In yet another blow to the Trump administration’s efforts to rein in the lawless immigration bureaucracy, the U.S. Supreme Court on Friday DENIED an emergency request for a stay in a high-stakes case involving immigration judges.
At the center of the dispute is whether immigration judges, who operate under the Executive Office for Immigration Review (EOIR) and ultimately answer to the Attorney General, can be treated like autonomous political actors rather than executive branch employees.
The case was brought by the National Association of Immigration Judges (NAIJ) and challenges a policy that bars immigration judges from speaking publicly in their personal capacities about immigration or the agency that employs them, arguing it violates their First Amendment rights.
The Executive Office for Immigration Review (EOIR) oversees the operation of the United States immigration courts. EOIR employs about 750 immigration judges (IJs).
The Trump administration argued that under the Civil Service Reform Act of 1978 (CSRA), the judges must pursue claims through the Merit Systems Protection Board (MSPB) rather than federal court.
The CSRA was explicitly designed to prevent precisely this type of judicial end-run, funneling employment disputes through the Merit Systems Protection Board (MSPB) and the Office of Special Counsel before any court review could occur.
However, the U.S. Court of Appeals for the 4th Circuit questioned the “continued vitality” of this scheme after President Trump fired the Special Counsel and an MSPB member, leaving the board without a quorum.
The high court refused to intervene.
The underlying lawsuit seeks to further insulate judges from presidential oversight, essentially rendering them untouchable bureaucrats accountable to no one.
By denying the stay, the Supreme Court has allowed this dangerous theory to continue advancing through the courts.
The Trump administration warned the Court that allowing the lower-court ruling to stand—even temporarily—would cause irreparable harm to the president’s constitutional authority to supervise executive officers and faithfully execute immigration law.
Immigration judges are not Article III judges. They are DOJ employees. They do not have lifetime appointments. And yet, under Biden-era policies and activist litigation, they are increasingly treated as if they operate outside the chain of command altogether.
This is precisely the kind of “fourth branch of government” abuse President Trump has repeatedly vowed to dismantle.
More from SCOTUSblog:
The Supreme Court on Friday turned down a request from the Trump administration in a dispute over a policy limiting speaking engagements by immigration judges. A federal appeals court had sent the challenge by a group representing the judges back to a federal trial court for more fact-finding on the independence of the administrative scheme set up to deal with claims by federal employees, and – in a brief unsigned order – the justices left that ruling in place. However, the court also left open the possibility that the government could return to the Supreme Court to seek relief “if the District Court commences discovery proceedings” before the justices rule on the government’s petition for review of the lower court’s decision. Law professor Stephen Vladeck, who closely tracks cases on the court’s docket, stated on social media that Friday’s order was the Trump administration’s “first real loss” at the Supreme Court since April of this year.
At the center of the dispute is a policy that the National Association of Immigration Judges describes as barring its members “from speaking in their personal capacities about immigration and about the agency that employs them.” The NAIJ went to federal court in Alexandria, Virginia, to challenge the policy on behalf of their members, arguing that it violates the First Amendment.
U.S. District Judge Leonie Brinkema threw out the group’s case, holding that under the Civil Service Reform Act the NAIJ was required to pursue its claims through the administrative process.
The NAIJ went to the U.S. Court of Appeals for the 4th Circuit, which sent the case back to Brinkema. It pointed to recent actions by President Donald Trump that, in the court’s view, “call into question” whether the administrative scheme for claims by federal employees remains independent of the president – for example, Trump’s firing of both the Special Counsel, who would initially consider the group’s claims in the administrative process, and the chair of the Merit Systems Protection Board, to which the Special Counsel could refer the claims. And if the administrative process is not independent, the court of appeals suggested, Congress may not want to require claims by federal employees to proceed through that scheme. The 4th Circuit therefore directed Brinkema to find the additional facts necessary to consider “the continued vitality of the adjudicatory scheme.”
U.S. Solicitor General D. John Sauer came to the Supreme Court on Dec. 5, asking the justices to block the 4th Circuit’s ruling from going into effect after that court refused to do so. Sauer told the court that “‘unelected judges’ do not get ‘to update the intent of unchanged statutes if the court believes recent political events … alter the operation of a statute the way Congress intended.” Moreover, Sauer added, the 4th Circuit’s ruling had already created “destabilizing uncertainty” that could “extend beyond federal personnel actions” to other “administrative-review schemes that preclude district-court jurisdiction” – for example, the Federal Trade Commission.
Sauer urged the court to issue an administrative stay – a temporary order that would pause the 4th Circuit order to give the justices time to consider the Trump administration’s request. Chief Justice John Roberts, who handles emergency appeals from the 4th Circuit, granted that request on the same day that the government made it.
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