U.S. Secretary of Defense Pete Hegseth plans to involuntarily mobilize military lawyers for duty as immigration judges and to serve as government counsel in cases involving detained migrant children, according to Bloomberg. The Department of Defense is first seeking volunteers, but if too few people step forward, Hegseth has authorized involuntary activation. These Reserve judge advocates will be assigned cases involving unaccompanied children being held in custody by the Health and Human Services (HHS) Office of Refugee Resettlement in detention and deportation matters.
If Bloomberg’s reporting is correct, this decision by Hegseth is simply wrong. Federal law specifies that involuntary mobilization is to be used for war or national emergencies. These authorities have been most recently relied upon to activate, and in many cases deploy, Reservists in support of the wars in Iraq and Afghanistan. Even in light of the broad deference given to the executive branch to respond to a variety of crises, using involuntary mobilization of Reserve military lawyers to prosecute cases against children in HHS custody, or to fix this administration’s self-inflicted shortage of immigration judges, makes a mockery of the intent and importance of the mobilization statutes to the United States’ defense.
The proposal is fundamentally unfair to both the JAGs, who have no training or experience in immigration law, and to the immigrants involved in legal proceedings, who are entitled to meaningful due process. It would also wrongfully spend money appropriated for military activities for other governmental and political purposes completely unrelated to military actions. Finally, the second and third order effects of the plan would have near-term and long-term impacts to the perceptions of the U.S. armed forces, particularly the military’s Reserve components.
An Abuse of Authority
Members of the military’s Reserve components can be called to active duty under several provisions of Title 10 of the U.S. Code, which governs actions by the Department of Defense and military services. Reservists can voluntarily serve on active duty for specified periods of time under 10 U.S.C. 12301.
Reservists can be involuntarily called to active duty only under the following conditions for specific purposes and periods of time under the law:
- For service on active duty for a war or national emergency declared by Congress (or otherwise authorized by law) for the duration of the war plus six months. 10 U.S.C. 12301.
- For service on active duty in a time of national emergency declared by the president (or when otherwise authorized by law) for no more than 24 consecutive months. 10 U.S.C. 12302.
- For service to augment the active forces (or perform other specified duties not relevant here) for no longer than 365 consecutive days. 10 U.S.C. 12304.
Reservists have civilian as well as military jobs, and are often some of their civilian employers’ best employees. The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides civilian job protections when they are called to active duty.
The U.S. government counts on employer support for the country’s Reservists. Employers cannot discriminate against employees who are on reserves and are required to hold their jobs for them during their military service. Although these are strong legal requirements, Reservists and the military services depend on the good will of employers to support them as they perform their military duties. Misuse of the military through involuntary mobilization for non-military activities will destroy the goodwill of employers to support the country’s military services now and in the future when Reservists are needed to participate in legitimate military actions in defense of the country.
Most Reserve judge advocates who were called up for active duty during the wars in Iraq and Afghanistan served on voluntary orders. The overwhelming majority enjoyed the enthusiastic support of their employers, many of whom even made up the difference between their civilian and military pay. Relatively few were involuntarily activated for these critical wartime duties. The proposed use by Hegseth of involuntary mobilization for purposes wholly unrelated to military actions is an abuse of the authority given to him. It will undermine the purpose and importance of Reserve Component military service.
If implemented, it would also adversely impact morale and the ability to attract and retain qualified Reserve judge advocates for the future. They signed up to continue their military service part-time and to be ready to be activated and deployed when needed. They did not sign up to serve as immigration judges or government counsel in immigration proceedings. If, as the Bloomberg article suggests, these judge advocates will be employed in their “home area,” their use as prosecutors or judges in their communities could undermine not only their own personal relationships but also their community’s respect for the military.
The Reserve judge advocate force is a critical trained resource for the active-duty military and the nation’s defense. It is not a fungible source of generic legal services for the government to use when it wants. The country cannot squander this valuable national resource for short-term, non-military ends.
