictions can and must be

construed to avoid unconstitutionality”). Adjudicators generally should

adopt not only a saving construction but, where possible, one that would

“avoid serious constitutional questions.” Administration of the John F.

Kennedy Centennial Commission, 41 Op. O.L.C. 1, 3 (2017); see also

Jennings v. Rodriguez, 583 U.S. 281, 286 (2018) (explaining that “when

statutory language is susceptible of multiple interpretations, a court may

shun an interpretation that raises serious constitutional doubts and instead

may adopt an alternative that avoids those problems”); Whether Eluding

6

MSPB’s Authority to Adjudicate Constitutional Issues

Inspection Under 8 U.S.C. § 1325(a)(2) Is a Continuing Offense, 49 Op.

O.L.C. __, at *12 (June 21, 2025) (applying the avoidance canon to “con-

firm” an interpretation of a statute).

To construe the Act as authorizing the MSPB to consider constitutional

arguments—but only when performing statutory interpretation—would be

to adopt an “excessively strained interpretation of [a] statute.” Nguyen v.

United States, 539 U.S. 69, 75–76 (2003). The better inference is that

Congress did not prohibit the MSPB from considering constitutional

issues material to the employment decision in any appeal over which it

has jurisdiction. And, in any event, certain of the Agencies’ constitutional

arguments here are grounded in constitutional avoidance, so the MSPB

must consider those constitutional arguments when construing the under-

lying statutes.

Second, the MSPB’s regulations confirm that administrative judges can-

not dodge constitutional issues presented by the Agencies. Those regula-

tions require an initial decision to contain “[f]indings of fact and conclu-

sions of law upon all the material issues of fact and law presented on

the record,” along with “[t]he reasons or bases for those findings and

conclusions.” 5 C.F.R. § 1201.111(b)(1)–(2) (emphasis added). This re-

quirement ensures that every issue relevant to the employing agency’s

decision is addressed at the outset of the administrative appeals process.

The MSPB most frequently applies this principle when the administrative

judge fails to consider an affirmative defense raised by the appellant

employee. See, e.g., Edgeston v. U.S. Postal Serv., 1 M.S.P.R. 300, 301

(1980). But the “appellant is not the only party entitled to a complete

decision,” and “[t]he Board will set aside a decision favoring an appellant

if the [administrative judge] did not completely analyze all the charges

against him.” Broida, supra note 2, at 1493 (citing Burton v. Veterans

Affs., 35 M.S.P.R. 52, 54 (1987)). To adjudicate all material issues in a

given case, as required by the Act and the MSPB’s regulations, the Board

must decide any constitutional issue that is material to the employing

agency’s decision.

In short, the MSPB has broad authority to consider legal issues—

statutory and constitutional—that arise while adjudicating appeals that are

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49 Op. O.L.C. __ (Sept. 26, 2025)

properly before it. 4 And it is obliged to do so where, as here, a constitu-

tional issue is material to the “decision of the agency.” 5 U.S.C.

§ 7701(c)(1); see also 5 C.F.R. § 1201.111(b)(1)–(2).

III.

We have identified three primary counterarguments for why the admin-

istrative judges here should be excused from addressing the constitutional

questions squarely presented to it. None changes our conclusion.

First, some might argue that the Act, which works to protect employees

from improper dismissal, is designed to provide for a comprehensive

review of constitutional questions raised by employees, but not by the

employing agencies. This argument lacks foundation in the text of the

Act. In addition, the MSPB has treated the question of reviewability as

one of jurisdiction. May, 38 M.S.P.R. at 536, 538. “Jurisdiction means the

right to say and the power to act; and, as between agencies of the govern-

ment, jurisdiction is the power of that particular agency to administer and

enforce the law.” Carroll Vocational Inst. v. United States, 211 F.2d 539,

540 (5th Cir. 1954); see also Rodriguez v. Cnty. of Los Angeles, 891 F.3d

776, 791 (9th Cir. 2018) (similar). Either the MSPB (and any administra-

tive judge to which it delegates authority) has the jurisdiction to address a

constitutional question—irrespective of which party raised it—or it does

not.

