The Department of Justice recently appointed 25 temporary immigration judges, two-thirds of whom are military lawyers, or JAGs, to adjudicate civil immigration cases. The Pentagon says it plans to send hundreds more JAGs to help relieve the strain on immigration courts. These unprecedented moves violate federal law and breach a foundational American principle: military power must not be wielded over civilians in domestic affairs.
Immigration judges are typically career civil employees who are appointed by the Attorney General to serve as administrative judges. Assigning JAGs these positions violates the Posse Comitatus Act, a key law that prohibits the military from “executing” civilian laws. Besides being against the law, the appointments are a bad idea. They breach the foundational norm separating military authority from civilian governance. It would be as if active-duty military officers were assigned to serve as tax court judges or administrative law judges, proposals that would immediately raise constitutional concerns.
The plan to reassign hundreds of JAGs also removes them from the military where they are needed to provide critical legal advice, including on the deployment of the National Guard to U.S. cities and the use of lethal force, including in the Caribbean. Despite the Trump administration’s efforts to sideline military lawyers (including firing the top uniformed JAGs in February), the counsel provided by JAGs on complex legal matters is more important than ever. Congress, which has the constitutional authority to make rules for the “Government and Regulation of land and naval forces” should closely scrutinize any effort to hollow out the JAG Corps.
Two Plans to Turn Military Lawyers Into Immigration Judges
The administration has floated two options for reassigning JAGs. One plan was announced by Secretary of Defense Pete Hegseth and involved the use of JAGs serving as a federal military force. Separately, Florida Governor Ron DeSantis announced a plan involving a small number of Florida National Guard JAGs. By regulation, temporary immigration judges are subject to the management and oversight of the chief immigration judge at the DOJ. Still, it is unclear if these newly assigned JAGs will act in an entirely civilian capacity or if they will continue to function under their usual military chain of command. Although many details remain unclear, we have an understanding of the broad outlines of the potential plans, along with the significant concerns they raise about the legality of the JAGs’ assignments and anticipated work.
Plan #1: Assigning Active-Duty and Reserve JAGs as Immigration Judges
The first option, which has already begun, is to reassign active-duty and reserve JAGs to work as immigration judges. News of the plan broke in early September, just days after the DOJ dropped the requirement that temporary immigration judges be either administrative law judges or retired DOJ immigration adjudicators. Now, the DOJ allows “any lawyer” to serve as an immigration judge. This regulatory change skirted traditional notice-and-comment processes that would call for transparency and an opportunity for contemporaneous public comment. Instead, the new rule relied upon comments solicited 11 years ago during the Obama administration. At that time, the DOJ implemented a rule change permitting former immigration law judges and administrative law judges to serve as temporary immigration judges for renewable six-month terms. The Trump DOJ initiative goes much further, short-circuiting the administrative rulemaking process and paving the way for JAGs to be detailed as immigration judges.
This change in defining who is eligible to serve as an immigration judge is not a routine personnel revision, and, therefore, it should be closely scrutinized and subject to traditional notice and comment procedures. After all, allowing any lawyer–including JAGs–to serve as a temporary immigration judge, regardless of their qualifications, affects the due process rights of immigrants appearing before the court, who are no longer assured that the judges hearing their cases are versed in the complex legal specialty of immigration law. Further, although JAGs can serve as military judges presiding over courts-martial, they generally lack immigration law expertise and rarely have adjudicated civilian matters.
Plan #2: Assigning National Guard Members as Immigration Judges
The second reported plan involves calling up National Guard JAGs to work as immigration judges. In July, for example, President Donald Trump and DeSantis (himself a former Navy JAG) reportedly agreed to assign Florida National Guard lawyers to do just that. According to Florida’s Immigration Enforcement plan, these assignments would make only a small contribution to the effort to detail hundreds of JAGs as immigration judges: just nine field-grade National Guard members are suitable for service as immigration judges. In addition, to serve as immigration judges, Guard members would have to be activated and federalized under the command and control of the president, but the only way to do so is under 10 U.S.C. §12301(d), which requires the consent of the Guard member to be activated.
Under either plan, there are significant questions about the legality of the appointments, including whether they violate long-standing laws prohibiting JAGs from serving as civil law enforcement.
Violating the Posse Comitatus Act’s Plain Meaning
The appointment of JAGs to serve as immigration judges violates the Posse Comitatus Act (PCA). A “posse comitatus” is a Latin term used in British and American law to mean a group of people a sheriff mobilizes to suppress lawlessness. The PCA is a criminal law that dates to 1878, and bars any part of the federal military forces from being used as a posse comitatus, i.e., participating in civilian law enforcement. The statute, in full, states:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
Under the PCA, implied authority is not enough; the authority to execute the laws must be “expressly authorized by the Constitution or Act of Congress.” The JAG assignments fall within the PCA ban because immigration judges execute domestic law, and there is no express authorization for military lawyers to serve as immigration judges.
