Amicus Curiae Brief — Daren K. Margolin, Director of the Executive Office for Immigration Review, Petitioner v. National Association of Immigration Judges

No. 25-767

In the Supreme Court of the United States

________________________________________

DAREN K. MARGOLIN,

v.

Petitioner,

NATIONAL ASSOCIATION OF IMMIGRATION JUDGES,

Respondent.

________________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

________________________________________

BRIEF OF U.S. SENATORS TED BUDD, TED

CRUZ, MIKE LEE, AND ERIC SCHMITT AS AMICI

CURIAE IN SUPPORT OF PETITIONER

________________________________________

Kevin F. King

Counsel of Record

Paul J. Ray

Matthew J. Glover

Eli Nachmany

Jacob A. Rinear

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

kking@cov.com

(202) 662-6000

Counsel for Amici Curiae

—i—

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ..........................................................2

ARGUMENT ...............................................................4

I. The Fourth Circuit’s Ruling Intrudes on

Congress’s Prerogative. .........................................4

A. Article I Vests Congress—Not the Courts—with

Legislative Power. ..............................................4

1. It Is Congress’s Job to Monitor and

Respond to Executive Branch

Implementation of the Law. ...........................6

2. The Judiciary Is Ill-Suited to Update the

Law in Response to Executive Action. .........10

B. The Fourth Circuit Usurped Congress’s

Legislative Authority. ......................................11

1. The Panel Turned an Ordinary CSRA

Case into a Separation-of-Powers Mess. ......12

2. The Fourth Circuit’s Decision Flouts the

Constitution’s Separation of Powers. ...........15

3. This Case Demonstrates Why the

Framers Designed the Constitution the

Way They Did................................................18

II. Summary Reversal Is Warranted to Safeguard

the Legislative Process. .......................................21

CONCLUSION ..........................................................24

—ii—

TABLE OF AUTHORITIES

Page(s)

Cases

Alaska Airlines, Inc. v. Brock,

480 U.S. 678 (1987) .............................................. 20

Arizona v. Navajo Nation,

599 U.S. 555 (2023) .............................................. 10

Biden v. Nebraska,

600 U.S. 477 (2023) .......................................... 8, 23

Bond v. United States,

572 U.S. 844 (2014) .............................................. 22

Carcieri v. Salazar,

555 U.S. 379 (2009) ................................................ 6

City of Tahlequah v. Bond,

595 U.S. 9 (2021) .................................................. 23

Clark v. Sweeney,

No. 25-52, 2025 WL 3260170 (U.S.

Nov. 24, 2025)....................................................... 23

Consumer Fin. Prot. Bureau v. Cmty.

Fin. Servs. Ass’n of Am., Ltd.,

601 U.S. 416 (2024) ................................................ 8

Fin. Oversight & Mgmt. Bd. for P.R. v.

Centro de Periodismo Investigativo, Inc.,

598 U.S. 339 (2023) .............................................. 22

—iii—

Landgraf v. USI Film Prods.,

511 U.S. 244 (1994) .............................................. 22

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................... 10

McGrain v. Daugherty,

273 U.S. 135 (1927) ................................................ 8

Medina v. Planned Parenthood S. Atl.,

606 U.S. 357 (2025) .............................................. 16

Nat’l Ass’n of Immigr. Judges v. Owen,

160 F.4th 100 (4th Cir. 2025) .............................. 23

Nat’l Treas. Emps. Union v. United States,

990 F.2d 1271 (D.C. Cir. 1993) (1995) ................. 20

Perry v. MSPB,

582 U.S. 420 (2017) ................................................ 7

Regan v. Time, Inc.,

468 U.S. 641 (1984) .............................................. 21

RJR Nabisco v. Eur. Cmty.,

579 U.S. 325 (2016) .............................................. 22

Sw. Airlines Co. v. Saxon,

596 U.S. 450 (2022) .............................................. 22

Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994) .............................................. 14

Trump v. CASA, Inc.,

606 U.S. 831 (2025) .............................................. 11

—iv—

Trump v. Mazars USA, LLP,

591 U.S. 848 (2020) ............................................ 7, 8

Trump v. Slaughter,

146 S. Ct. 18 (2025) .............................................. 20

Trump v. Wilcox,

145 S. Ct. 1415 (2025) .......................................... 20

United States v. Chem. Found.,

272 U.S. 1 (1926) .................................................. 20

United States v. Fausto,

484 U.S. 439 (1988) .............................................. 11

Constitutional Provisions

U.S. Const. art. I ............................................. 4, 5, 8, 9

U.S. Const. art II ......................................................... 9

U.S. Const. art. III................................................. 4, 10

U.S. Const. amend. XVII ............................................. 5

Statutes

5 U.S.C. § 1202 .......................................................... 19

5 U.S.C. § 1204 .......................................................... 17

5 U.S.C. § 1211 .................................................... 17, 19

5 U.S.C. § 2302 .................................................... 16, 17

5 U.S.C. § 7703 .......................................................... 17

—v—

Airline Deregulation Act of 1978, Pub.

L. No. 95-504, 92 Stat. 1705 .................................. 6

One Big Beautiful Bill Act, Pub. L. No.

