Trump’s Dismantling of the Government Hurts Due Process

Most agency actions are properly classified as adjudicatory in nature. At times, adjudication is relatively informal, such as when a postal worker weighs a letter to determine whether it has adequate postage. In other instances, however, agency adjudication takes the form of a quasi-judicial hearing. Adjudicatory agencies often look, act, and behave like federal courts, but they conduct nine times as many hearings.

Individuals appearing before these agencies often enjoy a constitutional right to a meaningful hearing. The Trump administration’s assault on adjudicatory agencies threatens this right. By attacking the independence of agency adjudicators and cutting their support staff, Trump has reduced the likelihood that individuals will receive a meaningful hearing. Two groups are at significant risk: federal employees and immigrants. The Merit Systems Protection Board (MSPB) and the Federal Labor Relations Authority (FLRA) adjudicate employment claims brought by federal employees and their labor unions. The Executive Office of Immigration Review (EOIR)—a bureau within the Department of Justice—adjudicates removal proceedings for individuals accused of violating immigration laws. Although I use the federal workforce and immigrants as a case study in this piece, agencies also adjudicate claims for Social Security, Medicaid, veterans’ benefits, and other benefits that Americans citizens rely on.

The Trump administration’s version of unitary executive theory is in tension with the due process rights afforded to Americans under the Constitution. Courts ought to be mindful of this tension when deciding whether to expand unitary executive theory in future cases.

What is a Meaningful Hearing?

The Fifth Amendment of the U.S. Constitution prohibits the federal government from depriving any person of life, liberty, or property without due process of law. Hearings before adjudicatory agencies often concern constitutionally protected interests. For example, most federal employees have a protected property interest in their continued employment. Individuals in immigration detention have a liberty interest in their freedom from immigration detention.

Central to procedural due process is a “hearing” conducted “at a meaningful time and in a meaningful manner.” Legally, assessing the sufficiency of a hearing requires balancing the private interest affected, the risk of erroneous deprivation, and the government’s interest in its chosen procedures. When the deprivation of the interest presents lower stakes, a “hearing” can be as simple as an opportunity to submit a letter contesting the agency’s findings and conclusions. In higher-stake cases, however, the hearing requires greater formality, such as oral arguments and legal representation in a court-like proceeding.

At a normative level, a meaningful hearing must embody three substantive ideals. First, the hearing must produce an “accurate” outcome—that is, the adjudicator must assess the facts of the situation and properly apply the law to reach the “correct” conclusion. The greatest threat to accuracy is the injection of bias into the proceeding. Second, the hearing must proceed efficiently, reducing the time, effort, and expense it takes to arrive at an accurate conclusion. Third and finally, the agency, the respondents, and the public must perceive the outcome as acceptable and fair, regardless of whether they win or lose.

The concept of a “meaningful hearing” is central to the government’s legitimacy and the protection of constitutional rights. As a normative manner, inaccuracies, inefficiencies, or perceptions of unfairness threaten public trust in government proceedings. As a legal matter, flawed adjudications violate procedural due process. The Trump administration’s efforts to control adjudicatory agencies threaten to deprive federal employees and individuals in removal proceedings of an accurate, efficient, and fair hearing.

Decisional Independence and the Removal of Agency Adjudicators

Central to accuracy and fairness is the notion of decisional independence. Decisional independence means that the adjudicator has an opportunity to make findings and issue a decision without external interference. It connotes a sense of impartiality.

One of the greatest threats to decisional independence is political interference in the hiring and firing of agency adjudicators. As Aaron Nielson, Christopher Walker, and Melissa Wasserman describe in a forthcoming article, decisional independence requires the hiring and firing of agency adjudicators based on merit. Threats of promotion, demotion, and firing erode decisional independence by increasing the likelihood that adjudicators—perhaps unconsciously—bend their decisions toward the president’s policy preferences.

Trump has clear preferences for the outcomes in adjudications before the EOIR, the MSPB, and the FLRA. In the case of the EOIR, Trump favors “mass deportations” and the expeditious removal of undocumented immigrants. In the case of the MSPB and the FLRA, Trump has asserted that he has the authority to fire federal employees unimpeded by civil service laws or collective bargaining agreements.

