DOJ Memo Draws Doubts on Military Lawyers as Immigration Judges

The Trump administration’s legal opinion backing the use of military lawyers as immigration judges is drawing scrutiny from legal scholars who say the move represents an unprecedented expansion of the executive branch’s authority.

The advisory opinion found that detailing hundreds of military lawyers, including with the Judge Advocate General’s Corps, to be temporary immigration judges wouldn’t violate the Posse Comitatus Act, a 19th century law aimed at keeping the military separate from civilian law enforcement. Assistant Attorney General T. Elliot Gaiser, who leads the Office of Legal Counsel, penned the memo.

But the opinion is light on the Justice Department’s plans to ensure the lawyers operate completely outside their military chain of command while serving as immigration judges. The limited analysis on how the policy squares with Posse Comitatus could invite legal challenges from immigrants whose futures in the US hinge on rulings from these judges, former military lawyers and other legal analysts say.

“It’s military in civilian government, and people in the courtroom aren’t going to get the independent adjudication that they warrant,” said Rachel VanLandingham, a professor at Southwestern Law School and a former JAG in the Air Force.

The opinion, which follows firings of immigration judges, was issued more than two months after the Justice Department agency that oversees the immigration courts asked the Pentagon to detail up to 600 lawyers to serve as temporary immigration judges for six-month stints. The detailed judges could arrive in 150-person cohorts, and their terms could be renewed, according to the opinion.

A DOJ spokesperson declined to share additional details beyond what’s included in the memo, including that the military lawyers are serving as immigration judges on a full-time basis and that all judges are supervised by civilian DOJ officials.

‘Incredibly Novel’

Gaiser argued in the opinion that military lawyers aren’t running afoul of Posse Comitatus because they aren’t being “used” as members of the military while serving as immigration judges. Several law professors, including former military lawyers, called that position unprecedented.

The idea that a military lawyer isn’t a member of the military when serving as an immigration judge “is incredibly novel and cuts against a lot of legal precedence,” said Tony Ghiotto, a teaching professor of law at the University of Illinois who has worked as a judge advocate.

The question of whether the arrangement violates the Posse Comitatus Act “isn’t an easy no or easy yes,” said Mark Nevitt, an Emory University law professor and former Navy JAG and tactical jet aviator. “I think this is a case of truly first impression for this country.”

Gaiser’s opinion also justifies the use of military lawyers as federal prosecutors, a move law professors said is more established. But Gaiser doesn’t address in his decision how Posse Comitatus applies to a judicial rather than prosecutorial role, Nevitt said.

A 1986 opinion from Samuel Alito, then deputy assistant attorney general for DOJ’s Office of Legal Counsel, justified using military lawyers as special assistant US attorneys without violating the Posse Comitatus, which Alito said at the time was “intended to prevent persons subject to military law and discipline from directing commands to ordinary citizens.”

Gaiser suggested in his opinion that potential issues with the statute could be partially addressed by detailees refraining from wearing military uniforms during their time as immigration judges. This alone, however, doesn’t necessarily provide legal protection from potential violations, said Victor Hansen, a professor at New England Law Boston and a former Army JAG officer.

“If that’s all you had to do to skirt the PCA, then we could send JAGs or military policemen, put civilian uniforms on them, and tell them today they’re working for the local sheriff and Posse Comitatus is not a problem,” said Hansen, who added that he questioned whether the memo was “an accurate articulation of what the law is.”

The opinion also says these detailed judges would be “supervised entirely” by civilians. This “waters down” the Posse Comitatus violation, but it doesn’t remedy it, said William Banks, a Syracuse University law professor who studies constitutional and national security law.

“They’re still military lawyers and they’re still engaged in law enforcement, whether they have supervisors or not,” he said.

Legal Challenges

The use of military lawyers in these roles is likely to draw challenges from immigrants facing deportation in their courtrooms, law professors said.

VanLandingham said that the practice of military lawyers serving as immigration judges may not automatically be a Posse Comitatus violation, but an active military status alone could be enough for an immigrant to challenge a deportation ruling.

“If they get an adverse ruling from an immigration judge that turns out to be someone on active duty, then they’ll have standing to contest it as a due process violation,” VanLandingham said.

Challenges under administrative law may also be an avenue, law professors said. The administration eliminated experience requirements for temporary immigration judges by reviving a rule from more than a decade earlier without soliciting updated comments.

“That strikes me as short-circuiting the normal public comment period,” Nevitt said.

Former immigration judges raised concerns at an event in Washington earlier this month that the temporary judges haven’t received sufficient training or support in immigration law and judging before taking the bench.

The Trump administration has fired dozens of immigration judges, who are Justice Department employees and not part of independent courts, even as the immigration courts face a backlog of nearly 3.5 million cases, according to data collected by a Syracuse University research center.