119-21, 139 Stat. 72 (2025) .................................... 7

Sarbanes-Oxley Act of 2002, Pub. L.

107-204, 116 Stat. 745 ........................................... 6

Telecommunications Act of 1996, Pub.

L. No. 104-104, 110 Stat. 56 .................................. 6

USA Freedom Act, Pub. L. No. 114-23,

129 Stat. 268 (2015) ............................................... 7

Other Authorities

4 Cong. Rec. 1255 (1876) ............................................. 9

William J. Baer, Where to From Here:

Reflection on the Recent Saga of the

Federal Trade Commission, 39 Okla.

L. Rev. 51 (1986) .................................................... 9

James T. Barry III, Comment, The

Council of Revision and the Limits of

Judicial Power, 56 U. Chi. L. Rev.

235 (1989) ............................................................. 10

Nathan S. Chapman & Michael W.

McConnell, Due Process as

Separation of Powers, 121 Yale L.J.

1672 (2012) ............................................................. 4

The Federalist No. 10 (James Madison)

(Clinton Rossiter ed., 1961) ................................. 11

—vi—

The Federalist No. 51 (James Madison)

(Clinton Rossiter ed., 1961) ................................... 5

The Federalist No. 58 (James Madison)

(Clinton Rossiter ed., 1961) ................................... 8

The Federalist No. 78 (Alexander

Hamilton) (Clinton Rossiter ed., 1961). ................ 5

C.W. Goodyear, President Garfield:

From Radical to Unifier (2023) ........................... 15

Ari Hoogenboom, Outlawing the Spoils:

A History of the Civil Service Reform

Movement 1865-1883 (1968) ................................ 16

Aneil Kovvali & Joshua C. Macey,

Private Profits and Public Business,

103 Tex. L. Rev. 711 (2025) ................................. 16

John F. Manning, Clear Statement

Rules and the Constitution, 110

Colum. L. Rev. 399 (2010) ................................... 23

Steven J. Menashi & Daniel Z. Epstein,

Congressional Incentives and the

Administrative State, 17 N.Y.U. J.L.

& Liberty 172 (2024) .............................................. 8

Antonin Scalia, A Matter of

Interpretation (1997) ............................................ 22

—vii—

Staff of H. Comm. on Oversight & Gov’t

Reform, 113th Cong., Rep. on Lois

Lerner’s Involvement in the IRS

Targeting of Tax-Exempt

Organizations (Mar. 11, 2014) ............................... 8

Stephen Coleman Tily, Note, National

Security Whistleblowing vs. DoddFrank Whistleblowing, 80 Brook. L.

Rev. 1191 (2015) ................................................... 16

Workforce Size & Composition, Off. of

Personnel Mgmt. (last updated Jan.

21, 2026) ............................................................... 12

—1—

INTEREST OF AMICI CURIAE1

Amici are United States Senators Ted Budd of

North Carolina, Ted Cruz of Texas, Mike Lee of Utah,

and Eric Schmitt of Missouri. As lawmakers in

Congress, amici have an interest in federal courts

respecting the separation of powers and giving full

effect to the laws that Congress enacts. As relevant

here, amici and their colleagues expect that courts

will apply laws like the Civil Service Reform Act

faithfully as written. Amici file this brief to defend

Congress’s prerogative, which the Fourth Circuit’s

decision undermines.

1 In accordance with Rule 37.2, all counsel of record received

timely notification of amici’s intent to file this brief. No party’s

counsel authored any part of this brief and nobody other than

amici and their counsel made any monetary contribution

intended to fund its preparation or submission.

—2—

INTRODUCTION AND

SUMMARY OF ARGUMENT

It is the role of Congress, not the courts, to decide

whether to amend a statute. The Fourth Circuit

ignored that elementary principle of constitutional

law. To decide this case, all the Fourth Circuit needed

to do was interpret the Civil Service Reform Act

(CSRA). Instead, the court added an unwritten

exception to the CSRA and remanded this case for a

federal district court to decide whether the exception

applies. That approach cannot be squared with the

separation of powers.

This case concerns constitutional challenges to a

federal personnel policy that requires immigration

judges to seek preapproval before accepting public

speaking engagements or publishing certain writings.

Some immigration judges balked at this policy,

arguing that it infringes their free speech rights.

Congress enacted the CSRA in part to provide a

mechanism to review these sorts of intra-executive

branch disputes.

Under the CSRA, federal employees must bring

their challenges to personnel practices through a

carefully constructed scheme of review: First, the

Office of Special Counsel (OSC) assesses the claim. If

OSC finds it is meritorious, the office passes it along

to the Merit Systems Protection Board (MSPB). The

MSPB, an executive branch agency that adjudicates

disputes involving federal personnel actions, then

reviews the claim.

After these agencies have

completed their proceedings, the employee can

petition for review in the Federal Circuit and, if need

be, this Court.

—3—

Instead of going through this process, the

immigration judges (represented by Respondent

National Association of Immigration Judges) went

straight to federal district court with a First

Amendment challenge to the preapproval policy. The

District Court dismissed the suit, holding (consistent

with this Court’s precedent) that the CSRA embodies

a congressional choice to strip the courts of

jurisdiction to hear such claims in the first instance,

routing them instead to the OSC and MSPB.

