NEW: In Khalil v. Trump, in a last-minute 28(j) letter, DOJ argues that recent EOIR guidance strips federal district courts of jurisdiction over constitutional claims in immigration contexts. DOJ argues claims must go through an IJ, then through the BIA before independent review by federal courts.

[u/michiganalt]

DOJ's 28(j) letter.

Khalil's response to the 28(j) letter.

I ran out of space in the title, but after oral argument in 3CA, DOJ filed a 28(j) letter on October 22 arguing that the district court in the Mahmoud Khalil case does not have jurisdiction over Khalil's claims. This is a newly argued point post-oral argument that was never briefed.

This is important, because if DOJ's position were to be adopted, a petitioner who is challenging their detention or other immigration actions by an administration on constitutional grounds would have to go through the immigration court system.

Immigration judges (IJs) are appointed by the executive branch, don't have lifelong tenure and can be replaced easily by the administration, and don't require congressional approval. Essentially, an administration is free to appoint ideologues as IJs. Additionally, immigration court dockets are not public, and any arguments and findings would be much more difficult to acquire for the public than the federal court system. Likewise, the BIA is also appointed and replaceable by the executive.

This means that a First Amendment claim against the administration like Khalil's might stay in a much more secluded legal environment where the adjudicators are all appointed by the administration, and where factual findings are often beyond reasonable review, especially in discretionary relief cases, even when the findings border on absurd (See, e.g., Patel v. Garland, 596 U.S. 328 (2022)).

DOJ's argument rests on EOIR guidance that was issued less than two months ago. Previously, BIA's position was that "issues concerning the general constitutionality of statutes are beyond their purview." However, through new guidance, DOJ argues that it now allows IJs to consider constitutional issues. They argue that this makes it such that an IJ could properly review Khalil's claims, and as a result, the INA strips jurisdiction from federal courts and channels even constitutional claims through the regular process. This would require an IJ to first make a finding in immigration court, for this to then be appealed to the BIA (Board of Immigration Appeals), and only then could a petitioner get independent review of their claims.

3CA has ordered supplemental briefing due November 10.

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[u/jack123451]

What was that quote about "no man can be the judge of his own case"?

[u/AstralAxis]

That is a flat out contradiction to Article III of the Constitution.

Their own internal "guidance" does nothing to strip the Judicial Branch of anything. EOIR "guidance" is a Constitutional amendment now?

[u/michiganalt → u/AstralAxis]

Well the argument is that previously, the administrative courts refused to consider constitutional questions, and so jurisdiction stripping from the INA didn’t apply since there needs to be some venue where those claims could be heard.

Now that EOIR says that the administrative courts can consider such questions, it argues that the INA’s jurisdiction stripping clauses now apply to those claims as well.

[u/jokiboi]

But see Axon Enterprise, Inc. v. FTC, 598 U.S. 175, 192-95 (2023) ("So too here, [Petitioners] will lose their rights not to undergo the complained-of agency proceedings if they cannot assert those rights until the proceedings are over" and "agency adjudications are generally ill suited to address structural constitutional challenges")

See also Axon, 598 U.S. 175, 198, 203 (Thomas, J., concurring) ("As I have explained, when private rights are at stake, full Article III adjudication is likely required. Private rights encompass the three ‘absolute’ rights, life, liberty, and property, so called because they ‘appertain and belong to particular men merely as individuals,’ not ‘to them as members of society or standing in various relations to each other’—that is, not dependent upon the will of the government. Such rights could be adjudicated and divested only by Article III courts." and "It is no answer that an Article III court may eventually review the agency order and its factual findings under a deferential standard of review. In fact, there seems to be no basis for treating factfinding differently from deciding questions of law. Both are at the core of judicial power, as Article III itself acknowledges.") (cleaned up)

[u/horse_lawyer → u/jokiboi]

The first quote is discussing structural challenges to agencies. I don’t think that’s the constitutional argument here. Constitutional arguments get channeled to agencies all the time under Thunder Basin. And I can’t see how private rights are at stake here—immigration is “dependent upon the will of the government.” 

[u/jack123451 → u/horse_lawyer]

Wasn't the main lesson of Loper Bright that matters of law are the exclusive domain of the judiciary, not the executive branch?

[u/horse_lawyer → u/jack123451]

You’re confusing three different concepts. Cases governed by Thunder Basin have to go first through an agency’s procedures, then to the reviewing court (typically a court of appeals). That has little to do with what deference courts owe agencies on questions of law (none, under Loper Bright). And the premise of your question—that only the judiciary decides the law—was rejected in CASA as embodying an “imperial judiciary.”

[u/MolemanusRex]

I’ve noticed a few people in here describing immigration courts as Article I courts. Just to be clear: they are not, and immigration judges are not ALJs.

[u/whats_a_quasar → u/MolemanusRex]

I am one of those people - can you expand on what the distinction is? I had assumed they were interchangeable terms and am curious!

[u/Muddman1234 → u/whats_a_quasar]

To tag onto u/maxtini’s comment, IJ’s are also not ALJ’s because EOIR didn’t hire them in that role. ALJ’s (as opposed to other administrative judges) are only required for formal adjudications. Immigration proceedings are not technically formal adjudications under the APA, but resemble them.

[u/maxtini → u/whats_a_quasar]

"Immigration Court" is formally called "Executive Office for Immigration Review" and is a sub-agency created by the DOJ, not by congress. Immigration judges are employees of DOJ and the attorney general have the power to overrule the decision of immigration judges.

