Margolin v. NAIJ · ¶21

Nevertheless, the Fourth Circuit strained to avoid dismissal of the case based on its belief that new political considerations changed the governing law. The court explained that it would not allow its “black robes to insulate [it] from taking notice of items in the public record.” Id., at 313. Specifically, the Fourth Circuit worried that because “the President removed the Special Counsel” and “two members of the MSPB,” there were now “serious questions as to whether the CSRA's adjudicatory scheme continues to function as intended.” Id., at 305. Congress designed the CSRA to rely on MSPB independence, the Fourth Circuit claimed, so now that “the Government has questioned the constitutionality of the removal protections enshrined in the CSRA,” it was no longer clear that the statutory scheme was functioning as Congress intended. Id., at 308. If it were not, the court reasoned, Congress…

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