Trump Drags JAGs Into Immigration Court
Possibly illegal move “makes as much sense as having a cardiologist do a hip replacement.”
THE IMMIGRATION SYSTEM in the United States is complex, but at the most basic level its purpose has been to answer two simple questions: who to let into the country and who to keep out. Donald Trump’s focus has been largely on the latter question—on using government infrastructure and agencies to remove immigrants as quickly and haphazardly as possible.1 His latest move offers more of the same, and its legality is being questioned by lawyers watching in frustration.
The Associated Press reported last week that the Department of Defense (DoD)—yeah, we’re not calling it the Department of War—will be lending up to 600 military lawyers, known as judge advocates general or JAGs, to the Department of Justice, where they will act as temporary immigration judges. The first batch of 150 attorneys chosen for the assignment is expected to be sent over by next week.
Corey Lewandowski, an old Trump hand who is currently a senior adviser to the Department of Homeland Security, described the underlying goal in typically blunt, Trump-administration fashion.
“Pete Hegseth approves 600 military lawyers as temporary immigration judges. I see more deportations of illegal immigrants in the near future,” he tweeted.
In a statement, Ben Johnson, the executive director of the American Immigration Lawyers Association (AILA), excoriated the decision. “Expecting fair decisions from judges unfamiliar with the law is absurd,” he said, adding that “this reckless move guts due process.”
“In this latest destructive move to undermine the immigration courts, the Trump administration is reviving a long-abandoned rule to allow temporary immigration judges with no background in immigration law,” Johnson said. “While DoD attorneys may be well suited to handle military matters, immigration law is entirely different and exceptionally complex. It makes as much sense as having a cardiologist do a hip replacement.”
Immigration lawyers and legal experts who spoke to The Bulwark say the lawyers’ secondment is on a flimsy legal footing.
“It actually might be illegal,” said Charles Kuck, an Atlanta-based immigration lawyer who has battled the Trump administration on some of their high-profile deportation efforts. “There’s a provision that allows military lawyers to work in certain areas, but this is not one of those areas, and it certainly doesn’t let them be judges.”
He added that the regulation does say military lawyers can work on civilian cases, but it’s very specific about when they can do so. He also said the move would run afoul of the Posse Comitatus Act, the federal law prohibiting the use of troops for domestic law enforcement. A California judge ruled this week the Trump administration already violated the Posse Comitatus Act in Los Angeles during its needless military escalation there in response to anti-ICE protests earlier in the summer.
And as three distinguished retired JAG officers wrote in The Bulwark back in July, when the idea was first floated, “The prospect of JAG officers donning judicial robes to preside over immigration hearings is particularly disturbing considering the conflicts of interest that can arise when JAGs mix military and civilian employment.”
Shock: Firing Immigration Judges Leads to … Needing More Immigration Judges
The interdepartmental lawyer transfer comes after the Trump administration fired or otherwise forced out 100 immigration judges—people serving in the exact roles the DoD lawyers are being sent to take up. There is a staggering backlog of 3.4 million immigration court cases, a number that has only grown in recent years. So why get rid of the people working to clear it?
“One of the problems is Trump didn’t like the way they ruled, so what he’s looking for is controlling the way they rule,” Kuck said. But this could lead to problems Trump might not anticipate. “I’m not sure he can control how military lawyers rule. They don’t report to the attorney general, and the DoD doesn’t fire lawyers,” he added.
Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, sought to explain what these military lawyers are in for and just how complicated immigration law is.
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“Fundamentally, immigration law is as complex as tax law and more complex than criminal law,” he told me.
Reichlin-Melnick, like Kuck, said these military lawyers are often good, straightforward people—they’re just not equipped to do the job, especially under the heightened pressure for removals they will undoubtedly be feeling. With no experience in immigration law, Reichlin-Melnick said, “they’re not qualified to do this.”
It is unclear how the DoD will backfill these roles, but the JAGs are being pulled from across active-duty services, the National Guard, and the reserves, the Washington Post reported, noting that there are thousands of lawyers serving on a part-time basis in the military reserves.
Another problem created by the impromptu reassignment, Reichlin-Melnick pointed out, is the matter of who is going to be available to help these lawyers with their caseload. Currently, there are two judges for every one support staff. That ratio will balloon with the addition of hundreds of novice judges.
“It’s a pretty high ratio of support staff, which tells us we need hundreds of staff to go with 600 judges,” Reichlin-Melnick added. “Who helps write the opinions? They would have atrocious productivity. Judges are usually assigned to experienced clerks to help them learn on the job. If you don’t have support staff, you’re not going to be able to do this.”2
Vanessa Cárdenas, the executive director of America’s Voice, an immigration advocacy organization, told me the move is an obvious effort to expedite removals, as Lewandowski suggested approvingly, not a good-faith effort to process more cases. She also said it is alarming for this move to come after Congress appropriated billions of dollars for DHS to erect a more muscular deportation system.
Both of these parts of the deportation machine are being rapidly built out, and similar complications are emerging from both sides. I wrote in a previous issue of the newsletter that a massive hiring spree of ICE agents could only happen if hiring standards were collapsed or removed entirely. Similarly, the decision to reassign hundreds of military lawyers to become temporary immigration judges comes after the Justice Department last week lowered requirements for the latter role, NPR reported. The specific requirement they removed? Having any prior experience with immigration cases.
“In the context of getting so much money to stand up facilities for ICE detentions and deportations, now they’re getting hundreds of lawyers with no experience in immigration policy to make life-and-death decisions on people who are contributing and essential to our economy, which is horrifying,” Cárdenas warned.
The exceptions—the times when the Trump administration has noticeably shown interest in admitting anyone into the country—have been so rare that you can probably count them on one hand. Remember the Afrikaners?
If, upon hearing this, your mind doesn’t immediately turn to the possibility that shoddy AI systems are going to be used to draft these opinions, then you probably aren’t thinking darkly enough.
“Expecting fair decisions from judges unfamiliar with the law is absurd,” he said, adding that “this reckless move guts due process.”
trump et al are not looking for fair decisions, they are looking for deportations and to eventually move all non-citizen trials to military tribunals. His purpose is to get Americans used to the idea of the military as judge and jury and he expects them to rule to deport everyone that comes before them. Thank you btw for NOT calling it the "war' thing which is juvenile just like Hegseth.
Yeah I know one of those immigration court judges who got DOGEd last spring. He’d been a judge for close to 25 years. But hey some JAG can just replace this experienced judge. Sure