Consistent with these preferences, Trump has sought to reshape adjudicatory agencies by firing adjudicators who otherwise enjoy protection from removal. The EOIR has experienced the most removals of the three agencies discussed here. On Inauguration Day, EOIR General Counsel Jill Anderson received a termination notice that cited “Title II of the Constitution” as its sole explanation. (Note: The Constitution does not have a “Title II.” A charitable interpretation suggests that the administration meant “Article II”—the basis for the majority of its personnel decisions). Chief Judge Sheila McNulty received a similar termination. Three weeks later, the administration fired 20 more immigration judges (IJs). IJs are career employees who enjoy the protections of the civil service system. Under those laws, an agency may only remove an employee “for such cause as will promote the efficiency of the service.” When an agency proposes to remove an employee, it must provide 30 days’ notice and an opportunity to respond to the agency’s reasoning. The Trump administration seemingly did not follow these procedures in removing IJs.

Trump has also sought to remove board members from the MSPB and the FLRA. On Feb. 10, Trump removed Cathy Harris, the chair of the MSPB’s three-member board, from her position. Although the MSPB’s members are presidential appointees confirmed by the Senate, 5 U.S.C. § 1202 specifies that the president may remove members only for “inefficiency, neglect of duty, or malfeasance in office.” A federal court later issued a temporary restraining order preventing Harris’s removal. Simultaneously, Trump removed Susan Tsui Gundmann, the chair of the FLRA’s three-member board. Like appointees to the MSPB, 5 U.S.C. § 7104 states that the president may remove FLRA members only for “inefficiency, neglect of duty, or malfeasance in office.” Nothing suggests that either Harris or Gundmann was removed for inefficiency, neglect, or malfeasance.

The removal protections afforded to adjudicators are crucial to decisional independence and, in turn, the preservation of accuracy and fairness. They limit adjudicators’ exposure to undue political pressure and legitimize the adjudicator as a neutral arbitrator in the eyes of the public. Likewise, they prevent the president from simply firing adjudicators who reach “undesirable” results and replacing them with individuals more likely to reach the president’s preferred results. As one recently fired IJ stated, “It was political. If you start making it political, it really does blow the system up and blow up people’s faith in the system.”

This is not the first time a president has sought to influence adjudicatory outcomes through the hiring and firing of adjudicators. During the first Trump administration, IJs reported that they chose to leave the agency due to pressure from the administration to “deport as many people as possible as soon as possible with only token due process.” During the George W. Bush administration, an investigation by the Justice Department’s Office of Professional Responsibility and Inspector General revealed that the administration believed it was “appropriate to consider political factors in assessing IJ candidates,” including whether the candidate “loyally served the president.” The political salience of these hirings and firings creates a risk that the public will perceive the adjudications performed by these agencies as biased and unfair.

The Trump administration believes it stands on firm constitutional ground. Trump has adopted a strong version of the unitary executive theory, asserting that Article II of the Constitution permits the president to remove any subordinate within the executive branch. In several statements, the Justice Department has stated that removal protections for agency adjudicators are unconstitutional. These statements directly conflict with the Supreme Court’s 1958 decision in Wiener v. United States, which held that the president has neither constitutional nor statutory authority to remove adjudicators protected by removal protections.  Nevertheless, the Justice Department’s broad statement suggests a willingness to more readily interfere in the hiring and firing of adjudicatory agencies.

The Influence of Caseloads and Capacity on Accuracy and Efficiency

To achieve accurate and efficient outcomes, agencies also need adjudicatory capacity. Elsewhere, I define “adjudicatory capacity” as “the resources—the space, equipment, expertise, and support staff—needed for an adjudicator to dispense with cases in an accurate and efficient manner.” Adjudicatory capacity requires a sufficient number of adjudicators and support staff. Capacity must be understood in concert with the agency’s caseload. A higher caseload demands a greater level of capacity. The actions of the Trump administration threaten to simultaneously increase adjudicators’ caseloads while simultaneously depleting their capacity.

An adjudicatory agency cannot efficiently process cases when it lacks enough adjudicators. The EOIR currently has a backlog of over 3.7 million cases as of December 2024. In 2005, the average IJ had a backlog of 851 pending cases. By 2021, the average IJ had a backlog of nearly 3,400 cases. Nine percent of IJs had backlogs exceeding 10,000 cases. This has translated into an average wait time of 603 days for a hearing. Many individuals are detained in jails or prisons during this time. Firing IJs increases each individual IJ’s caseload and, consequently, increases the time it takes for an individual to receive a hearing.

