The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Perils of the Pentagon's Plan to Use Military Lawyers to Adjudicate Immigration Cases
The plan is illegal for multiple reasons, is likely to lead to poor decisions, and could undermine military readiness.
The Pentagon is planning to divert up to 600 military lawyers (known as "JAGs" - members of the Judge Advocate General's corps) to serve as temporary immigration judges. The idea is to dispose of immigration cases faster. As Samantha Michaels explains in a helpful Mother Jones article, this is illegal, and is likely to lead to poor decisions in immigration cases, given that most JAG lawyers lack relevant expertise:
The Trump administration has decided to get more immigration judges from an unprecedented source: the military.
On Tuesday, the Associated Press reported that the Pentagon plans to send up to 600 military lawyers to the Justice Department to temporarily run immigration courts around the country. Some of them could receive their new assignments as early as next week.
The arrangement would help the Trump administration tackle a backlog of immigration cases. But military lawyers have little or no experience with immigration law. And some former military lawyers worry the plan isn't even legal. It "should raise all sorts of alarms," Daniel Maurer, a former Army attorney who also taught law at West Point, told me recently.
I spoke with Maurer in July, after President Trump first hinted that he'd be open to the idea of deploying military attorneys—known as Judge Advocate Generals, or JAGs—as immigration judges in Florida. That idea, floated by Gov. Ron DeSantis, hadn't yet come to fruition. "There is no clear precedent for what DeSantis and the president are doing," Mark Nevitt, a law professor at Emory University who served as a Navy JAG, told me at the time.
"This would be unlawful," added Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles who was an Air Force JAG.
In particular, VanLandingham said, turning military lawyers into immigration judges would likely violate the Posse Comitatus Act, a federal law that bars US troops from participating in civilian law enforcement or "executing the laws," unless otherwise authorized to do so by the Constitution or Congress. It's "frightening," VanLandingham said of the plan, because "the use of military courts to hear civilian cases is the essential component of martial law."
Current and former JAG lawyers have suggested to me that this move could also undermine military readiness, and impair the military justice system. The 600 JAGs the Pentagon may reassign to this function are a substantial proportion of the armed forces' total of 7300 JAG lawyers. JAGs serving as immigration judges are obviously not performing their regular functions, and those functions may end up getting neglected.
I would add that there is a more fundamental constitutional problem here: migrants threatened with detention or deportation - like others threatened with severe deprivations of liberty by the government - should have their cases adjudicated by impartial, neutral judges, not people subject to removal and other discipline by the very executive branch authority that filed the case against them. I think most military lawyers would strive hard to be fair, and I have great respect for the JAGs I have met over the years, including a number of my former students. But the threat of retaliation for decisions the administration doesn't like creates a dangerous incentive structure.
Sadly, this problem is not limited to JAGs who may potentially act as immigration judges. Even in normal times, many immigration cases are heard to by executive branch "judges" subject to removal by the Justice Department. Earlier this year, Trump fired numerous executive-branch immigration judges who the administration believed were not on board with its draconian deportation agenda.
The Due Process Clause of the Fifth Amendment mandates that government cannot deprive people of life, liberty, or property without due process. Detention and deportation are obvious severe deprivations of liberty. And there is no exemption for immigrants or non-citizens. During the Founding era, it was generally understood that the Due Process Clause applies even to non-US citizen pirates captured in international waters. If so, it also applies to migrants within the US.
Adjudication by an official subject to being fired or disciplined for making decisions the executive doesn't like is obviously inimical to due process - whether the "judge" is a military JAG officer or a civilian executive branch employee. As the Supreme Court put it in Marshall v. Jerrico (1980), "[t]he Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process." A judge under the control of the executive cannot be genuinely "impartial and disinterested," since he or she has an obvious interest in catering to the preferences of superiors.
Conservatives readily see this problem in areas outside the immigration context, as when executive-branch agencies adjudicate civil penalties for violations of economic regulations. In such cases, they rightly argue there are violations of due process, and of the Seventh Amendment's guarantee of a jury trial in civil cases where significant penalties are at stake. Immigration detention and deportation imperil liberty and property rights at least as much as any economic regulation, and often much more.
Unfortunately, due process is one of a number of areas where the courts have allowed double standards under which immigration restrictions are to a large extent exempt from constitutional restraints that apply to all other government policies. That double standard should be ended. The administration's plan to use military JAGs as immigration judges is a particularly egregious tip of a much larger iceberg.
UPDATE: I have made a few additions to this post.