Despite its importance, the term “execute the laws” itself is not defined in statute and remains ambiguous. No case law squarely addresses whether immigration judges adjudicating immigration cases are “executing the law.” Nevertheless, even under a narrow reading of that term, JAGs serving as immigration judges would clearly “execute the law.”
Several decades ago, in United States v. Yunis, the Court of Appeals for the District of Columbia endorsed a leading jurisprudential test for analyzing PCA violations: the PCA prohibits activities that “subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.” The lower court in Yunis provided a more detailed analysis of those terms that the appeals court effectively ratified, defining a regulatory power as one which “controls or directs,” a proscriptive power as one that “prohibits or condemns,” and a compulsory force as one which “exerts some coercive force.” As a result, all of those military actions are prohibited under the PCA as applied to civilians.
Although immigration judges are, by regulation, impartial arbiters of the law, both temporary and permanent immigration judges carry out activities that meet the Yunis standard. Immigration judges decide whether an immigrant has the legal right to remain in the United States or will be deported, and whether to keep someone in custody or release them from detention. While the JAGs serving as immigration judges may be in civilian attire and judicial robes, they are issuing rulings that effectively control the immigrant’s future in the United States, prohibit the immigrant from being released from custody, and coerce the immigrant through deportation orders. Immigration judges don’t just apply the law—they execute it. When a judge orders deportation, that’s not interpretation, it’s compulsion backed by state power. Under the Yunis precedent, that’s precisely what the PCA prohibits.
In August of 1986, then-Deputy Assistant Attorney General of the Office of Legal Counsel (OLC) Samuel Alito analyzed a proposal to assign Army JAGs to serve as Special U.S. Attorneys (SAUSAs) in the DOJ. In considering whether the assignments violated the PCA, Alito broadly interpreted “execution” of the law to encompass “the litigation of civil and criminal cases.” Immigration adjudication and decision-making¾which result in restrictions on liberty and the enforcement of applicable immigration laws that could lead to expulsion from the nation¾fall within this conception. In fact, Alito assumed without further analysis that the litigation of civil and criminal cases constituted “execution” of the law within the meaning of the PCA.
As Alito put it, the PCA was “intended to prevent persons subject to military law and discipline from directing commands to ordinary citizens.” Military lawyers serving as temporary immigration judges would have the ability to wield significant control over the lives of civilians, a power the PCA does not permit.
No Express Authorization
The only exception to the PCA’s prohibition on soldiers serving as civilian law enforcement is where the Constitution or Congress has “expressly authorized” them to do so. The Constitution does not include any express authorization that allows military officers to serve in civilian roles. There are many statutory exceptions to the PCA, but none expressly authorize the use of military lawyers as immigration judges in the DOJ.
The term “expressly authorized” is significant. Its inclusion was debated and discussed for several years before the PCA’s passage in 1878. The House Manager at the time said that inclusion of the word “expressly” was critical to prevent the use of the military where authority is only implied. During the back and forth between the Senate and the House on the PCA’s text, “expressly” was added in the final version, thus “restoring to this bill the principle for which we have contended so long, and which is so vital to secure the rights and liberties of the people.”
The Pentagon itself does not identify any exceptions that would permit assignment of JAGs as immigration judges. Its 2019 instruction governing interpretation of the PCA, titled “Defense Support of Civilian Law Enforcement Agencies,” lists 20 specific exceptions—including assignments as specific as the enforcement of fishery laws—but does not include any exceptions that even arguably include immigration adjudications. Even the so-called assignment statutes—10 USC §§ 806 and 973(b)(2)(B) – which allow military officers to support certain civil functions — are not considered by the military to be exceptions to the PCA. To be sure, the Trump administration could change how it interprets existing statutes and regulations, but such an interpretation is reviewable under the Administrative Procedure Act, and the court can set aside arbitrary or capricious changes that lack a reasoned explanation.
The omission of any reference to assignments to serve as immigration judges is evidence that the Deapartment of Defense does not consider such assignments to be exceptions to the PCA. If DOD doesn’t believe these are express exceptions, why should courts? Indeed, a court reviewing DOD’s newfound interpretation of a PCA exception is likely to apply administrative law principles to scrutinize this 180-degree interpretive turn, reviewing “the validity of [DOD’s] reasoning” and identifying its lack of “consistency with earlier and later pronouncements.”
Of note, in his 1986 OLC memo, Alito did not address whether the Title 10 provisions were an express exception to the PCA, but noted that the legality of using JAGs to carry out certain litigating functions at DOJ depended on certain factual circumstances. According to Alito, serious questions would arise under the PCA if, while assigned to DOJ, the military lawyers functioned under their usual military chain of command, were assigned on a part-time basis, or performed civilian functions along with their regularly assigned military duties (by working at a military installation, for example). Alito wrote that to minimize the risk of contravening the PCA, “military lawyers who are not functioning in an entirely civilian environment should not be used to perform any prosecutorial function that involves direct contact with civilians in a law enforcement context, such as the interrogation of witnesses or a personal appearance in court.”