Second, some could argue that the MSPB, as an agency, cannot decide

the constitutional arguments here because, in their view, agencies general-

ly may not declare a statute unconstitutional. Although the MSPB consid-

ers many constitutional issues, it has “repeatedly refused to pass upon the

constitutionality of legislation” by invoking “the oft-stated principle” that

agencies are presumed to be unable to “declare a statute unconstitutional.”

Elgin, 567 U.S. at 16–17 (declining to “decide whether the MSPB’s view

of its power is correct”). 5 Because this principle is justified by an assump-

4 As explained in Part III of this opinion, we need not—and therefore do not—decide

here whether the MSPB may adjudicate constitutional claims challenging “the structure or

very existence of an agency.” Axon, 598 U.S. at 189.

5 See, e.g., Davis-Clewis v. Dep’t of Veterans Affs., No. DA-0752-23-0162-I-1, 2024

WL 1209225, at *3 (M.S.P.B. Mar. 20, 2024) (considering an Appointments Clause

challenge to statutory removal protection for MSPB administrative judges); Special

8

MSPB’s Authority to Adjudicate Constitutional Issues

tion of “legislative intent,” 3 Kenneth Davis, Administrative Law Treatise

§ 20.04, at 74 (1958); see, e.g., In re Jordan, 1 M.S.P.B. 74, 86 (1979)

(citing the same), Congress could overcome that presumption by “com-

mit[ting] to administrative agencies the power to determine” the “consti-

tutionality of legislation,” 3 Davis, Administrative Law Treatise § 20.04,

at 74. Since Congress has amended the Act on several occasions without

displacing the MSPB’s interpretation, some might characterize Congress’s

silence as acquiescence. See Cent. Bank of Denver v. First Interstate Bank

of Denver, 511 U.S. 164, 186 (1994).

We doubt, however, that Congress intended to ratify the MSPB’s views

given intervening decisions of the Supreme Court that cut in the other

direction. On at least two occasions since 1990, the Supreme Court has

emphasized that the principle that agencies cannot declare a statute un-

constitutional “is not mandatory.” Thunder Basin Coal Co. v. Reich,

510 U.S. 200, 201 (1994); Elgin, 567 U.S. at 16–17 (same). These state-

ments are in tension with the view that agencies lack the power to adjudi-

cate certain constitutional issues. Indeed, recent scholarship has docu-

mented the “long history” of agencies “engaging with constitutional

questions.” Yonatan Gelblum, The Myth that Agency Adjudications Can-

not Address Constitutional Claims, 32 Geo. Mason L. Rev. 223, 243–45,

255–56 (2025); see also James Buchwalter et al., 73 C.J.S. Public Admin-

istrative Law and Procedure § 181 (2025). True, “agency adjudications

are generally ill suited to address structural challenges” to their own

enabling acts. Carr v. Saul, 593 U.S. 83, 92 (2021) (citations omitted).

But an agency’s “intimate familiarity with the statutes and regulations it

administers” may make it particularly well suited to address most other

constitutional questions—even where such challenges could be made by a

large group of individual plaintiffs. Gelblum, 32 Geo. Mason L. Rev. at

290–91.

Counsel v. Gallagher, 44 M.S.P.R. 57, 73 (1990) (considering an equal protection and due

process challenge to the difference in treatment between federal and state employees in

the Hatch Act); Bayly v. OPM, 42 M.S.P.R. 524, 525–26 (1990) (considering an equal

protection challenge to statutory provisions related to annuity benefits); Malone v. DOJ,

14 M.S.P.R. 403, 406 (1983) (considering a constitutional challenge to a statutory veteran

retention preference); Brown v. Dep’t of Transp., 15 M.S.P.R. 617, 622 (1983) (consider-

ing a constitutional challenge to “statutes pertaining to striking by Federal employees”).

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49 Op. O.L.C. __ (Sept. 26, 2025)

In any event, the argument that the MSPB cannot invalidate a statute on

its face is inapposite here. We do not understand the Agencies to argue

that any provision of the Act is facially unconstitutional, that is, unconsti-

tutional in all or most of its applications. See Moody v. NetChoice, LLC,

603 U.S. 707, 723 (2024). Rather, the Agencies contend that the adminis-

trative judges should either (1) construe the Act in a way that harmonizes

the statutory text with the Article II principles applicable to the underly-

ing personnel decisions, or (2) hold any conflicting provisions of the Act

unconstitutional only as applied to the specific employee removals at

issue here. In other words, the administrative judges are not being asked

to “declare a statute unconstitutional,” Elgin, 567 U.S. at 16–17, but

rather “to determine constitutional applicability” in each case before

them, 3 Davis, Administrative Law Treatise § 20.04, at 74. And each of

their determinations is subject to review by an Article III court. See

5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9). Such a limited constitu-

tional claim falls squarely within the MSPB’s own understanding of its

ability to pass upon “an agency’s application of a statute.” Jackson, 119

M.S.P.R. at 179.