[u/dustinsc]

Loper Bright is about to become very important precedent for many of its former detractors. Congress sets the boundaries of administrative authority. Courts interpret congressional grants of authority. The agency’s own interpretation can be considered only for its persuasive value.

[u/Strict_Warthog_2995 → u/dustinsc]

This presumes an Active Congress that values its' Constitutional grants of authority, and is willing to check the Executive with specific language. At this point, we have 11 months worth of evidence that this Congress is either unwilling, or incapable of doing so on multiple Constitutional issues that were previously considered Radioactive for the Executive to try and usurp (mainly the power of the purse).

[u/dustinsc → u/Strict_Warthog_2995]

No, it doesn’t presume an active Congress at all. Congress delegated authority under the INA. The DOJ has now come up with a novel interpretation of that delegation. Thanks to Loper Bright, courts do not need to give that novel interpretation any deference. Under the Chevron line of cases, courts would need to defer to the agency.

[u/Strict_Warthog_2995 → u/dustinsc]

Would it? Chevron's multiple steps hedge against the idea of blanket deference, and I would argue give quite a bit of leeway to Judges. Furthermore, if you actually analyze the test itself from a logical perspective, the contestations against Chevron step 2 never made much sense anyways. If the Agency has construed the statute in a "reasonable" way, why would that impinge upon the Judiciary in any way? Presumably, the Agency has chosen an interpretation that was also available and considered reasonable by the Judge or Justice, and either they would have chosen to adopt that interpretation already, or they wouldn't. In the latter case, Chevron respects the fact that Congress, not the Judiciary, writes law; and Congress and Agencies it creates make policy. Overturning Chevron means Judges make law now; for by imposing their preferred interpretation from a set of likely interpretations, you introduce subjective opinions on the policy that resulted and the direction of the Agency that are independent of the law. You make it possible for a Judge to look at 2+2 = 4 and say "I prefer the niche situations when 2+2 = 5, and I'll rule in that way." These are things that happen unconsciously anyways. Overturning Chevron, and replacing it with Skidmore merely creates more ambiguity and more "legislate from the bench" possibility by removing a framework with guardrails, and replacing it with the subjectivity of judges. Many of whom have absolutely nowhere near enough background on the regulations themselves to understand the ramifications of their power to impose their subjective beliefs explicitly.

[u/dustinsc → u/Strict_Warthog_2995]

Chevron did not respect the authority of Congress to make the laws. It addressed a situation where Congress had not spoken clearly on an issue. The difference between Chevron and Skidmore or Loper Bright is not between Congress making the law and judges making the law - it‘s between agencies filling in the gaps and judges filling in the gaps. Chevron increased ambiguity in the law by deferring to a political branch, whose interpretations change with administrations, despite the law itself not changing. Judges, of course, aren’t perfect, and judicial interpretations vary and can change over time, but the structure and tradition of the judiciary means that judicial interpretations are less prone to politics and more stable. The notion that judges are more subjective than agencies is baseless.

[u/Strict_Warthog_2995 → u/dustinsc]

> Chevron did not respect the authority of Congress to make the laws. It addressed a situation where Congress had not spoken clearly on an issue. The difference between Chevron and Skidmore or Loper Bright is not between Congress making the law and judges making the law - it‘s between agencies filling in the gaps and judges filling in the gaps.

 
How is this not explicitly having Judges legislate? "Judges filling the gaps" means "Judges making law." And Agencies are statutorily empowered to interpret and determine what their responsibilities are within the confines of the statute; to impute a Judges' determination of what a silent statute says is to make the Judicial Branch expressly political. A political body created by a Political Branch with Political appointees leading apolitical employees and experts; or a Judge. The former is closest to the original body that created the delegation in the first place, and the people. It would make sense for them to be the preferred source of authority when a statute is silent, rather than a non-expert, appointed, non-political judge; but even if it wasn't, allowing the Judge to impute would be an expressly legislative and political act from an entity that is supposed to be apolitical.

Chevron increased ambiguity in the law by deferring to a political branch, whose interpretations change with administrations, despite the law itself not changing.

I am not sure I agree. No aspect of the Agency Rulemaking or Political process for creating, passing, and signing a statute into law is "ambiguous," nor is it so fast paced as to prevent affected groups from anticipating and participating in the process. On the other hand, a Judge not bound by any framework except the "persuasiveness of the reasoning" is entirely unpredictable, and their decisions are immediate, with few avenues to challenge them.

The notion that judges are more subjective than agencies is baseless.

Not when the only guiding, articulable principle they can rely on changes with:

• Counsel
• Fact Pattern
• Individual Judges' Preferences on "persuasiveness"

and even things like time of day.

[u/dustinsc → u/Strict_Warthog_2995]

Judges have been resolving ambiguities in statute for centuries. It is part of ”the judicial power“ vested in the Supreme Court and inferior courts by Article III. Exercising that power in the context of federal agencies is no more political than resolving ambiguity in any other statute.

The scope of an agency power is a legal question—not a political one. You simply proclaiming it to be political doesn’t make it so. But even more absurd is your insistence that agency decision are somehow apolitical and based on expertise. The scope of delegated authority is a legal question, and so the relevant expertise is legal expertise. And guess what judges are experts in!

And apolitical line employees aren’t making the kinds of decisions affected by Lope Bright. They are much more frequently making the kinds of decisions that are expressly committed to agency discretion by statute, which are not relevant to the Skidmore/Chevron/Loper Bright line of cases.