In sum, the term “expressly” was fought over and included in the PCA’s text as a means to combat future attempts to allow the military to perform civil functions with only implied authority. The Pentagon has never interpreted the assignment statutes as express authorization to circumvent PCA restrictions, nor has it identified any other applicable exception.
Due Process Concerns
When JAGs are assigned as immigration judges, they remain subject to military law and discipline via the Uniform Code of Military Justice (UCMJ). Unlike military judges—who enjoy statutory insulation from command influence under Articles 26 & 37—JAGs assigned as immigration judges lack protections to shield their decisions from outside influence, thus creating an inherent conflict between judicial independence and command obedience.
First, under Article 26 of the UCMJ, only the senior Judge Advocates General of the Military Services may supervise military judges, and no one else may participate in their professional evaluation of their judicial performance. This carveout for military judges helps ensure judicial independence, insulating JAGs from external influence or pressure to decide a specific way. No such protection exists for JAGs serving as immigration judges, leaving them open to outside political pressure to support the administration’s mass deportation agenda. For example, JAGs serving as immigration judges lack any such protections and may well report to civilian bosses. These civilian bosses will have input on their professional evaluations. Imagine a JAG serving as an immigration judge who issues opinions that run contrary to the administration’s political agenda, angering his or her civilian bosses. A negative evaluation can sink an otherwise promising military career, creating an unworkable conflict of interest as JAGs attempt to balance career progression with commitment to due process and the rule of law.
Second, Article 37 of the UCMJ prohibits unlawful command influence of military justice proceedings, thereby ensuring independence and impartiality through the court-martial. Again, no statutory carveout exists to help insulate JAGs serving as immigration judges. Although unlawful command influence protections would not apply in immigration court, the threat of placing the thumb on the scale of deportation from senior officials is real and deeply problematic. Orders from their chain of command would have a high presumption of lawfulness¾only “manifestly illegal” orders must be disobeyed.
In light of the Trump administration’s focus on immigration enforcement and the clear executive branch preference to expedite deportation proceedings, JAGs serving as immigration judges are likely to feel outside pressure to favor the government’s view. They may even receive express pressure to rule a certain way, raising significant questions as to whether immigrants appearing before them will receive a fair hearing consistent with their Due Process rights.
Even the appearance of partiality could have significant consequences. The Court of Appeals for the District of Columbia vacated more than two years of orders in a capital case against a man charged with orchestrating a series of bombing plots for al-Qaeda because the military judge overseeing the case failed to disclose that he had applied for an immigration position at the DOJ. The court found that the application to the DOJ, while serving as a military judge, created a “disqualifying appearance of partiality.” The same could happen here, undermining the administration’s goal of reaching finality.
Sidelining JAGs From Their First Priority
Finally, detailing JAGs as immigration judges takes those lawyers away from critical military work while demanding familiarity with the complex legal field of immigration law.
Since Trump took office in January, JAGs who have served for decades through different administrations, have witnessed their most senior uniformed leaders fired. Meanwhile, in the Defense Department, military lawyers are being sidelined from providing legal advice on operational decisions. The loss of 600 JAGs to immigration courts would be a stunning loss of expertise at a time when military legal advice is vital. With fewer JAGs, there is less candid and non-partisan legal advice, creating an environment that allows legally suspect behavior.
Second, assigning JAGs without immigration experience to serve as immigration judges is unfair to both the JAGs and to the immigrants appearing before the court. Immigration law is a notoriously complex, nuanced, and sophisticated area of law. Although JAGs have expertise in military justice, operational law, and laws of war, immigration law has never been a core specialty or practice area for JAGs. Many JAGs assigned as immigration judges will be reading immigration statutes, regulations, and case law for the first time. While we do not doubt that these military attorneys will do their very best despite the lack of subject matter expertise, immigrants before the court are entitled to competent judges who are well-versed in immigration law.
Conclusion
The unprecedented assignment of “soldiers in robes” to oversee civilian courts blurs the line between military and civilian functions. This intrusion into civilian affairs undermines the public’s trust and confidence in the military¾a hard-earned trust that has been slowly rebuilt since the Vietnam War.
The stakes could not be higher. After all, opposition to military entanglements in civilian affairs was a bedrock principle to the United States’ founding, with the Declaration of Independence lamenting the king’s willingness to “render the Military independent of and superior to the Civil Power.”
This is not about the qualifications or credentials of JAGs. We know that most military lawyers – like most immigration judges – will do their best to remain impartial and ethical under trying circumstances, even without sufficient training and legal protections. But these moves create unnecessary risk.
DOJ should return to its 2014 requirements for temporary immigration judges and require immigration or adjudicatory experience – or both – for temporary immigration judges. To ensure due process for immigrants appearing in immigration court and to protect JAGs from prosecution under the PCA, DOJ should immediately take active duty JAGs off the immigration bench. Finally, the courts must resist any attempt to normalize military participation in civilian adjudications. Preserving this line is essential not only for legal compliance but for maintaining the trust that underpins a healthy civil-military balance.