The MSPB and the FLSA are also likely to see meaningful upticks in their caseloads, putting greater pressure on the administrative judges in those agencies. The Trump administration has used questionable—if not outright illegal—means to remove federal employees from their jobs. Recently, the administration ordered the firing of approximately 220,000 probationary employees. The MSPB has already reported an “uptick in appeals” since Trump took office. The Office of Special Counsel has asked the MSPB to review whether the Trump administration failed to comply with the proper procedures in firing probationary employees. Both the MSPB and the FLSA will need greater capacity to handle their growing backlogs.

Adjudicators also need support staff to help them manage these caseloads. The EOIR also lacks sufficient support staff to assist IJs with their caseloads. For example, law clerks help IJs build an administrative record, conduct legal research, and draft orders. Although the EOIR has consistently requested a one-to-one ratio of law clerks to immigration judges, it has never attained this benchmark. As of 2022, the average IJ shares their law clerk with at least one other judge. There is also no correlation between an IJ’s caseload and the number of law clerks they have. Without a dedicated law clerk, an IJ must spend more of their own time researching case law, drafting orders, and performing clerical work traditionally carried out by a law clerk.

Most adjudicatory agencies lack sufficient staff to process their caseloads. By one estimate, the Social Security Administration needs 20,000 additional hires to manage its caseload. Yet the Social Security Administration has just announced that it will begin “significant workforce reductions.” The National Association of Immigration Judges has suggested that the EOIR needs to double the number of IJs from 700 to 1,400 if it wants to solve its backlog by 2032. Yet the Trump administration has instituted a hiring freeze that prevents adjudicatory agencies from growing their workforces.

Although these agencies need to increase the size of their workforces, they face a significant risk of layoffs and attrition. Trump’s recent executive order calling for large-scale reductions in force makes no exception for adjudicatory agencies. Even if these agencies do not actively remove employees from their positions, the erosion of morale within the civil service may encourage adjudicators and staff to exit public service.

How does this lack of capacity affect accuracy? Burdensome workloads encourage adjudicators to take procedural shortcuts. Adjudicators may not spend as much time reviewing evidence in a case, or they may schedule more hearings than manageable in a single day because they are overburdened by their caseloads. Empirical evidence shows that IJs with less capacity reach different outcomes than adjudicators with more capacity. IJs with one law clerk are 5.2 percentage points less likely to order the removal of an individual in removal proceedings. Likewise, some of these same IJs are 14.7 percentage points more likely to grant that individual asylum. The discrepancy in outcomes based solely on capacity raises concerns about the accuracy of adjudicatory proceedings in which the agency lacks sufficient capacity.

Limbo and the Absence of Alternative Venues

Concerns about adjudicatory agencies are often met with a simple question: Why don’t these individuals simply take their case to federal court? The answer: They can’t. This has little to do with the merits of their claims. Rather, the reasons for this lie in the complexity of jurisdiction.

Federal courts need subject-matter jurisdiction before they can hear a claim. In Thunder Basin Coal v. Reich, the Supreme Court determined that many statutory regimes involving adjudicatory agencies implicitly strip federal district courts of jurisdiction to hear cases typically brought before the agency. Instead, the individual must channel their grievances through the administrative process before appealing to federal court. In at least two recent cases, the federal courts have cited Thunder Basin to deny labor unions the opportunity to challenge the Trump administration’s recent personnel decisions. In a case challenging the deferred resignation program, Judge George O’Toole held that “[a]ggrieved employees can bring claims through the administrative process”—even if “unions themselves may be foreclosed from this administrative process.” For similar reasons, Judge Christopher Cooper denied a request for a preliminary injunction to prevent the mass firing of probationary employees. Individuals in removal proceedings also face a system where district courts have largely been stripped of subject-matter jurisdiction.

Yet the inability to get to federal court can leave individuals in adjudicatory limbo. For example, the MSPB reviews personnel decisions in two stages. First, an administrative judge issues a decision on the matter. Second, the three-member board hears appeals from these decisions, but the board must have a quorum to issue any decisions. During the first Trump administration, the MSPB lost a quorum from 2017 to 2022. Unable to decide any appeals, the agency accrued a backlog of approximately 3,800 cases.