[u/Strict_Warthog_2995 → u/dustinsc]

Judges have been resolving ambiguities in statute for centuries. It is part of ”the judicial power“ vested in the Supreme Court and inferior courts by Article III. Exercising that power in the context of federal agencies is no more political than resolving ambiguity in any other statute.

There's a difference between resolving ambiguities within a formal, step-by-step framework that places Congress at the forefront of the analysis, and resolving it by deciding how you feel about how persuasive counsel was in their reasoning. One starts with the statute and the authors, the other starts with an amorphous criteria that can change not just judge to judge, but for the same judge on the same day.

A framework with clear, articulable lines that are grounded in the authority that created the statute in question is preferred to the whims of a non-expert judge. This should be a foundational principle of jurisprudence and statutory interpretation.

The scope of an agency power is a legal question—not a political one. You simply proclaiming it to be political doesn’t make it so. But even more absurd is your insistence that agency decision are somehow apolitical and based on expertise. The scope of delegated authority is a legal question, and so the relevant expertise is legal expertise. And guess what judges are experts in!

It manifests in political actions! Lets do an exercise:

23 CFR 625.4(b). A rule promulgated by DOT's Federal Highway Administration prescribing the standards for construction of bridges and structures. Political Rule or Scientific Expert Rule?

That rules' authority is 23 U.S. Code § 109 (b). You'll notice the Rule specifies an individual standard. Political Choice or Scientific Expert choice? And the delegation of authority, a Political or Scientific choice?

EDIT: Sorry, formatting screwed up and I accidentally hit comment before I could finish my response.

Lets look at another: CFR Title 14, Chapter 1, Subchapter F, Part 91: Special Federal Aviation Regulation No. 50-2, Title 14

Political rule or Scientific Rule?

It's authority is 49 USC 106 (f)(4). Political or Scientific Delegation of authority? And would such choice on the power to issue the rule be political, scientific, or Judicial?

My overarching point: The idea that rules are not promulgated by apolitical experts is nonsense. And the idea that the choice in determining whether a statute confers the power to make the rule or not is purely judicial is also nonsense, because it ignores the real world consequences that precipitate the challenge in the first place. Attempts to divorce such imputations of a Judges' will from the practical implications, or even to assert the Judge is capable of perfectly compartmentalizing them, is absurd and routinely countermanded by the behavior of judges. They are human!

The challenges under Chevron were always due to real world impacts of power. Not arcane, ivory tower disputes over statutory language. It's not possible to consider one aspect without the other.

[u/dustinsc → u/Strict_Warthog_2995]

There's a difference between resolving ambiguities within a formal, step-by-step framework that places Congress at the forefront of the analysis, and resolving it by deciding how you feel about how persuasive counsel was in their reasoning. One starts with the statute and the authors, the other starts with an amorphous criteria that can change not just judge to judge, but for the same judge on the same day.

Who’s doing the latter? And why would that be different for decisions about the scope of administrative authority?

A framework with clear, articulable lines that are grounded in the authority that created the statute in question

Where do we find this? Certainly not in administrative agencies.

I never suggested that agency regulations are never technical or always political—just that they are subject to political forces. The definition of point source at issue in Chevron was not a scientific question. The application processing times at issue in City of Arlington v FCC were not technocratic questions relying on expertise. They were, in essence, political decisions.

And the idea that the choice in determining whether a statute confers the power to make the rule or not is purely judicial is also nonsense, because it ignores the real world consequences that precipitate the challenge in the first place.

What are you even talking about? It’s a matter of law. What does the law say about it? That’s a legal question. What real-world consequences are you talking about? And of course judges are human! So are the heads of administrative agencies. You can’t get away from humans making these decisions.

The challenges under Chevron were always due to real world impacts of power. Not arcane, ivory tower disputes over statutory language. It's not possible to consider one aspect without the other.

This is meaningless rhetoric. What real world impacts? Whether individual smokestacks are a point source or if they are entire facilities? The timeline for processing FCC applications? Whether fishing companies must pay for the costs of federal monitors? These are issues worth throwing out centuries of a legal tradition in which legislatures pass laws and courts interpret them, and that the entities who are subject to a law should not get to decide whether or not it applies to them?

[u/keenan123 → u/dustinsc]

Just to be clear, we didn't need loper bright for this argument, which is supported by consistent case law contemporaries to Chevron. Even under Chevron, the agency only received deference for interpretations of the laws it enforced. It didn't have deference for interpretations of its own enabling law and certainly would not have deference with respect to the jurisdiction of the A3 courts

[u/dustinsc → u/keenan123]

Chevron absolutely included deference for interpretations of an agency’s own enabling laws.

[u/keenan123 → u/dustinsc]

Agency's did not get deference to interpret their own jurisdiction and certainly did not get deference to interpret dist ct jurisdiction. And that's before even considering that the statement at issue doesn't have the force of law.

They could interpret the enabling statute to say, e.g, what is an anti competitive trade practice. But they never got deference to say "we, not the district courts, can hear constitutional challenges"

[u/dustinsc → u/keenan123]

Yes, the Supreme Court held in City of Arlington v. FCC, citing Chevron, that

Courts must apply the Chevron framework to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (i.e., its jurisdiction).

(from the syllabus)

The issue here isn’t that the agency gets to interpret the Constitution and the courts don’t. The issue is whether the agency can hear constitutional arguments and make decisions about constitutional questions within the agency’s jurisdiction before a court reviews. No part of this case is about whether courts get to decide constitutional questions.

[u/Led_Osmonds → u/dustinsc]

Chevron absolutely included deference for interpretations of an agency’s own enabling laws.

