DOJ requests Supreme Court involvement in dispute over immigration judge free speech

On Friday, the Trump administration filed an urgent appeal with the Supreme Court regarding a case about the free speech rights of immigration judges, raising potential consequences for federal employees nationwide. The current request does not seek a decision on free speech itself. Instead, it asks the justices to overturn a lower courts decision allowing the lawsuit to move forward in a federal district court. This procedural question could affect other federal employment cases, and the Supreme Courts emergency ruling may determine the proper forum for these disputes.

Congress has created a specialized board to handle certain federal employment matters, and Solicitor General D. John Sauer warned that bypassing this process could create widespread disruption. In the filing, Sauer wrote, Only this Court can stop the expanding uncertainty affecting numerous cases. He pointed out that lower courts have already cited the disputed ruling in decisions unfavorable to the administration, including a recent case requiring AmeriCorps to reinstate laid-off staff. The instability caused by the Fourth Circuits approach is already becoming evident, he added.

The litigation originated from a policy on immigration judges free speech, particularly speeches related to their official duties. Immigration judges, who belong to the executive branch, decide on deportation cases. While previous policies existed, the version at issue was introduced by the Biden administration in 2021 and required judges to seek prior approval for certain public comments. The National Association of Immigration Judges had challenged earlier policies and contends the 2021 rules violate the First Amendment. A spokesperson for the group did not immediately comment on the appeal.

A federal district court initially ruled that the case should be handled by the Merit Systems Protection Board (MSPB), as federal law requires. However, an appeals panel later instructed the district judge to reconsider after noting that recent actions by the Trump administration, including firing an MSPB member, raise serious questions about whether the board is functioning properly. While the case was ongoing, Trump also dismissed the U.S. Special Counsel overseeing whistleblower protections under the same law.

The full federal appeals court refused to revisit its decision in a 9-6 vote. Circuit Judge J. Harvie Wilkinson, appointed by President Reagan and among the dissenters, warned that the ruling creates significant risks that only the Supreme Court can address effectively.

Fridays appeal is the Trump administrations 32nd emergency petition to the Supreme Court since returning to office, reflecting concerns about what it views as lower courts exceeding their authority.

Author: Noah Whitman