On appeal, the Fourth Circuit agreed with the

District Court’s rationale. Yet the Fourth Circuit

found a way to allow the suit to continue. Reasoning

that President Trump has undermined the integrity

of the CSRA’s review scheme by removing OSC and

MSPB officials, overseeing an MSPB that lacked a

quorum, and arguing against agency independence in

litigation, the Fourth Circuit remanded for the

District

Court

to

determine

whether

the

congressionally crafted review scheme was still

“functional.” App. 19a. If it is not, the panel

explained, then the District Court could disregard the

CSRA and allow Respondent to bring its claims

directly in federal court.

To state the obvious: This is not the role of a court.

Congress enacts and amends laws, and courts

interpret and apply them. That division of authority

is central to our constitutional order. It makes

practical sense, too. Congress has numerous ways to

assess presidential administration of statutory

programs and to put the executive back on the right

track when necessary.

The judicial branch, in

contrast, is limited to resolution of cases and

controversies. And yet, the Fourth Circuit saw fit to

—4—

arrogate legislative power in this case, asserting

judicial authority to amend the CSRA’s scheme of

review by adding an exception nowhere stated in the

statutory text. Moreover, the court’s understanding

of the CSRA—and the import of agency

independence—is riddled with errors. Summary

reversal is appropriate.

ARGUMENT

I. The Fourth Circuit’s Ruling Intrudes on

Congress’s Prerogative.

Congress does not need the Fourth Circuit’s help

to do its job. Part of that job is updating statutes

whenever necessary based on new developments.

Indeed, amending federal statutes is just one way

Congress

can

respond

to

the

President’s

administration of the civil service laws. Courts cannot

compete. When the Fourth Circuit remanded for an

inquiry into whether the CSRA’s review scheme

remains “functional,” App. 19a, it encroached on a

core element of Congress’s power.

A. Article I Vests Congress—Not the Courts—

with Legislative Power.

The Constitution reflects a division of authority

between Congress and the courts. Whereas “[a]ll

legislative Powers” granted to the federal government

in Article I are “vested in a Congress of the United

States,” U.S. Const. art. I, § 1, the “judicial Power” is

assigned exclusively to the federal courts, U.S. Const.

art. III, § 1.

That division was as careful as it was innovative.

See, e.g., Nathan S. Chapman & Michael W.

McConnell, Due Process as Separation of Powers, 121

—5—

Yale L.J. 1672, 1717 (2012) (explaining the novelty of

the Constitution’s separation of legislative and

judicial power). The Founders designed Congress and

the federal courts for different roles, and the features

that make each branch fit for its own work make it

unsuitable for the work of the other. For instance,

regular elections—every two years for Members of the

House of Representatives and every six years for

Senators—keep Congress “dependent on the society”

and therefore responsive to its “many parts, interests,

and classes.” The Federalist No. 51, at 324 (James

Madison) (Clinton Rossiter ed., 1961); see U.S. Const

art. I, § 2, cl. 1; U.S. Const art. I, § 3, cl. 1; see also U.S.

Const. amend. XVII. The judiciary, by contrast, was

intentionally insulated from political influence by

means of life tenure and salary protection, which

preserve an “independent spirit” that is “essential to

the faithful performance” of the judicial role. The

Federalist No. 78, at 469 (Alexander Hamilton)

(Clinton Rossiter ed., 1961). The same responsiveness

to public opinion that makes Congress fit to legislate

renders it unfit to decide cases and controversies;

conversely, the same protection from political

influence that equips federal judges to render

judgment according to law makes them unsuitable as

legislators. And so on with the other attributes by

which the Constitution distinguishes Congress and

the courts.

It is thus vital that Congress and the judiciary

each remain within their own sphere. Unfortunately,

the Fourth Circuit here violated that foundational

principle.

—6—

1. It Is Congress’s Job to Monitor and

Respond

to

Executive

Branch

Implementation of the Law.

Lawmaking consists of not only enacting new

legislation but also revising existing legislation

whenever necessary. Any number of factors can, and

do, prompt Congress to revise existing law. For

example, high-profile misconduct in a given sector

may prompt a tightening of industry standards. See,

e.g., Sarbanes-Oxley Act of 2002, Pub. L. 107-204, 116

Stat. 745. By the same token, shifting economic winds

might necessitate a reduction in industry regulation.

See, e.g., Airline Deregulation Act of 1978, Pub. L. No.

95-504, 92 Stat. 1705. Technological development is

also a powerful motivator for legislative activity,

prompting Congress to recalibrate outdated legal

frameworks. See, e.g., Telecommunications Act of

1996, Pub. L. No. 104-104, 110 Stat. 56.

This Court has long recognized that revising the

law is the job of Congress rather than the federal

judiciary. That recognition undergirds doctrines like

the presumption against implied repeals, which

teaches that “an implied repeal will only be found

where provisions in two statutes are in irreconcilable

conflict, or where the latter Act covers the whole

subject of the earlier one and is clearly intended as a

substitute.” Carcieri v. Salazar, 555 U.S. 379, 395

(2009) (cleaned up). The presumption against implied

repeals leaves it to Congress to say when a later

statute displaces an earlier one, except in those few

cases in which it is evident from the later enactment

itself that Congress has chosen to do away with the

earlier statute.