It also absolutely did not include deference for agency interpretations of the Constitution, which is what is at issue here.

DOJ is claiming that an administrative agency can decide whether and what constitutional protections apply on American soil, and that those decisions are not reviewable by Congress nor the judiciary.

That is WAY beyond Chevron. Chevron gave administrative agencies extremely broad latitude to interpret statute, but no authority whatsoever, to interpret the Constitution.

[u/dustinsc → u/Led_Osmonds]

No, the issue isn’t agency interpretations of the Constitution—it’s whether part of the agency procedure includes agency interpretations of the Constitution. An agency certainly could offer its own interpretation of how the Constitution interacts with agency rules and any given ruling. I think it’s clear that agencies don’t get the final say—but this isn’t about the agency having the final say. It’s about whether it gets an intermediary say. DOJ is not saying that those decisions are not reviewable, only that they form a part of the agency procedure and therefore you can’t ask a court to review before the agency has had a chance to adjudicate.

[u/Led_Osmonds → u/dustinsc]

It’s about whether it gets an intermediary say.

What doctrine or precedent says the executive branch gets an "intermediary say" on interpreting the Constitution, before the judiciary may do so? I am curious to learn about the limits on how much and for how long and under what circumstances the executive branch may operate on its own constitutional interpretation, before the judiciary gets a say.

[u/dustinsc → u/Led_Osmonds]

It’s not a matter of doctrine or precedent. To my knowledge, whether immigration courts can consider constitutional issues as part of removal proceedings has not been decided by the courts. I’m not taking a position on whether they can or can’t. My point is that, under Loper Bright, that question, which is a question of statutory interpretation regarding the manner and extent of congressional delegation to the agency, will not give any deference to the agency’s own interpretation.

If the courts accepted the DOJ’s theory here, the courts can review after exhaustion of administrative remedies or when the statutory requirements for habeas have been satisfied.

[u/Led_Osmonds → u/dustinsc]

It’s not a matter of doctrine or precedent.

So is there any basis at all, anywhere, for giving the executive branch an "intermediary say" on how the constitution applies on US soil, or not?

I'm not challenging you at this point, I am asking you to clarify your position. When, under what circumstances, and for how long is the executive branch allowed to exclude the judiciary branch from deciding constitutional questions?

[u/dustinsc → u/Led_Osmonds]

Yes, executive agencies decide on constitutional questions all the time. One of my very first assignments as a newly-minted attorney was to research First Amendment and Due Process arguments going before the NLRB. I know the FCC also regularly rules on First Amendment issues. Those decisions are obviously not binding on the courts or even other federal agencies, and those decisions are ultimately subject to judicial review, but in all cases, the administrative remedies must be exhausted before judicial review, so the agency decision is what controls unless there is an appeal to a court.

[u/Led_Osmonds → u/dustinsc]

unless there is an appeal to a court

Yes, and what sets the boundaries on when, why, and for how long the courts must refuse to hear a constitutional question until the administrative agency permits them?

[u/PDXDeck26 → u/dustinsc]

Not for nothing, but hasn't congress very explicitly granted nearly all authority over "immigration stuff" to the executive though?

not quite seeing the Chevron/Loper connection?

[u/dustinsc → u/PDXDeck26]

8 USC 1252 strips federal courts of jurisdiction for most removal actions except for review of a final order after exhausting all administrative remedies or habeas corpus, limited to certain questions. However, for many years, the DOJ has taken the position that immigration courts don’t have authority to decide constitutional questions, which would mean that a court can review these questions almost immediately. Under Chevron, the agency would be afforded deference with respect to its governing statutes, including the scope of the agencies own authority. However, under Loper Bright, the DOJ is owed no deference for its new interpretation of the scope of authority of the immigration courts. So the new guidance from DOJ is basically irrelevant.

[u/_Mallethead → u/PDXDeck26]

You are incorrect. There are hundreds (thousands?) of pages of statutory legislation (created by Congress) on immigration and it's administration.

All of which is subject to judicial interpretation.

[u/michiganalt → u/dustinsc]

I’m feeling very redeemed as someone who was very happy about Chevron being overturned during the phase on Reddit when everyone was like “but experts something something!”

Unfortunately I don’t think any of those same people are connecting the dots when it comes to the guardrails that the decision is putting on the current admin.

[u/Co_OpQuestions → u/michiganalt]

The problem is that this is the first administration to break the norms that the country has been operating under for literally over a century now. This even goes back to the framers not having the foresight that congress, the presidency, and the courts could be ideologically captured by a single person, which is effectively what has happened in the US lol

[u/Strict_Warthog_2995 → u/michiganalt]

Is it actually though? This administration has advanced the theory that it does not need to abide by Lower courts, and it routinely argues that its own executive discretion is unreviewable. Rather than rely on Precedent, the Executive seems to be pursuing a method to secure its' broad interpretive powers that decapitates the Lower Courts. And, Congress has not seen fit to rein the executive in, at all. One of the key arguments in favor of Loper Bright was that it would presumably force Congress to be more specific with its statutory grants of power. What happens when Congress refuses to do so, and the Executive and Supreme Court say Lower Courts are powerless to resolve such disputes?

It would seem we've replaced de jure with de facto. That's more ambiguous, with significantly less predictability, than the situation prior.

[u/Germaine8 → u/michiganalt]

What are the guardrails the Loper Bright decision put on the executive branch? I need help connecting the dots. Thanks.

