Bluesky

On Tuesday, the AP reported that the Trump administration has decided to deploy 600 military lawyers—judicial advocate generals or “JAG” officers—to work at the Department of Justice as immigration judges. The order, approved by Secretary of Gender Binaries Pete Hegseth, is yet another violation of the Posse Comitatus Act, which is supposed to prevent the president from using the military to engage in domestic law enforcement. It might not seem as big as Trump’s other violations of the Posse Comitatus Act—namely, sending federal troops to Los Angeles and DC to pick up trash and racially profile people who don’t look white—but make no mistake, this move is yet another step toward Trump’s authoritarian imposition of martial law. 

The idea is not legal, but when has that stopped the Trump administration before? The Supreme Court will most likely find some way to say hiring military officers as immigration judges is totally cool. It will be relatively easy for the court to do so, because the hiring and oversight of immigration judges is already one of the most broken things in our entirely broken immigration system—and this move takes advantage of that.

Immigration judges are not “judges” in the common sense of the word. They’re not like federal judges who are appointed by the president and confirmed by the Senate. They’re not like state court judges who are appointed by a governor, or elected by the people. Immigration judges are employees of the Department of Justice, hired by the attorney general, who has broad discretion over whom they hire and why. Depending on the administration, the hiring process can be very competitive, with only the “best” immigration lawyers elevated to the rank of judge, or the process can lead to a mouth-breathing Stephen Miller acolyte getting the job.

Once they have the job, oversight is minimal and standards are nonexistent, meaning that each judge has enormous autonomy—and power. If you’re an immigrant facing a removal hearing, your chance of getting deported has more to do with the random immigration judge you draw than with any objective factor about your case. The Transactional Records Access Clearinghouse (TRAC) at Syracuse University collects and publishes large data from federal agencies. Last year, it published a judge-by-judge breakdown of asylum decisions, and you’ll see that the judges are all over the map. Some judges reject over 95 percent of asylum applications. Some judges approve over 85 percent of such cases.

Unfortunately, many of the more reasonable judges are probably gone. Trump has removed or forced into retirement over 100 of the only 700 available immigration judges since he took office. Even before Trump showed up, the system was in crisis, with those few hundred judges handling over 3.5 million immigration cases.

Trump’s deployment of JAG officers could be seen as an attempt to make up for the shortfall in immigration judges, but it’s a shortfall exacerbated by his own actions. JAG pumps out highly skilled and well-educated attorneys, but none of them are going to be experts in immigration law. Few, if any, of them will have ever even been to an immigration removal hearing, much less presided over one. Even if these lawyers come over with the best of intentions (and I have some reason to hope that military lawyers will at least have better intentions than most of the detritus masquerading as lawyers in the Trump orbit), they’re not going to be qualified for their new jobs.

Whether or not the new judges know what they’re doing is a critical question, because these people functionally wield the power of life or death over asylum seekers, and their judgements are usually final. Once a judge makes a decision, the possibility for review by real federal judges varies greatly. In some regions of the country, federal appellate courts are allowed to review decisions made by immigration judges, but in other regions they are not. That means that in entire parts of the country, immigration judge decisions cannot be double-checked for constitutional purposes.

The power these judges have over immigrants is almost certainly about to expand. One of the most important Supreme Court cases in this upcoming term involves the Trump administration’s attempt to make immigration judge decisions non-reviewable, nationwide. The case is called Urias-Orellana v. Bondi, and it’s an asylum case where the immigrant plaintiff, Douglas Humberto Urias-Orellana, actually lost already. The First Circuit Court of Appeals reviewed the case, and confirmed that the immigrant should lose (I don’t think Urias-Orellana should lose, but I’ll tell you more about that in my upcoming Supreme Court term preview, out in early October). But that loss wasn’t good enough for the Trump administration, which asked the Supreme Court to review the case again for the express purpose of telling the First Circuit it’s not allowed to review appeals from people who lose asylum cases.