This Court is quite right to

acknowledge that revising statutory law in response

—7—

to changes like legislative enactments falls to

Congress.

How the executive branch administers the law is

one important factor that Members of Congress

consider in exercising their authority to change

existing law.

Indeed, one of Members’ core

responsibilities is to monitor how the President

implements federal law and to respond as necessary.

In doing so, they take the long view, considering how

presidents over the decades have administered the

statutes at issue. Members of Congress do not act in

response

to

every

change

in

executive

implementation. But when it determines that the

executive’s administration of the law does warrant a

response, Congress has a variety of tools at its

disposal.

Statutory Amendment. When “a statute needs

repair, there’s a constitutionally prescribed way to do

it. It’s called legislation.” Perry v. MSPB, 582 U.S.

420, 441 (2017) (Gorsuch, J., dissenting). Statutory

amendment can be a highly effective tool to respond

to executive administration of an existing statute, and

it’s one Congress uses frequently. See, e.g., One Big

Beautiful Bill Act, Pub. L. No. 119-21, § 82001, 139

Stat. 72, 337–48 (2025) (amending Higher Education

Act of 1965 in response to President Biden’s student

loan forgiveness plans); USA Freedom Act, Pub. L. No.

114-23, 129 Stat. 268 (2015) (limiting bulk collection

of Americans’ information by the federal government).

Oversight and Public Hearings. This Court has

long affirmed that the “power of inquiry—with process

to enforce it—is an essential and appropriate

auxiliary to the legislative function.” Trump v.

Mazars USA, LLP, 591 U.S. 848, 862 (2020) (quoting

—8—

McGrain v. Daugherty, 273 U.S. 135, 161 (1927)).

That power “encompasses inquiries into the

administration of existing laws.” Id. So when

Members of Congress suspect that the executive has

misapplied the law, they can issue subpoenas, publish

reports, and hold hearings to uncover—and shine

light on—that issue. See, e.g., Staff of H. Comm. on

Oversight & Gov’t Reform, 113th Cong., Rep. on Lois

Lerner’s Involvement in the IRS Targeting of TaxExempt

Organizations

(Mar.

11,

2014),

https://perma.cc/EA55-J3EG. Evidence shows that

“more oversight by Congress prevents an agency from

straying beyond the bounds of its legislative

mandate.” Steven J. Menashi & Daniel Z. Epstein,

Congressional Incentives and the Administrative

State, 17 N.Y.U. J.L. & Liberty 172, 189 (2024).

Appropriations. The Constitution provides that

“[n]o Money shall be drawn from the Treasury, but in

Consequence of Appropriations made by Law.” U.S.

Const. art I, § 9, cl. 7. Inspired by 17th and 18th

Century fiscal clashes between the English

Parliament and Crown, see Consumer Fin. Prot.

Bureau v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 601

U.S. 416, 453–58 (2024) (Alito, J., dissenting), the

Appropriations Clause confers on Congress its “most

complete and effectual weapon” for reining in

executive power, The Federalist No. 58, at 359 (James

Madison) (Clinton Rossiter ed., 1961); see also Biden

v. Nebraska, 600 U.S. 477, 505 (2023) (“Among

Congress’s most important authorities is its control of

the purse.”). Thus, if a President pursues initiatives

inconsistent with congressional intent, Congress can

wield its “power over the purse” to stop him. The

Federalist No. 58, at 359 (James Madison) (Clinton

—9—

Rossiter ed., 1961); see, e.g., William J. Baer, Where to

From Here: Reflection on the Recent Saga of the

Federal Trade Commission, 39 Okla. L. Rev. 51, 54

(1986) (detailing how congressional appropriations

policy helped to stem the tide of overregulation by the

Federal Trade Commission in the late 1970s and early

1980s).

Appointments. Congress also plays a key role in

the appointment of executive branch officials. See

U.S. Const. art II, § 2 (requiring the Senate’s “Advice

and Consent” for presidential appointments). Thus, if

Senators conclude that a personnel decision of the

President would undermine the efficacy of a statutory

scheme or otherwise impede the faithful execution of

the law, they could refuse to confirm the President’s

nominee.

Impeachment. Finally, the Constitution endows

Congress with the power to impeach and remove

executive branch officials. See U.S. Const. art I, § 2,

cl. 5; U.S. Const. art I, § 3, cl. 6. Although it wields

the impeachment power sparingly, Congress has

employed this important tool when executive branch

officials violate the law. See, e.g., 4 Cong. Rec. 1255

(1876) (impeaching Secretary of War William W.

Belknap).

In

short,

among

Congress’s

weightiest

responsibilities is the duty to respond to changing

circumstances—including executive implementation

of federal statutes. The Constitution equips Congress

well to undertake that duty, which it has often

discharged throughout the Nation’s history. To do so,

Members of Congress employ a variety of tools, none

of which is all-purpose: each comes with costs and

benefits, and Members choose among them carefully

—10—

to ensure that the executive faithfully upholds the

law.

2. The Judiciary Is Ill-Suited to Update the

Law in Response to Executive Action.

