Until February 5, 2025, Tania Nemer was an Immigration Judge (IJ) charged with “conduct[ing] specified classes of proceedings” involving immigration law. On that day, Defendants interrupted her proceedings on the bench and told her that she was terminated “effective immediately.” She contends that this termination was based on her sex, national origin, and political affiliation. In response, the Trump administration claims that Nemer’s “status as an Officer of the United States . . . means that neither the protections of Title VII or the First Amendment apply to her removal.” In other words, the administration claims that because of the President’s authority under Article II, neither the Constitution nor the Congress can impose any limitations on the Attorney General’s authority to remove IJs. In May 2026, the Constitutional Accountability Center filed an amicus brief in support of Ms. Nemer. Our brief explains why the Trump administration’s argument is at odds with the text and history of the Constitution, as well as centuries of historical practice.

First, the Executive does not possess an illimitable power of removal over inferior officers. The Constitution gives Congress great flexibility in determining how best to shape the federal government, as well as a unique authority over inferior officers. In the nation’s early years, legislators recognized that Congress’s authority to create inferior offices and provide for their appointment necessitated control over their removal. Even lawmakers who contended that the President should have an inherent power to remove high-level officials agreed that Congress had authority to regulate the removal of inferior officers—it was widely assumed that any presidential power of removal extended only to officers appointed by the President.

Second, Congress has regulated the appointment and removal of inferior officers since the Founding. In the early republic, both Congress and the President seemed to understand that the president’s removal power was something to be granted—it had to be specified or it did not exist. As the nineteenth century progressed, Congress began explicitly regulating removals more frequently. And in the era after the Civil War, Congress tackled the “spoils system,” when public offices were corruptly doled out by political parties. It reformed the civil service to promote greater independence from party politics, and it began to protect inferior officers from arbitrary or politically-motivated removal. Later, Congress prevented discrimination in federal employment decisions. In 1966, 1972, and 1991, it passed legislation to protect growing numbers of federal workers from “discrimination because of race, color, religion, sex, or national origin.”

Finally, the Supreme Court has confirmed Congress’s power to govern the removal of inferior officers and employees. As early as 1836, the Court explained that Congress has the power to “limit and restrict the power of removal as it deem[ed] best for the public interest” in the case of inferior officers. For over a century afterwards, the Court repeatedly held that Congress controls removals in the case of inferior executive officers. Even in the more recent cases upon which the administration relies, the Supreme Court has confirmed that any presidential power of removal does not extend to inferior officers.