So when Trump tries to install military lawyers as immigration judges, he also wants to make these militarized hearings final, without the ability of real judges to review them.

Getting rid of judicial review adds even more unfairness to the system, because immigrants are prosecuted by an attorney from the Department of Homeland Security, but their defense lawyer… does not need to exist. Immigrants are entitled to a lawyer, but the government does not have to provide one to them. People facing removal hearings either pay for a lawyer out of pocket, or rely on the charity of others or pro bono immigration defense programs. That’s because we classify removal and deportation as a civil penalty, not a criminal one. There’s no constitutional requirement to provide the defendant with a lawyer if the penalty is only civil in nature. Facing banishment from the country and rendition back to a place where you could potentially be tortured or killed does not give you a constitutional right to an attorney.

You’ll note that Trump is not deploying 600 highly trained JAG attorneys to defend asylum seekers for free. Only real heroes do that work. Indeed, one of the reasons Trump has been bullying large law firms is because their pro bono immigration defense programs often provide asylum seekers with the only lawyers they are able to get. When a law firm capitulates to Trump, what it is often doing is agreeing to redeploy its pro bono efforts away from worthy efforts like immigrant defense towards whatever pet project Trump thinks should be entitled to free representation.

The entire immigration hearing process needs to be reformed. There is no part that works fairly or matches even a high-school notion of due process. We need thousands more well-trained immigration judges who are appointed with some level of congressional oversight. We need objective standards for adjudication so that people’s fates are not based on the random turns of the case-assignment wheel. We need immigrants who are represented by fully trained lawyers, provided by the government. And we need judicial review for edge cases where an immigration judge may have gotten it wrong, or where a Trump judge may have flagrantly violated an immigrant’s constitutional and human rights.

Unfortunately, only one political party is working on reforming the system, and it is the Republicans. At the behest of people like Trump and Miller, they are trying to take away what scant due process is left in the system and turn immigration proceedings into a fully perfunctory step on the way to sending people to concentration camps. The lack of immigration judges has been a well-known problem literally for decades, but it’s Trump who is (illegally, of course) “doing something” about it, by militarizing the system.

Democrats, as always, remain scared of their own shadows and of appearing “soft” on immigration. Despite numerous opportunities to reform this mess during both the Obama and Biden administrations, they largely left it alone. They did not fire the most anti-immigrant judges when they had a chance, nor did they go on a spree of hiring more fair and open-minded people. Both Obama and Biden tried to handle the case overload by declining to prosecute all but the most serious offenders, but that was always a Band-Aid solution, one that was designed to make them look “tough” on “the bad immigrants” but did nothing to ameliorate the suffering of millions still caught in the system. Instead, it just left immigrants vulnerable whenever the next racist Republican administration inevitably reclaimed power.

Counterintuitively, the best thing Democratic lawmakers could do to reform the system would be to reclassify deportation as a criminal penalty. Doing so would force removal proceedings to adhere to all of the normal constitutional protections of due process, rights to attorneys, and judicial review. And Democrats could probably still spin it as being “tough” on immigrants, which is all they and their pollsters care about. Anti-immigrant voters would probably fall for it, because “criminalizing” removal sounds vicious and these xenophobic jackwads rarely read the fine print.

Of course, that idea is figuratively playing with fire. It’s a legal workaround to a long-term policy problem that does not address the fact that asylum seekers are maligned and scapegoated, and the change would potentially open up a new vector of attack against them. But in my view, when you really understand what most asylum seekers are facing if they are turned away, deportation is a severe criminal penalty. For some, it’s a death sentence. If calling it a “criminal penalty”—instead of using legal mumbo-jumbo to mask what we’re really doing to people—gets immigrants the legal help and constitutional protections they deserve to fight this deprivation of human rights, so be it.

I’d like to hope that the infusion of military personnel into immigration removal hearings wakes people up to the entire fakakta process. This is already one of the worst things we do. Trump isn’t breaking it. He’s exposing how broken it already is, and using the shards we’ve left lying around as weapons against defenseless people.