The courts, by contrast, lack the authority and

capability to update the law in response to changes in

executive administration. The Constitution does not

vest the judiciary with the power of law revision, and

even if courts had such authority, they would still lack

the tools and institutional capacity to perform the

task effectively.

To start, the Constitution does not confer power on

the courts to update the law in response to changing

circumstances, including changes in executive

administration. Cf. James T. Barry III, Comment,

The Council of Revision and the Limits of Judicial

Power, 56 U. Chi. L. Rev. 235, 235 (1989) (describing

the Framers’ rejection of a “Council of Revision” that

“would have vested the federal veto power in an

institution composed of the President and several

members of the federal judiciary,” thereby

“illustrat[ing] how the Framers … chose instead a

judiciary that took no part in the creation of laws”).

Courts only resolve “Cases” and “Controversies.” U.S.

Const. art. III, § 2. To do that job, they must ascertain

and apply the law that governs the dispute before

them. See Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177 (1803). “But it is not the Judiciary’s role to update

the law.” Arizona v. Navajo Nation, 599 U.S. 555, 566

(2023).

That is squarely the responsibility of

Congress.

to

Moreover, courts are not institutionally competent

determine when deficiencies in executive

—11—

administration require changes to existing legislation.

Courts’ insulation from the public means they are

poorly equipped to understand the real-world effects

of the executive’s administration, and their lack of

democratic accountability means they do not

adequately channel the people’s policy preferences.

Further, courts lack the anti-faction protections that,

per Federalist 10, tend to make federal legislation

reflect the interests and views of the nation as a whole

rather than of various blocs. See The Federalist No.

10 (James Madison) (Clinton Rossiter ed., 1961). And

courts lack the wide array of differentiated

instruments available to Congress for remedying

executive maladministration.

Of course, if

administration of a statutory program violates the

law in a way that inflicts a legally cognizable injury,

courts can issue appropriate relief to the parties

before them. See Trump v. CASA, Inc., 606 U.S. 831,

861 (2025) (“[F]ederal courts do not exercise general

oversight of the Executive Branch; they resolve cases

and controversies consistent with the authority

Congress has given them.”). But courts are poorly

situated to attempt the political remedies, such as

amending statutory law, that Congress may employ.

B. The Fourth Circuit Usurped Congress’s

Legislative Authority.

This case should have been straightforward. In

the CSRA, Congress “established a comprehensive

system for reviewing personnel action taken against

federal employees.” United States v. Fausto, 484 U.S.

439, 455 (1988). The District Court dismissed this

suit on that basis, concluding “that Congress intended

the CSRA scheme to preclude district court

—12—

jurisdiction” over a claim like the one brought by

Respondent. App. 124a.

The Fourth Circuit panel (Harris, Heytens,

Berner, JJ.) agreed with the District Court’s

rationale. App. 2a. Yet the panel went a step

further—unnecessarily igniting a separation-ofpowers firestorm in the process. In the end, the

Fourth Circuit somehow found itself remanding for a

determination whether a statute passed by Congress

and signed into law by the President remains

“functional.” App. 19a. The very notion of a judge

conducting such an inquiry is a reminder of why the

Framers separated power in the way they did.

1. The Panel Turned an Ordinary CSRA

Case into a Separation-of-Powers Mess.

The federal government employs millions of civil

servants.2 To promote the efficiency of the federal

workforce, the government must undertake a variety

of personnel actions—e.g., setting personnel policies,

enforcing internal standards, and firing employees

when appropriate. Of course, an affected employee

may want to challenge such a personnel action. And

in enacting the CSRA, Congress provided an avenue

for bringing such a challenge.

Under the CSRA, an employee can file a complaint

with the Office of Special Counsel (OSC), which can

refer such a complaint to the Merit Systems

Protection Board (MSPB) if the Special Counsel

believes that the complaint warrants the MSPB’s

review. Depending on how this process plays out, the

employee can petition for review in the U.S. Court of

2 See Workforce Size & Composition, Off. of Personnel Mgmt. (last

updated Jan. 21, 2026), https://perma.cc/CF6W-8UXK.

—13—

Appeals for the Federal Circuit after the agencies

have taken an initial look. Congress made a policy

choice when enacting this statutory scheme, striking

a balance between the importance of judicial review of

unlawful actions and the potential for unwarranted

judicial intrusion into federal personnel management.

This case exemplifies the dilemma that the CSRA

seeks to address. Concerned about “ensur[ing] that

[the Executive Office for Immigration Review’s]

messaging is consistent across official engagements,”

the executive branch instituted a policy that required

immigration judges, who are employed by the

Department of Justice, to clear certain written work

and speaking engagements ahead of time. App. 75a.

Respondent, which represents immigration judges,

challenged the policy. App. 72a–73a. The CSRA

channels these sorts of challenges to the OSC and the

MSPB, allowing the executive branch to address the

federal employees’ concerns internally before opening

up an interbranch process. And then, if the dispute

does proceed to federal court, the CSRA ensures that

it goes to the Federal Circuit—a specialized tribunal

with a specific expertise in federal civil service issues.

So, when Respondent attempted to jump the track

and sue in federal district court instead, the District

Court dismissed the suit for lack of jurisdiction. App.