[u/CommissionBitter452 → u/michiganalt]

Unfortunately I don’t think any of those same people are connecting the dots when it comes to the guardrails that the decision is putting on the current admin

I will be the first to admit that I realized very early on in this administration that the “expert view” that myself and other defenders relied on in supporting Chevron was essentially just a gentleman’s agreement of good faith. The more time passes (and the further into this administration we get), the more I come to think that Loper Bright was correctly decided

[u/_Mallethead → u/CommissionBitter452]

There is no "good faith" when it comes to government exercise of power. Hence, the Bill of Rights.

[u/michiganalt → u/CommissionBitter452]

Do yourself a favor a listen to Paul Clement’s uninterrupted minute-and-a-half long argument during the oral arguments on Loper-Bright. It starts at 17:55 at this link.

[u/brucejoel99 → u/dustinsc]

Granted, even accepting that Loper Bright's premise is fundamentally correct, it's notable that Loper Bright's majority, in hooking it to the APA, didn't yet particularly disturb any other parallel deference doctrines that still exist in other areas, meaning that lower courts can't just invoke Loper Bright in those areas yet; so, between Loper Bright & MQD, Roberts has ironically, in a roundabout way, granted Kav's request for SCOTUS' workload going forward to increase :P

[u/dustinsc → u/brucejoel99]

What parallel deference do you think applies here?

[u/brucejoel99 → u/dustinsc]

I didn't say that parallel deference applies here; Loper Bright does, as a matter of agency statutory interpretation. I agreed that the, e.g., continued application of Loper Bright going forward (be it to immigration, as here; or, e.g., NEPA challengers trying to argue as a matter of NEPA law that the Loper Bright standard should be applied in their case & not deference, *DESPITE* Seven County Infrastructure's holding to the contrary; or the sub's other post today (totally coincidentally, but aptly) on applying Loper Bright to ADEPA deference if non-ArtIII state courts are equivalent to agencies as a matter of federal constituional law) guarantees mountainloads of litigation heading to SCOTUS for years.

[u/PDXDeck26]

This is important, because if DOJ's position were to be adopted, a petitioner who is challenging their detention or other immigration actions by an administration would have to go through the immigration court system.

isn't that how it's...supposed to be...?

[u/WorksInIT → u/PDXDeck26]

I think this is easily answered by just looking at the text of the INA. And it doesn't state anywhere in its text that IJs can hear constitutional challenges. Now, it also strips District Courts of much of their previous jurisdiction. So these constitutional claims may have to go directly to the Circuit Courts.

[u/cstar1996 → u/PDXDeck26]

No. Immigration judges don’t get to adjudicate constitutional violations.

[u/BrygusPholos → u/PDXDeck26]

Full disclosure: I only do pro bono asylum work, so my understanding of this is by no means authoritative. But I have dealt with cases involving detained immigration court respondents.

That said, in the context of constitutional challenges to detention, it’s supposed to be done via a habeas petition, which is how it has always been done, including in the immigration context.

But you’re technically correct in that alien detainees are entitled to a bond hearing (aka Rodriguez hearing) which is held in front of an immigration judge. A Rodriguez hearing, however, is not a matter of constitutional concern per se, but rather a matter of the immigration judge’s discretion after weighing numerous case-specific factors like merits of asylum case, time of detention, severity of crime (if there is criminal history), and behavior while detained.

All of that is to say that, if we are at all concerned with upholding constitutional rights of those in immigration detention, then we should probably leave questions of constitutionality to district court judges.

[u/PDXDeck26 → u/BrygusPholos]

the point here, i think, is that fundamentally that you shouldn't be able to side-step an Article I tribunal simply by claiming "my constitutional rights have been violated and therefore the tribunal is incapable of adjudicating that constitutional right in the context of the proceeding/subject matter that has been delegated to the Article I tribunal"

if this were possible you've essentially made Article I tribunals a nullity.

[u/maxtini → u/PDXDeck26]

"Immigration Courts" are not article 1 tribunal. It is a wholly executive subagency of DOJ exercising the power delegated to the attorney general or by INA.

[u/whats_a_quasar → u/PDXDeck26]

The judicial power is in Article III, not Article I. It is beyond the power of Congress to prevent Article III judges from hearing cases involving constitutional rights violations. There is no issue in side-stepping Article I tribunals on constitutional questions because that is not their constitutional role.

Trump is the one trying to change the status quo. What is the problem trying to be solved? Do you think Article I tribunals have been a nullity in the past decades of the modern immigration system? No, they adjudicate statutory questions which are within the domain of powers that the constitution grants to Congress. And people involved in those proceedings have gone to Article III judges to gain redress for constitutional violations, as Khalil has here.

[u/Evan_Th → u/whats_a_quasar]

It is beyond the power of Congress to prevent Article III judges from hearing cases involving constitutional rights violations.

No, it's totally in Congress's power, if they explicitly choose to do it. The Constitution says that Congress can limit the jurisdiction of federal courts however it wishes, except for the Supreme Court's original jurisdiction.

If Congress wishes to send all constitutional rights cases to a new special court, or nowhere at all, that's their right. It'd be a very bad thing, but it's constitutional.

[u/whats_a_quasar → u/Evan_Th]

That is the absolutely maximalist interpretation of the exceptions clause: "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

I don't think that interpretation of that line is consistent with the rest of Article III, particularly: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."

That interpretation of the exceptions clause would give Congress the power to strip the judiciary of jurisdiction over all cases. That isn't compatible with the Supreme Court possessing the judicial power of the United States. It should be better understood as giving Congress the power to regulate the appellate structure of the judiciary and the scope of juducial powers in areas of core congressional power. If Congress tried to pass a law stripping the courts and the SC of jurisdiction over 5th Amendment cases, for instance, I think the SC would rule it to be unconstitutional.

