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Trump Drags JAGs Into Immigration Court
Possibly illegal move “makes as much sense as having a cardiologist do a hip replacement.”
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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