73a. Respondent appealed to the Fourth Circuit,

arguing that although the CSRA channels most

employment-related claims to the MSPB, its claim—

“a simple pre-enforcement challenge to a far-reaching

prior restraint”—is exempt from the scheme. Resp.

C.A. Br. 13. For its part, the Fourth Circuit agreed

with the District Court, concluding that the CSRA

requires the OSC and MSPB to review such claims in

—14—

the first instance. Had the Fourth Circuit stopped

there and affirmed the District Court’s dismissal, this

case would be unremarkable.

The Fourth Circuit, however, went further. Even

though Respondent accepted that the CSRA applied,

the Fourth Circuit took it upon itself to ask whether

the President’s actions have rendered the statute’s

OSC-and-MSPB scheme of review non-“functional.”

Purporting to apply Thunder Basin Coal Co. v. Reich,

510 U.S. 200 (1994), the panel determined that the

District Court must “further examin[e]” whether

Congress intended “to preclude district-court

jurisdiction” because, in the panel’s view, “[t]he

CSRA’s adjudicatory scheme was predicated on the

existence of a functioning and independent MSPB and

Special Counsel.” App. 11a. The panel’s decision

recounts the President’s removals of Special Counsel

Hampton Dellinger and multiple MSPB members,

and it takes note of the Government’s litigating

positions in several cases involving agency

independence. App. 14a–15a. Then, after proceeding

from the premise that the CSRA “requires a strong

and independent” MSPB and OSC, the panel attacked

the strawman that it had built. App. 2a. The panel

concluded that the President’s personnel decisions

“raise serious questions as to whether the CSRA’s

adjudicatory scheme continues to function as

intended.”

App. 15a.

Accordingly, the panel

remanded to the District Court to determine “whether

the CSRA continues to provide a functional

adjudicatory scheme.” App. 19a. The Fourth Circuit

denied en banc rehearing over the dissent of six

judges. See App. 33a–34a, 48a–68a (Quattlebaum, J.,

dissenting from denial of rehearing en banc).

—15—

2. The Fourth Circuit’s Decision Flouts the

Constitution’s Separation of Powers.

The Constitution does not empower district courts

to conduct factual inquiries into the continued

functionality of statutes. Under our Constitution,

Congress—not the courts—must decide whether to

amend a statute in light of how the President is

administering that statute. That is with good reason.

Because Members of Congress are elected by the

American people, Congress is best suited to express

the people’s views regarding the executive branch’s

administration of the CSRA and their embrace or

rejection of it. And Congress’s assessment of the

CSRA’s administration will come far closer to

representing the views of the people as a whole than

any judicial panel ever could. If the American people

believe the CSRA needs to be amended, then they can

signal as much at the ballot box and at any time in

between as Members continuously ask for and receive

input from constituents.

Federal personnel policy has long been a

controversial subject—arguably the catalyst of

President James Garfield’s tragic assassination by a

disgruntled office seeker in 1881. See C.W. Goodyear,

President Garfield: From Radical to Unifier 456

(2023).3 A movement to reform the civil service laws

reached a fever pitch in the aftermath of the

assassination, resulting in Congress enacting the

Pendleton Civil Service Reform Act of 1883 after

3 To be sure, a Garfield biographer suggests that the President’s

assassin was not truly a committed advocate of patronage but

rather “a lost soul who, with little left to live for, commit[ted] an

atrocity simply for the sake of attention and notoriety.” Id. at

458.

—16—

robust deliberation and debate. See Ari Hoogenboom,

Outlawing the Spoils: A History of the Civil Service

Reform Movement 1865-1883, at 236–53 (1968). The

“Act was designed to end the ‘spoils system,’ in which

newly elected politicians would quickly replace

subordinate officials with political allies.” Aneil

Kovvali & Joshua C. Macey, Private Profits and

Public Business, 103 Tex. L. Rev. 711, 766 n.203

(2025).

This area of policy has remained a subject of

sustained public attention in the ensuing years,

demanding weighty policy choices. Americans want

an efficient, effective government that serves the

people and is responsive to them. At the same time,

federal employees have pushed for workplace

protections and labor rights. “The job of resolving how

best to weigh [these] competing costs and benefits

belongs to the people’s elected representatives, not

unelected judges charged with applying the law as

they find it.” Medina v. Planned Parenthood S. Atl.,

606 U.S. 357, 369 (2025).

Congress rebalanced these costs and benefits when

it enacted the CSRA in 1978, alongside the Inspector

General Act, partly “[i]n response to the Watergate

Scandal.” Stephen Coleman Tily, Note, National

Security

Whistleblowing

vs.

Dodd-Frank

Whistleblowing, 80 Brook. L. Rev. 1191, 1197 (2015).

The law established that a “significant change in

duties, responsibilities, or working conditions” in

violation of a “law, rule, or regulation implementing,

or directly concerning, the merit system principles”

would be a “prohibited personnel practice.” 5 U.S.C.

§ 2302(a)(1), (2)(xii), and (b)(12). One such principle

is that the government must give all employees “fair

—17—

and equitable treatment … with proper regard for

their privacy and constitutional rights.”

Id.