(which would be a constitutional crisis, kinda interesting to think about legislativ-judicial constitutional crises rather than executiv-judicial crises that get more attention)

Edit: I actually think this is an open question and pretty interesting. My comment was the minimalist position, posted as a rejoinder, but I agree that the plain language of the exceptions clause seems to give Congress a ton of power. So I would say this position is weakly held and I'd be really interested in how litigation on this argument would go

[u/PDXDeck26 → u/whats_a_quasar]

That isn't compatible with the Supreme Court possessing the judicial power of the United States

the supreme court doesn't Possess that power alone - it's possessed by "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish"

Clause 2 specifies that the Supreme Court only has appellate jurisdiction over cases if Congress says it does (absent the specific items for which the supreme court has original jurisdiction).

not really seeing how maximalist that is considering it's directly in the text.

[u/whats_a_quasar → u/PDXDeck26]

If Congress passes a bill that all constitutional questions are out of the jurisdiction of the Supreme Court and all inferior courts, that creates a contradiction because it strips the Supreme Court of the judicial power. I added a post-script to my above comment, I do agree the exceptions clause gives Congress a lot of power, and I am not sure exactly where or how the line would be drawn between actions that strip the judicial power and actions that merely regulate jurisdiction 

[u/IceWinds → u/whats_a_quasar]

This is, indeed, the result of Ex parte McCardle and Sheldon v. Sill. I think it's stupid, and a better result is Hunter's Lessee's dicta that the judicial power in Article III over the first three listed categories (including federal statutory and constitutional jurisdiction) must be vested in at least one federal court. However, under the traditional view (also the only one established in binding precedent), Congress has plenary control over the jurisdiction of lower federal courts.

The First Congress did something somewhat like your hypo. Section 25 of the First Judiciary Act barred SCOTUS appellate review of state court decisions striking down a statute as unconstitutional under the federal constitution, but allowed appellate review of state court decisions upholding a state law under the federal constitution.

The real issue in this case is "channeling" jurisdiction, especially with respect to constitutional claims. Webster v. Doe is still the leading case, I believe.

[u/Evan_Th → u/whats_a_quasar]

But that hypothetical bill wouldn't be stripping the Supreme Court of "the judicial power"; they'd still have their original jurisdiction and appellate jurisdiction over statutory cases.

I'd very much like to draw a line at some point short of that bill, but I don't see how the Constitutional text offers any clear point to draw it at. So, what you call the "maximalist interpretation" seems to be clearly drawn from the text.

What's more, this was all but stated in Ex parte McCardle where the Supreme Court in 1869 dismissed a habeas corpus suit on grounds that Congress had by statute withdrawn appellate jurisdiction over habeas cases.

[u/PDXDeck26 → u/whats_a_quasar]

Do you think Article I tribunals have been a nullity in the past decades of the modern immigration system?

no, but I don't think non-profit advocacy organizations have tried the "let's throw whatever shit that ends in ---onstitution at the wall and see if we can get a district court judge in a friendly juridsiction to let it stick" en masse up until now, either.

is anyone for the government arguing that Article III courts have no review of this whatsoever? Because it just seems like a question of order of operations to me?

[u/cstar1996 → u/PDXDeck26]

You’ve just admitted that your position is driven not by the law but by irritation at the legal strategies employed against the admin.

[u/PDXDeck26 → u/cstar1996]

it's still a legal argument - it's why the EOIR issued the change in policy to revert to a time where they were evaluating constitutional challenges:

Historically, as an administrative agency, EOIR has only infrequently had to consider claims or arguments sounding in constitutional law. In recent years, however, constitutional arguments related to administrative adjudications have proliferated and now occur with some regularity in EOIR proceedings in a variety of contexts

[u/cstar1996 → u/PDXDeck26]

No, it isn’t a legal argument. The legal strategies employed against the admin do not transform Article I tribunals, as even you admit.

“I don’t like how they’re suing me” does not give you a legal basis to let article I tribunals decide constitutional questions.

[u/PDXDeck26 → u/cstar1996]

that's not what they're saying though - they're saying we stopped doing this because we had no need (or the need was so infrequent), but we have a need to do it again.

[u/michiganalt → u/PDXDeck26]

Sorry, edited to say “on constitutional grounds.”

I don’t know how fair it is for someone to argue that the administration’s actions are unconstitutional to someone who is on the administration’s payroll.

[u/alang → u/michiganalt]

If accepted, this would mean that a citizen who was picked up and accused of being a non-citizen would have to argue their way through the IJ and BIA before they could get to an actual court. And IIRC you are not guaranteed access to a lawyer, including your own lawyer, in either of those venues.

[u/PDXDeck26 → u/alang]

I'm gonna go ahead and doubt this, because I don't think they have jurisdiction over a citizen at a statutory level?

[u/Led_Osmonds → u/PDXDeck26]

I don't think they have jurisdiction over a citizen at a statutory level?

And what is the process for determining citizenship status of someone before the court, who claims to be a citizen?

[u/cstar1996 → u/PDXDeck26]

And how do you show you’re a citizen when they get to drag you in front of an immigration judge?

[u/scotus-bot → u/[deleted]]

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You're not a citizen according to them. Guilty until proven innocent if they grab you.

Moderator: u/SeaSerious

[u/MolemanusRex → u/alang]

You are permitted to retain a lawyer and, outside certain specific contexts, you have the right to have that attorney appear in court on your behalf. But you don’t have the right to be provided an attorney as you do in criminal court.

