Jill E. Family (Widener University – Commonwealth Law School) has posted The Sky Is Falling: Immigration Law and Agency Adjudicator Independence (2026 Utah L. Rev., forthcoming) on SSRN. Here is the abstract:
This article examines the degradation of agency decisional independence under unitary executive theory through the experience of immigration law. The Supreme Court is expected to overturn 90 years of precedent this term, in Trump v. Slaughter, by embracing unitary executive theory to hold that Congress may not limit the president’s power to fire the head of an agency. Congress has protected some agency heads with “for cause” removal restrictions that do not allow the president to fire the agency head for political reasons. Slaughter threatens the category of “independent agency” and could upset fundamental understandings of the structure of government. During the oral argument in Slaughter, Solicitor General Bauer asserted that the “sky will not fall” if the Supreme Court eliminates independent agencies. This article asserts that the experience of immigration law shows the opposite; the sky is falling.
The rise of presidential political control over administrative agencies has implications for agency adjudication. It raises the question whether the Court will extend the logic of unitary executive theory to agency adjudication. If it does, unitary executive theory will make all agency adjudicators more like immigration adjudicators. Congress has protected some agency adjudicators from political control. A president may fire these adjudicators only for cause. This type of restriction, however, is threatened by Slaughter. Congress has never insulated immigration agency adjudicators from political control. Immigration adjudicators decide cases with the knowledge that there can be employment repercussions if the president is displeased with the adjudicator’s decision-making record. This is true through both Republican and Democratic administrations. Immigration judges fear for their jobs. President Trump pushed out about 140 immigration judges in 2025.
Unitary executive theory promises to restructure agency adjudication and to eliminate Congress’ role in deciding which types of agency adjudication are subject to political control. The president would assume this power. Perhaps the executive branch will self-police and temper its use of political control. The experience of immigration law suggests otherwise.