Although federal courts acknowledged the lack of a quorum, they did not permit employees to file in federal court. In Rodriguez v. Department of Veterans Affairs, the U.S. Court of Appeals for the Federal Circuit held that, “[t]o be sure, the temporary absence of a quorum means that, at present, if an employee seeks review by the Board, the review will be delayed …. The delay caused by the absence of a quorum on the Board does not render the statutory adjudicative scheme constitutionally suspect any more than would be true in the event of a lengthy delay in the resolution of Board appeals caused by a severe backlog in cases pending before the Board.” In a footnote, the court noted that a constitutional problem may arise if the delay proceeded for a significantly longer period of time.

The MSPB once again faces the possibility of a lack of quorum. Trump’s efforts to fire Harris would leave the MSPB with two board members. Another board member’s term expires on March 1. If Trump succeeds at removing Harris and the Senate does not confirm new board members, the MSPB will be without a quorum.

The opportunity for a hearing must occur at a “meaningful time.” Employees caught in a quorum-less MSPB may sit in limbo for years. At the same time, these employees must often move on with their lives, secure other employment, and begin building a new career. They cannot afford to wait for an eventual reward of back pay and the reinstatement of their job. Likewise, the lack of capacity within the EOIR raises concerns that many individuals in removal proceedings will be unable to seek relief for years. The complicated system of jurisdiction that undergirds agency adjudication weds employees to a system the Trump administration seeks to undermine and control.

The Tension Between Presidential Power and Due Process

Trump claims that Article II of the Constitution grants the president authority to exercise complete control over the executive branch. In a recent brief before the Supreme Court, the solicitor general asserted:

The executive power generally includes the ability to remove executive officials. Otherwise, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. The President’s power to remove those who exercise his executive power on his behalf follows from the text of Article II, was settled by the First Congress, and has been confirmed by this Court many times. Thus, the President’s power to remove executive officers of the United States whom he has appointed may not be regulated by Congress or reviewed by the courts. (Citations and quotation marks removed.)

The case involved the removal of a presidentially appointed officer, but it is easy to see how the Trump administration has extended this logic to justify a mass restructuring of the federal government and its workforce.

Two reasons explain why courts should approach these arguments with some trepidation in the context of agency adjudication.

First, even if Article II grants the president extraordinary power over the executive branch, the president still has a constitutional obligation to “take Care that the Laws be faithfully executed.” Indeed, the Take Care Clause is a central justification for unitary executive theory. Faithful execution of the laws requires that executive officers, including agency adjudicators, faithfully apply the laws to the facts of a given situation. It also requires the president—and his employees within the executive branch—to uphold the constitutional rights of citizens in their interactions with the government. Accordingly, the Take Care Clause should come with an obligation to faithfully manage administrative agencies in a way that protects constitutional rights.

Second, as applied in the adjudication context, unitary executive theory can undermine constitutional due process. Traditional arguments against unitary executive theory focus on the role of Congress in checking the executive branch. In the context of agency adjudication, however, unitary executive theory has the potential to deprive citizens of the rights guaranteed to them by the Constitution—in this case, the right to a meaningful hearing before the deprivation of life, liberty, or property. The tension lies not in the separation of powers but in the relationship between citizens and the federal government. The requirement to channel grievances through administrative agencies means the executive branch is often the only entity capable of providing these citizens with a meaningful hearing. The president deprives citizens of this right when he dismantles the agencies that conduct these hearings. At a minimum, courts should consider whether intentional maladministration creates a system in which the pursuit of administrative remedies is futile, such that only federal courts can provide a meaningful hearing and opportunity for relief.

It is possible to imagine a world in which unitary executive theory and procedural due process do not conflict with one another. If strong norms prevented presidents from interfering in agency adjudication, then we would not need to have this conversation. It’s wholly possible that unitary executive theory works well for managing other portions of the executive branch and completely evades any threat to constitutional rights. Yet the Trump administration’s recent actions show how unitary executive theory can be weaponized in a way that threatens procedural due process. An individual’s constitutional interest in a meaningful hearing should outweigh the president’s own constitutional interest in executive branch control—especially in light of the president’s obligation to faithfully execute the law and uphold the constitutional rights of citizens. As courts consider whether to expand unitary executive theory, they should be mindful of this tension and the downstream consequences that greater control over hiring and firing of subordinates may have on procedural due process.