§ 2301(b)(2). But instead of authorizing direct review

of allegedly prohibited personnel practices in court,

Congress established federal agencies—OSC and the

MSPB—to hear challenges in the first instance before

an aggrieved employee could take his complaint to the

judicial branch. Id. §§ 1204, 1211. And even after

that, the employee would need to go specifically to the

U.S. Court of Appeals for the Federal Circuit—a

specialized court. See id. § 7703(b)(1)(A). This

statutory approach balances the needs of federal

employees with the sensitivities of involving another

branch of government (i.e., the judiciary) in an intraexecutive branch dispute, all the while promoting the

efficiency of the federal service.

As the enactment of the CSRA shows, when

executive branch actions require a change to the law,

Congress is willing and able to make it. When

Congress does so, it is far better than any court could

be at channeling the people’s policy judgments.

Moreover, Congress possesses a robust set of

factfinding tools—such as hearings and subpoenas—

to identify problems with presidential administration,

and it has unique access to the people’s views about

how that administration is playing out on the ground.

That is in contrast to courts, which are limited to the

evidentiary record in a given dispute. By bringing

together the people’s views on such a complex and

divisive topic as civil service reform, Members of

Congress can arrive at solutions that appeal to the

American people as a whole.

—18—

3. This Case Demonstrates Why the Framers

Designed the Constitution the Way They

Did.

The Fourth Circuit’s decision suffers from many

flaws that illustrate why the Constitution looks to

Congress, rather than the judiciary, for statutory

amendments. Two problems with the decision merit

special attention. First, the Fourth Circuit took issue

with the MSPB’s lack of quorum. But Congress, not

the courts, is best equipped to assess the significance

of the MSPB’s occasional lack of a quorum, and

Congress has tools to encourage the President to

appoint board members. Second, the Fourth Circuit

panel expressed concern regarding the President’s

removal of certain officials and the Government’s

positions in litigation. But the CSRA’s text does not

show that its review scheme hinges on agency

independence—and only Congress itself has authority

to change that.

The Fourth Circuit opined that “[i]n addition to

providing a functioning adjudicatory process, the

CSRA was designed to protect the independence of the

agencies reviewing federal employees’ claims.” App.

15a. Thus, the court took “judicial notice of matters of

public record” that bore on the “independence” of the

OSC and MSPB. App. 14a. In particular, the court

took “notice that during the pendency of this case, the

President removed the Special Counsel and two

members of the MSPB such that it currently lacks a

quorum.” App. 14a–15a (citation omitted). The court

seemed to assume that for the CSRA to have an

“adjudicatory scheme [that] continues to function as

intended,” the OSC and MSPB must be (1) formally

—19—

independent, (2) treated as such by the President, and

(3) have a quorum. App. 15a. That is incorrect.

Beginning with the quorum issue, the fact that the

MSPB happened not to have a quorum during certain

periods in this litigation is unremarkable. As the

Government’s petition points out, “[t]he MSPB lacked

a quorum between January 7, 2017, and March 3,

2022; between March 28 and April 7, 2025; and

between April 9 and October 28, 2025.” Pet. 28. Of

course, the mere fact that the MSPB occasionally

lacks a quorum does not ipso facto render the CSRA’s

review scheme ineffective. Nor does a history of

failure to have a quorum mean the agency will lack a

quorum in the future. It is for Congress, rather than

the courts, to decide whether the absence of an MSPB

quorum is sufficiently frequent and damaging to

render the CSRA’s system of review ineffective,

whether such failures are likely to continue into the

future, and what remedies (if any) are justified to

encourage the maintenance of an MSPB quorum. The

MSPB’s occasional lack of a quorum does not

authorize courts to toss out Congress’s choice in the

CSRA to strip the courts of jurisdiction to hear claims

like those at issue here in the first instance.

Moving on to the President’s removals of OSC and

MSPB officials, the Fourth Circuit’s decision rests on

the premise that the CSRA’s adjudicatory scheme

depends on OSC and MSPB independence. But that

premise is mistaken. True, the CSRA conferred

statutory removal protections on the head of the OSC

and the members of the MSPB. See 5 U.S.C.

§§ 1202(d), 1211(b). But if those officials were in fact

—20—

removable at will,4 then the CSRA’s adjudicatory

scheme still would vindicate the executive branch’s

interest in having the first opportunity to review

complaints about federal personnel practices before

another branch of government gets involved.

Moreover, presidential control of the internal review

process does not necessarily mean that the process

will be abused—in fact, this Court has instructed that

“in the absence of clear evidence to the contrary,

courts presume that [public officials] have properly

discharged their official duties.” United States v.

Chem. Found., 272 U.S. 1, 14–15 (1926).

The broader point is that the question how the

President’s assertion of removal authority over the

OSC and MSPB members advances or impedes

Congress’s various goals in enacting the CSRA is

squarely within Congress’s wheelhouse. For the

reasons already given, courts are poorly equipped to

make that policy judgment.

To be sure, in some cases—namely those in which

a

statutory

provision

has

been

held

unconstitutional—courts must inquire whether the

provision is severable from the remainder of the

statute. But in doing so, courts must be guided by

Congress. See Alaska Airlines, Inc. v. Brock, 480 U.S.

