Does the President's Removal Power Extend to the Voice of America?

The DC Circuit affirms an injunction barring the removal of VOA head Michael Abramowicz. Will the justices see the case the same way?

Trump v. Slaughter affirmed the President's presumptive power to remove principal officers (other than members of the Federal Reserve Board). But does this power also extend to inferior officers? And is it constitutional for Congress to effectively insulate some inferior officers from presidential removal?

Today, in Abramowitz v. Lake, the U.S. Court of Appeals for the D.C. Circuit affirmed a district court injunction barring the removal of Michael Abramowitz, the head of the Voice of America. In the process, it rejected the Department of Justice's arguments that the district court lacked jurisdiction to consider the case and held Congress may (as a practical matter) insulate inferior officers by presidential removal by vesting removal authority in the hands of an agency head that requires Senate confirmation.

Judge Pillard wrote for the panel, and was joined by Judges Srinivasan and Pan. Here is how she summarized the opinion.

Seeking to preserve the journalistic integrity of the news broadcasters within the U.S. Agency for Global Media, Congress empowered a separate agency, the International Broadcasting Advisory Board, with final authority over the hiring and firing of the broadcasters' heads-of-network. The leaders of the Agency for Global Media ignored that statute when they attempted unilaterally to fire Michael Abramowitz, the head of Voice of America. Abramowitz sued, and the district court permanently enjoined
the Agency for Global Media from removing Abramowitz without the International Broadcasting Advisory Board's approval.

We affirm the injunction. The district court had jurisdiction to enforce the statutory requirements governing the Voice of America directorship. Those statutory requirements are consistent with Article II. And the district court had equitable power to enjoin defendants from effectuating the illegal termination.

While acknowledging that, as a general matter, Congress has channeled litigation concerning allegedly improper removal of government employees to the Merit Systems Protection Board under the Civil Service Reform Act, the panel concluded that this general rule does not apply to the VOA as "Congress gave no hint" that it sought to divest district courts of jurisdiction to hear cases such as this when it revised the statute governing VOA in 2021. The removal protection of the VOA head "is not a standard employment law," according to the D.C. Circuit, "but a durable barrier against any breach of the firewall protecting the journalistic integrity of Voice of America." Writes Judge Pillard: "Congress had no reason to channel Abramowitz's claim through the CSRA, and every reason not to."

On the merits, the panel concluded Congress lawfully insulated the head of the VOA--an inferior officer--from removal by the President by vesting authority to appoint and remove the head of VOA in the International Broadcasting Advisory Board (IBAB).

IBAB is a seven-member "separate independent agency," the members of which must be bipartisan and are subject to Senate confirmation. IBAB is the relevant department head, even though it does not directly supervise VOA, as that job is performed by the U.S. Agency for Global Media--an arrangement the panel concluded is lawful under Morrison v. Olson.

The Department of Justice argued this unconstitutionally constrains the President's removal power, but the court was unconvinced.

Wrote Pillard:

So long as the President has adequate control over the department head, and the department head can control the inferior officer (as is the case here), the President can transitively control the inferior officer. The department head's supervision "preserv[es] the chain of command in Article II." Braidwood, 606 U.S. at 754.

Yet the practical effect of the court's ruling is that there is nothing the President can do to replace the head of the VOA. Six of the seven IBAB seats are currently open (having been removed by President Trump in 2025). Thus the Board is inquorate, and lacks the ability to remove the head of the VOA (or do much else). And, should Congress refuse to confirm new IBAB members, the current VOA head will remain in place. The DC Circuit may conclude this arrangement formally leaves the President with "adequate control" over the Board, but what good is control over a department head that is incapable of acting?

I suspect the Administration will seek further review, ultimately in the Supreme Court.  The question is whether it files a petition for certiorari right away, or first seeks rehearing en banc. While there is no likelihood the full D.C. Circuit will disturb the panel ruling, a petition for rehearing en banc might generate a dissent that could help attract the justices' attention. This case would also give the justices the opportunity to revisit Morrison v. Olson and say more about the extent to which inferior officers may (or may not) be insulated from presidential removal.