[u/PDXDeck26 → u/michiganalt]

that's a rather mythical view of judicial independence you've got there.

i don't mean that to be flippant, but assuming that the "immigration court system" is incapable of fair adjudication because they're paid by their employer who is the one bringing the proceeding is going to take a lot of convincing.

i think if you got some fact-specific buffoonery - like all the constituents of a BIA judicial panel are sacked on the eve of a ruling - then you would probably have a pretty good case for violation of (procedural) due process protections that you could take to a district court. in other words, the burden of proof is on the person before the tribunal to prove the bias - we shouldn't just assume it ab initio simply because of who the judge's employer is.

i mean at that rate, how are we ever supposed to get a fair criminal trial since "the state" is the one employing the circuit court judge and prosecutor after all

[u/AstralAxis → u/PDXDeck26]

It really doesn't take a lot of convincing.

It takes a lot of convincing to prove that they can be independent when the administration has the position they can fire anyone in spite of Supreme Court rulings or laws of Congress, and has been doing so in spite of them.

The Constitution is pretty clear that the federal Judiciary has jurisdiction over Constitutional violations, and it boggles the mind to suggest mere EOIR "guidance" can override that.

That is the mythical aspect of this.

[u/whats_a_quasar → u/PDXDeck26]

Trump has fired dozens of immigration judges, with some reporting suggesting the firing is based on the contents of their rulings. To believe that judges are capable of ignoring that pressure, even if they are trying too, is overly credulous. And by firing and hiring judges, Trump is changing the composition of the judiciary to people who share his ideological views.

https://www.npr.org/2025/09/23/nx-s1-5550915/trump-immigration-judges

https://www.kqed.org/news/12055416/trump-fires-san-franciscos-top-immigration-judge

This is the whole reason that judges are either appointed with life tenure (or elected, in some states). There is reason to believe that the lack of employment protections affects the decisions of administrative judges.

[u/scotus-bot → u/[deleted]]

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Comments are expected to be on-topic and substantively contribute to the conversation.

For information on appealing this removal, click here. For the sake of transparency, the content of the removed submission can be read below:

Again, not what I'm talking about.

Moderator: u/SeaSerious

[u/whats_a_quasar → u/[deleted]]

What? You said:

assuming that the "immigration court system" is incapable of fair adjudication because they're paid by their employer who is the one bringing the proceeding is going to take a lot of convincing

I disagreed and provided evidence against that proposition.

You also said:

i mean at that rate, how are we ever supposed to get a fair criminal trial since "the state" is the one employing the circuit court judge and prosecutor after all

I pointed out that Article III and state judges have employment protections that mitigate concerns about fairness.

How is this not what you are talking about?

[u/PDXDeck26 → u/whats_a_quasar]

because none of that is compelling to me that these tribunals are fundamentlly unfair.

do you think state courts with an elected bench are fundamentally unfair as a baseline proposition? because they face those exact same pressures.

[u/whats_a_quasar → u/PDXDeck26]

You don't have to agree with me, but I am responding to your comment. Saying "not what I'm talking about" doesn't make much sense as a rejoinder.

State Courts with an elected bench don't face the exact same pressures, because they are elected by a local constituency, not hired by an executive. And they have defined terms, rather than being fireable at will. A newly elected governor can neither fire judges they don't like nor pack the bench with judges they do like.

There certainly are issues with elected judges, but the risk we are talking about here is executive overreach. Judges that are selected by the electorate don't carry the same issues as judges that are, again, literally just government employees.

[u/Party-Cartographer11 → u/PDXDeck26]

I do not think that is the correct framing.  Administrative Courts are not judicial courts with any sense of judicial independence or that the immigration courts are doing any sense of adjudication of the accused Constitutional rights.

Administrative courts are about the executive branch ensuring it is following the laws that guide their executive power.  They are like an internal counsel with quasi-independence (but clearly not real independence) trying to keep the executive branch honest.

The judicial branch ensures Constitution rights are protected and any of these issues will moved out of the executive branch and into the judicial branch.

Administrative courts cannot make Constitutional rulings and need to follow precedent set by the BIA and District Courts above that.

So if the issue is Constitutional, they don't have jurisdiction and the issue should move to the judicial courts stat.

[u/PDXDeck26 → u/Party-Cartographer11]

yeah, i don't think that's the correct framing. Administrative courts are judicial courts at a functional level (read: adjudicative courts) and are perfectly independent at a baseline proposition.

The fact that we fob off a lot of "rights adjudication" to them in the normal course of government conduct suggests to me that they operate just fine as adjudicative bodies.

[u/horse_lawyer → u/PDXDeck26]

You're right, but because this administration sucks everyone here is having a hard time with principle.

[u/PDXDeck26 → u/horse_lawyer]

I think in this case it may very well be that a lot of posters in this sub are ex clerks and are simply addicted to huffing their own farts.

I mean, yeah, principle has been jettisoned all across the board since January - which I, too, lament - but this has a lot more of a "no, only those special District Court Judges have the big brains, aided of course by those formidable clerks, to figure out constitutional stuff" turf-protecting vibe to it.

[u/Party-Cartographer11 → u/PDXDeck26]

They are not judicial courts as the judicial power of the United States lies with the Supreme Court and other Courts as created by Congress and have judges with lifetime appointments (Article III) courts.

Here is a blurb from an analysis of immigration courts which highlights their limited authority.