678, 685 (1987); Nat’l Treas. Emps. Union v. United

States, 990 F.2d 1271, 1278 (D.C. Cir. 1993), aff’d in

4 Cf. Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025) (staying a

district court order that enjoined the President’s removal of an

MSPB member but reserving judgment on whether the statutory

removal protections at issue are constitutional); Trump v.

Slaughter, 146 S. Ct. 18 (2025) (staying lower-court order that

had reinstated a Federal Trade Commission official based on

similar statutory removal restrictions).

—21—

part, rev’d in part, 513 U.S. 454 (1995) (“Whether an

unconstitutional provision is severable ‘is largely a

question of legislative intent, but the presumption is

in favor of severability.’” (quoting Regan v. Time, Inc.,

468 U.S. 641, 653 (1984))). Under this Court’s cases,

courts are not to exercise their own policy judgment

about what the law should look like without the

stricken provision; rather, they are to give effect to the

balance of the statute that Congress has enacted,

absent a clear indication that Congress would not

have enacted it without the stricken provision. The

Fourth Circuit did not purport to conduct a

severability analysis of the sort prescribed by this

Court. Had it done so, the outcome would have been

clear: the removal protections at issue are not integral

to the CSRA’s scheme, which must therefore be given

effect.

II. Summary

Reversal

Is

Warranted

Safeguard the Legislative Process.

to

If left unaddressed, the decision below will

destabilize the legislative process. If other courts

embrace the reasoning adopted by the Fourth Circuit

here—that a court is free to dispense with various

statutory provisions when it disagrees with the

executive branch’s administration of the statute—

then Congress will have to change its approach to

legislating in important ways. Even if this practice

remains confined within the Fourth Circuit’s borders,

it will inject considerable uncertainty into lawmaking.

For the most part, Members of Congress legislate

on the understanding that courts will enforce the

statutes they enact as written. After all, this Court

has made clear that courts must “interpre[t]

[statutory] language according to its ‘ordinary,

—22—

contemporary, common meaning.’” Sw. Airlines Co. v.

Saxon, 596 U.S. 450, 455 (2022) (citation omitted).

Members are aware of the limited circumstances in

which courts deviate from ordinary meaning. Judges,

for instance, require a clear statement of

congressional intent to give a statute retroactive

effect, see Landgraf v. USI Film Prods., 511 U.S. 244,

270 (1994), to apply a statute extraterritorially, see

RJR Nabisco v. Eur. Cmty., 579 U.S. 325, 335 (2016),

or to abrogate state sovereign immunity, see Fin.

Oversight & Mgmt. Bd. for P.R. v. Centro de

Periodismo Investigativo, Inc., 598 U.S. 339, 346

(2023).

Although these “dice-loading rules” are

disfavored, Antonin Scalia, A Matter of Interpretation

28 (1997), courts nonetheless employ them in

significant part because Congress “legislates against”

their longstanding backdrop. Bond v. United States,

572 U.S. 844, 857 (2014) (citation and quotation

marks omitted). With the exception of these and other

long-settled canons of construction, Members of

Congress deliberate and negotiate with the

expectation that courts will give effect to the ordinary

meaning of the statutes they enact—notwithstanding

any post-enactment social, economic, or political

developments.

The Fourth Circuit’s ruling upends those settled

expectations. By embracing the notion that courts can

tinker with statutes in response to changes in the

executive branch’s administration of them, the

decision below will require Congress to be much more

explicit about its intent to leave statutory provisions

in effect notwithstanding future changes in the way

statutes are administered.

The Fourth Circuit

“effectively impose[s] a ‘clarity tax’ on Congress by

—23—

demanding that it speak unequivocally if it wants to

accomplish certain ends.” Biden, 600 U.S. at 508

(Barrett, J., concurring) (quoting John F. Manning,

Clear Statement Rules and the Constitution, 110

Colum. L. Rev. 399, 403 (2010)). If allowed to stand,

this reasoning will make the difficult task of

legislation even more challenging, risking future

mismatches between the original public meaning of a

statute and the meaning ascribed to the statute by

courts.

As Judge Wilkinson opined in the en banc

proceedings in this case, “only the Supreme Court can

bring an effective halt” to these “seeds of real

mischief.” Nat’l Ass’n of Immigr. Judges v. Owen, 160

F.4th 100, 103 (4th Cir. 2025) (Wilkinson, J.,

concurring in the denial of rehearing en banc). This

Court summarily reverses lower court decisions that

clearly flout established legal principles. See, e.g.,

City of Tahlequah v. Bond, 595 U.S. 9, 13 (2021).

Indeed, earlier this term, the Court summarily

reversed the Fourth Circuit for exceeding the proper

bounds of the judicial role. See Clark v. Sweeney, No.

25-52, 2025 WL 3260170, at *2 (U.S. Nov. 24, 2025).

It should do so again here.

—24—

CONCLUSION

For the foregoing reasons, and the reasons stated

in the government’s petition for certiorari, this Court

should summarily reverse the Fourth Circuit’s

decision.

Respectfully submitted,

Kevin F. King

Counsel of Record

Paul J. Ray

Matthew J. Glover

Eli Nachmany

Jacob A. Rinear

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

kking@cov.com

(202) 662-6000

January 30, 2026

Counsel for Amici Curiae