Putting military lawyers in charge of immigration courts is problematic—and “unlawful”

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.”

“What you end up with,” Maurer added, “is military officers under federal control who are running civilian courts.”

The former JAGs gamed out several scenarios (see my previous story for more details), but they couldn’t imagine any in which it would be legal for the Pentagon to turn military attorneys into immigration judges, that is, unless Congress were to pass a law that allowed it, or Trump invoked the Insurrection Act, which gives the commander in chief power to deploy military forces within the United States to suppress rebellion or domestic violence.

And if Trump went that route, there would be no turning back, according to Raquel Aldana, a law professor at the University of California, Davis: “The reality is that, once he does, the powers can be unlimited and we are in a military state.”

The Justice Department relaxed its criteria for temporary immigration judges last month to make way for the JAGs, according to the New York Times. Under the new criteria, the department can put “any lawyer” in charge of immigration court for six months. But it is unclear how temporary this arrangement may actually be, because DOJ officials also have the option of extending the judges’ positions “indefinitely.”