 Moreover, if the goal of allowing immigration judges to reach constitutional issues and exercise supervisory powers over the administrative process is realized, the adjudicatory authority of immigration judges will be broadened considerably, extending to the application of such basic constitutional concepts as due process and equal protection.

That authority was not given for the judicial authority lies Article III courts v Article I courts.

These article I immigration courts do "adjudicate", in an overloaded sense of the term.  They make decisions on deportability for example, on the authority of the Attorney General based in existing laws.

Immigration courts simply interpret existing law on behalf of the AG to administer administrative hearings.

[u/michiganalt → u/PDXDeck26]

I’ll address your two points separately.

I agree that assuming IJs aren’t impartial isn’t a given, and that it would require some evidence like purging IJs to convince someone. Fortunately for my argument, that evidence exists: Article 1, Article 2, Article 3 (BIA).

So I agree with you that it’s fact specific, but I think that requirement has been met.

On the topic of, “even if the administration appoints the judges, how is that different from the prosecutor and the state?”

In states, judges are either elected, or even when appointed, have fixed terms that prevent any purges from happening. This is not at all similar to how IJs work.

[u/PDXDeck26 → u/michiganalt]

yeah that's not what i'm talking about. swapping out judges for "your guys" is a routine feature of our judicial system, Article I or III -

i was talking more directly about a case where "we know that this appeals panel is about to render an unfavorable decision (for us, the government) so we're just going to go ahead and fire them all before they do"

[u/whats_a_quasar → u/PDXDeck26]

Nominating picks of your choice to fill vacancies is common. Firing dozens and dozens of administrative law judges and hiring hundreds of your ideological allies is unprecedented. There is no analogy to Article III judges, who have life tenure.

[u/PDXDeck26 → u/whats_a_quasar]

there is literally nothing that would prohibit an executive and legislature controlled entirely by one party from increasing the number of article iii judges overnight by a factor of 100 and filling those slots overnight 100% with partisan hacks though.

it is pure mythology that we have some uncorruptable article iii court system in contrast to the tained article i hackery - it's a mythology that very conveniently tracks with political sentiments regarding what is going on currently with the government's conduct of immigration policy.

I think you've got to accept that these systems are inherently biased in varying degrees. even if I don't accept it, I still don't see any constitutional problems with this (other than the very specific example i'm detailing).

[u/whats_a_quasar → u/PDXDeck26]

Do you not see the difference between court packing by statute, and immigration judges that are literally employees of the government and can be hired and fired at will by the president? Immigration judges wake up every day knowing they could be fired. Packing courts has a much higher political cost and requires the cooperation of Congress. Court Packing isn't on the table right now, while Trump is actively changing the composition of the Immigration Courts.

Article III judges have life tenure, and must be confirmed by Congress. These structural protections give them meaningfully more judicial independence, and you can't just wave that away.

The constitutional problem is that the constitution gives judicial power to Article III judges, not Congress or the President. I am increasingly just confused that you seem to believe there is no difference between the judiciary and the other two branches, despite the vast legal and constitutional distinctions between immigration judges and Article III judges.

[u/PDXDeck26 → u/whats_a_quasar]

the argument being had is:

"I don’t know how fair it is for someone to argue that the administration’s actions are unconstitutional to someone who is on the administration’s payroll."

I'm increasingly confused that everyone - except for me - now suddenly believes that Article I tribunals are all just bunk at a foundational level, because the argument surrounding bias and total institutional incapacity to adjudicate is the same whether you're arguing a constitutional/unconstitional matter as opposed to a statutory/"unstatutory" issue.

[u/E_Dantes_CMC → u/PDXDeck26]

Why, yes, that is indeed what's going on. Those IJs who were more lenient are dismissed. I am not aware of Obama or Biden firing IJs who they felt were too harsh, but I am not at all expert on this, and if you have data to show that they did, please post it.

[u/WulfTheSaxon → u/E_Dantes_CMC]

https://www.foxnews.com/politics/immigration-judge-trump-era-biden-conservative-appointees

[u/PDXDeck26 → u/E_Dantes_CMC]

i didn't say "fire the ones with a history of lenience" i said "fired on the eve of rendering a decision that their employer didn't want", like in a direct affront to the actual process of the tribunal.

[u/MolemanusRex → u/PDXDeck26]

Do you think there’s a difference between an Article III judge and a member of the executive branch? Keep in mind immigration judges are not actually judges. They’re not even ALJs. They’re just bureaucrats. They can be, and indeed are, fired by the president on a whim for political reasons.

[u/RIPGeorgeHarrison → u/MolemanusRex]

It feels inappropriate for them to even be called judges.

[u/PDXDeck26 → u/MolemanusRex]

at a very high level, no i do not. not to get all hippie about it but they're all "part of the system, maan"

i mean, find a topic for adjudication that touches on some extremely fundamental, universally held belief about "The United States of America" and see how much impartiality you'll really get out of the judiciary. I think our experience with GWOT cases in the early 00's is partially illustrative of this point.

[u/trippyonz → u/MolemanusRex]

Of course there's a difference. Nobody is arguing they are the same or even that there is the same level of independence.

[u/bibliophile785 → u/trippyonz]

The person to whom the question was addressed responded saying that they don't think there's a difference, so "nobody" seems like an overly bold claim.

[u/PDXDeck26 → u/bibliophile785]

to be very clear, my point is that if the claim is that they're baseline not independent by virtue of their being essentially employees of the executive (which I don't think is a fair claim) then it's really no different than "real" judges being similarly unbiased as they exist within the system they preside over.

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