The Department of Justice (DOJ) issued a 13-page defense of the decision to temporarily reassign Defense Department lawyers to immigration tasks, saying that Defense Secretary Pete Hegseth may do so since the lawyers will work "on a full-time basis, in an entirely civilian capacity, under the supervision of civilian DOJ supervisors."
"Under our longstanding view, those conditions are sufficient to comply with the PCA’s terms," Thomas Elliot Gaiser, assistant attorney general for the Office of Legal Council, wrote, referring to the Posse Comitatus Act, which some critics have said would block the move.
Why It Matters
The DOJ oversees the immigration court system, where judges determine whether immigrants are eligible to remain in the United States or not.
In August, Hegseth authorized the deployment of up to 600 military lawyers, known as Judge Advocate Generals (JAGs) to the DOJ to serve as temporary immigration judges, including 150 attorneys of military and civilian background to be deployed to assist with the increasing caseload as some judges departed their posts and recruitment under the Trump administration slowed.
The DOJ's Executive Office for Immigration Review (EOIR), had 700 immigration judges at the end of the Biden administration, with that number reduced to about 600 under the second Trump administration, with some judges allegedly fired without obvious cause.
The Posse Comitatus Act (PCA) is a federal law that limits the use of federal military personnel to enforce domestic law by the federal government or by other government entities.
What To Know
Essentially, the argument boils down to the fact that the appropriated lawyers will not be serving as federal agents in a military capacity but will have changed their status and role in a way that is consistent with previous instances of personnel temporary reassignment.
Critics have leaned on the fact that the lawyers come from the Pentagon, and therefore are military personnel, which would violate the PCA as a matter of technical fact, but the DOJ argues that those laws would apply if not for the changing status and nature of the personnel involved.
The law policy journal Just Security, which stresses an independent and non-partisan editorial standing, noted that while it objected to the administration's plan, 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" as one of the main points of contention.
Gaiser laid out a five-point defense of Hegseth's authorization, which mainly rests on the question of reimbursement and the question of their role as military personnel versus civilian and "Special Assistant United States Attorneys" (SAUSAs).
"Federal law permits interagency details of lawyers, including military lawyers, to serve as either SAUSAs or temporary IJs. The precise method of doing so may vary slightly, however, between the two programs," Gaiser wrote.
He wrote that Hegseth has "broad discretion to detail personnel to other federal agencies to serve a federal purpose, subject to the limitations of appropriations law."
Gaiser also heavily refers to the original text of the laws and acts on which the reassignment and potential roadblocks would rely, acknowledging that some of the "relevant statutory framework has been amended in the intervening decades," but he maintains that those changes do not affect the understanding of permissible reassignment as the DOJ has interpreted and understood relevant statutes and regulations.
The main point of contention that he does concede is how reimbursement is handled, with the Justice Department likely to reimburse based on the "general matter" that an accepting agency taking personnel on loan will cover the costs, although some of those appointed will be on a non-reimbursement basis.
Critics have also noted, however, that even if the reassignment is legal, it does not address concerns that the lawyers in question will likely lack the experience and understanding to handle such a "wildly complicated field," as immigration lawyer Charles Kuck previously told Newsweek.
What People Are Saying
Charles Kuck, founding partner at Kuck Baxter immigration law firm in Atlanta, previously told Newsweek: "Just what the Immigration Court needs—more lawyers with no experience in a wildly complicated field with defendants' lives on the line on each decision. This is not a joke. It's a travesty.
"Without a doubt, the immigration court system is broken. But this is not the way to fix it. Politicizing judges is the worst possible outcome for the immigrants in deportation proceedings."
Lisa Koop, national director of legal services at the National Immigrant Justice Center, previously told Newsweek: "While immigration court backlogs and dysfunction are not unique to this administration, the immigration judge 'shortage' is a problem of the Trump administration's own making, a result of the firing of dozens of qualified judges since January.
"Asking military attorneys with limited or no immigration experience to decipher the U.S. immigration code and administer justice is misguided; it is clearly intended to lead to speedy deportations in lieu of due process and just outcomes. In reality, this move will lead to years of tangled litigation and mishandled immigration cases. The victims will be immigrants seeking their fair day in court who are being set up to always lose, regardless of their clear eligibility for protections created by Congress and recognized by every single administration except this one."
Chief Pentagon spokesman Sean Parnell, in a previous statement to Newsweek: "The Department remains committed to continuing our support for our interagency partners, bringing the skill and dedication of America's service members and civil servants to deliver justice, restore order, and protect the American people. Beyond this, we don't have any additional details to provide at this time."
What Happens Next?
The Defense Department will continue to reassign lawyers to the DOJ consistent with the administration's understanding and interpretation of a legally-viable path to help manage the immigration caseload.