Third, some could argue that the Agencies may obtain adequate review

of their constitutional issues later in the process, in an appeal before the

Federal Circuit. This ignores the practical consequences of delayed re-

view, however, which include a burdensome administrative process and

potential discovery involving the Executive Branch officials connected

with the removals. 6 See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367,

385 (2004) (emphasizing the unique “burden imposed by . . . discovery

orders . . . directed to . . . senior Government officials”). These costly

intrusions would be immaterial to the controlling constitutional questions

at issue in the underlying cases.

While Elgin did explain how the Federal Circuit could provide ade-

quate review of a constitutional claim raised by an employee that was not

passed upon by the MSPB, e.g., 567 U.S. at 19 (explaining that “the [Act]

empowers the MSPB to take evidence and find facts for Federal Circuit

review,” and that the Federal Circuit “may take judicial notice of facts

6 Because the issue of discovery is not at issue here, we need not, and therefore do not,

opine on the legality of an order from the Board or one of its administrative judges

directing discovery from a high-ranking Executive Branch official.

10

MSPB’s Authority to Adjudicate Constitutional Issues

relevant to the constitutional question”), the Court did not conclude that

Congress proscribed the MSPB from reviewing constitutional claims. See

id. at 17 (declining to “decide whether the MSPB’s view of its power is

correct”). It therefore did not consider the arguments that point in the

other direction.

Moreover, Elgin did not implicate a constitutional argument raised by an

employing agency to justify removing an employee. Failure by the MSPB

to consider such an argument could result in ongoing constitutional injury

to the President. That is because, subject to certain exceptions, a prevailing

employee “shall be granted the relief provided in the [MSPB] decision

effective upon the making of the decision.” 5 U.S.C. § 7701(b)(2)(A). And

the employing agency may not seek review absent intervention of a third

agency—OPM. It is therefore possible that the MSPB (or an administra-

tive judge) might grant relief to an employee before anyone examines the

question of whether that employee’s continued employment violates the

Constitution. Here, that relief would likely entail restoring the employee

to his position within the Executive Branch, to perform executive func-

tions, against the will of the President, just because an administrative

judge refused to consider the Agencies’ constitutional arguments in the

first instance.

To be sure, the Act provides that relief need not be granted immediately

if “the deciding official determines that the granting of such relief is not

appropriate,” id. § 7701(b)(2)(A)(i), and that an agency need not permit

the employee to return to active duty if reinstatement is ordered but the

employing agency “determines that the return or presence of such em-

ployee . . . is unduly disruptive to the work environment,” id.

§ 7701(b)(2)(A)(ii). But the first option requires the employing agency to

rely upon the administrative judge to determine that immediate relief is

inappropriate—presumably based upon the very constitutional question

the judge refused to entertain on its merits. And the second option also

has serious costs. In that circumstance, the position would still be encum-

bered, preventing the agency from onboarding a new official to assume

the duties of the terminated employee. And the agency would be forced to

pay the employee “pending the outcome of any petition for review,” id.

§ 7701(b)(2)(B), and to undergo a burdensome administrative proceeding

11

49 Op. O.L.C. __ (Sept. 26, 2025)

without first obtaining an answer to a fundamental constitutional issue.

That result cannot be right. 7

* * * * *

For these reasons, we conclude that the MSPB administrative judges

must adjudicate the constitutional issues raised by the Agencies. Nothing

in this opinion, however, should be read to take a position on the merits of

the Agencies’ constitutional arguments or any other merits arguments in

the underlying disputes.

T. ELLIOT GAISER

Assistant Attorney General

Office of Legal Counsel

7 We do not decide whether the Constitution limits Congress’s ability to empower the

MSPB to order reinstatement for any specific category of employee within the Executive

Branch.

12