Supreme Court rules immigration judge union must use civil service review, not courts

The Executive Office for Immigration Review, a component of the Department of Justice, employs around 570 immigration judges who decide deportation and asylum cases. These judges aren't Article III judges. They're federal employees supervised by a chief immigration judge and ultimately by the attorney general. The DOJ has controlled their public speech since at least 2017, when the agency issued a memo requiring supervisory approval before any judge could speak at organized events about immigration topics.

In October 2021, EOIR updated the policy under the Biden administration, replacing a Trump-era categorical ban with a process requiring judges to seek and obtain approval from supervisors before engaging in public speaking at organized events. Critics at the Knight First AmendmentFirst AmendmentConstitutional protection for freedom of religion, speech, press, assembly, and petition.Key ConceptFirst AmendmentConstitutional protection for freedom of religion, speech, press, assembly, and petition.Open conceptBookmark Institute said the revised policy still functioned as a prior restraintPrior RestraintConstitutional prohibition on government censorship before publication.Key ConceptPrior RestraintConstitutional prohibition on government censorship before publication.Open conceptBookmark on speech, requiring complete talking points in advance and preserving broad front-office discretion to deny requests.

The National Association of Immigration Judges sued the DOJ in federal district court in Alexandria, Virginia, arguing the speech policy violated its members' First and Fifth Amendment rights. The district court dismissed the case for lack of subject-matter jurisdiction, concluding that the challenge must go through the administrative review process established by the Civil Service Reform ActCivil Service Reform ActA 1978 law creating the Merit Systems Protection Board and channeling most federal employee workplace disputes through administrative review rather than federal courts.Key ConceptCivil Service Reform ActA 1978 law creating the Merit Systems Protection Board and channeling most federal employee workplace disputes through administrative review rather than federal courts.Open conceptBookmark of 1978. Under that law, federal employees who want to contest workplace policies must bring their grievances to the Merit Systems Protection BoardMerit Systems Protection BoardAn independent federal agency that hears appeals from federal employees who are fired, demoted, or disciplined.Key ConceptMerit Systems Protection BoardAn independent federal agency that hears appeals from federal employees who are fired, demoted, or disciplined.Open conceptBookmark before any federal court can hear the case.

The Fourth Circuit vacated the district court's ruling in 2025, but not on any argument either party had made. Instead, the appeals court raised a new theory on its own: that the CSRA's administrative scheme might be so dysfunctional, given Trump administration firings of MSPB officials and the board's operational breakdown, that it could no longer channel any claims from federal employees at all. Neither the immigration judges nor the DOJ had briefed or argued that theory.

The Fourth Circuit remanded the case for the district court to evaluate whether the CSRA still functioned as Congress intended. The DOJ petitioned the Supreme Court to reverse, arguing the Fourth Circuit had no authority to decide a question the parties hadn't raised. Chief Justice John Roberts issued a temporary stay blocking the Fourth Circuit's order while the justices considered the petition.

The Supreme Court granted certiorari and issued a unanimous per curiam opinion on May 26, 2026, reversing the Fourth Circuit. The five-page unsigned opinion grounded the reversal entirely in the party-presentation principle: federal courts are 'essentially passive instruments of government' that rely on the parties to frame the issues. The Court quoted its own precedent that courts aren't 'roving commissions' licensed to 'sally forth each day looking for wrongs to right.'

The Court found the Fourth Circuit had transformed the NAIJ's narrow argument (that the CSRA didn't channel its specific claims) into a sweeping new question about whether the CSRA channels any claims at all, without giving either side a chance to respond to that theory. That transformation violated basic principles of the adversarial system.

Justice Clarence Thomas, joined by Justice Amy Coney Barrett, wrote a concurrence going further than the majority. Thomas argued the Fourth Circuit was also wrong on the merits, not just on procedure. In his view, the CSRA unambiguously channels federal employee workplace claims to the MSPB regardless of whether executive branch officials have weakened the board's operations. Thomas wrote that 'conditions may have changed, but the statute has not,' a direct rebuke of the Fourth Circuit's logic that political disruption to the MSPB could rewrite jurisdictional law.

The Supreme Court also denied the NAIJ's cross-petition without comment. The union had asked the Court to rule directly that the CSRA doesn't channel First Amendment workplace claims, which would have let the free speech challenge proceed in federal court. By denying that cross-petition, the Court sent the case back to the lower courts with the CSRA jurisdictional question still unresolved, leaving the immigration judges no closer to having their speech rights adjudicated.

The Merit Systems Protection Board is the administrative body the CSRA requires federal employees to use, and it's in severe dysfunction in 2026. The MSPB received over 12,000 appeals in fiscal year 2026, more than double its typical annual caseload of around 5,677. Acting Chair Henry Kerner has recused himself from cases involving the Office of Special Counsel, where he previously served, while board member James Woodruff has recused himself from matters involving the Department of Defense and Department of Veterans Affairs. Together those recusals block nearly 40% of federal employee appeals from being heard, with average wait times stretching well beyond a year.

For the NAIJ, using the CSRA channel means navigating this backlogged body before any federal court can hear the free speech question, a process that could take years and may produce no relief if the MSPB lacks a functioning quorum to rule.

The broader context: immigration judges work inside a system where over 3.2 million cases were pending as of early 2026. The Trump administration has fired at least 17 immigration judges in 10 states since January 2025, reassigned judges who hadn't issued deportation orders, and reduced the Board of Immigration Appeals from 28 to 15 members. The Brennan Center documented that the attorney general has also exerted direct influence over BIA opinions. Speech restrictions that prevent judges from speaking publicly about these conditions remove one of the few accountability mechanisms available outside the DOJ chain of command.

The NAIJ has pursued recognition and speech rights through multiple legal channels across two administrations. The Trump administration decertified the union through the Federal Labor Relations Authority in November 2020, the day before the presidential election. The FLRA's own chief counsel had recommended denying the decertification, but the FLRA approved it anyway. The Biden administration reversed that decision and recognized the union again in December 2021. The second Trump administration has continued to contest the union's legal standing and speech rights. The Knight First Amendment Institute, which represented NAIJ before the Fourth Circuit, called the Supreme Court's ruling a setback for judicial independence and First Amendment rights of government employees.

Ramya Krishnan of the Knight First Amendment Institute served as lead counsel for the NAIJ through the Fourth Circuit argument. Krishnan argued the speech policy amounted to unconstitutional prior restraint, requiring pre-approval of speech before it can occur. She also argued the Fifth Amendment's due process guarantee separately constrained the DOJ's discretionary approval process. The Supreme Court's ruling doesn't resolve either of those constitutional questions. It only decides where those claims must be heard first: the MSPB, not a federal district court.