Should Immigration Courts Leave the Justice Department? Conservatives Disagree

Here is a trivia question that explains a surprising amount of American immigration law. Who employs an immigration judge? Not the judiciary. Not Congress. The answer is the Department of Justice, the same executive department whose lawyers appear in the courtroom to argue for the government. The person in the black robe and the lawyer for the prosecution draw their paychecks from the same cabinet secretary's budget.

That arrangement strikes most Americans as odd the first time they hear it, and it has struck a surprising number of lawyers as odd for decades. Proposals to move these judges out of the Justice Department and into an independent court have circulated for years, and they have drawn support from both the left and some on the right. They have also drawn opposition from conservatives who think the arrangement is exactly right. This is a disagreement within our own camp, so let me do what the subject demands: define the terms, explain the structure, give both conservative positions a fair hearing, and then say which I find more persuasive and why.

The structure as it stands

Start with the organization chart, because it is not what most people picture.

Immigration "courts" are not courts in the constitutional sense of Article III. They are administrative tribunals. The judges, formally called immigration judges, are employees of the Executive Office for Immigration Review, usually shortened to EOIR, which sits inside the Department of Justice. EOIR was created in 1983, when the immigration judges were separated from the old Immigration and Naturalization Service, which was the enforcement agency, so that the people who decide cases would not be in the same agency as the people who arrest. That separation inside the executive branch was an early step toward neutrality. The functions of the INS were later moved into the Department of Homeland Security in 2003, but the courts stayed at Justice.

The judges are hired by the Attorney General, and they work under the Attorney General's supervision. They conduct hearings in which the government is represented by lawyers from DHS and the noncitizen is represented by a private lawyer, or by no one, since in these civil proceedings there is no right to appointed counsel at government expense.

Above the judges sits the Board of Immigration Appeals, the BIA, the highest administrative body in the system, created in 1940. It hears appeals from the immigration judges and issues precedential decisions that bind them. Its members are appointed by the Attorney General. Above the BIA, a final order may be reviewed by a federal court of appeals, which is where Article III judges enter the story.

And above all of it sits the Attorney General himself. Under the Immigration and Nationality Act and the regulations, the Attorney General can review decisions of the BIA, and the Board or the Secretary of Homeland Security can refer, or certify, cases to him. When he decides a case, his ruling becomes binding precedent for the whole system. Attorneys general of both parties have used that power to reshape the law on particular questions of asylum, relief from removal and the definition of crimes that carry immigration consequences.

That is the structure: judges who work for the executive, an appeals board that works for the executive, and a cabinet officer who can overrule both.

The backlog, in general terms

The reason this debate has heat is the backlog. I will describe its causes in general terms rather than quote a figure, since the number moves from year to year and you can check the current count on EOIR's published statistics. The pending caseload of the immigration courts has grown to a size that would have seemed unimaginable a few decades ago, and wait times for a hearing are measured in years in many places.

The causes are several, and honest people argue over the weights. Filings rose with the number of people who entered and sought relief. Hiring of judges lagged the caseload. Changes in enforcement priorities pushed cases in and out of the docket. Continuances, the postponements of hearings, accumulated. Procedural rules that give applicants many opportunities to seek relief lengthen the process. And the sheer complexity of immigration law, which courts have called one of the most complicated bodies of law in the country, means each case takes time.

Nobody should pretend that one reform will empty the docket. The question is whether the structure of the courts makes the problem better or worse, and that is where the proposal comes in.

The proposal: an Article I court

The reform that gets the most attention would take the immigration judges and the Board out of the Justice Department and put them in an independent court created by Congress under Article I. Congress has the power, in Article I, Section 8, "To constitute Tribunals inferior to the supreme Court." It has used that power to create specialized courts staffed by judges with fixed terms: the Tax Court, the Court of Federal Claims, the Court of Appeals for Veterans Claims and others. Those are called legislative or Article I courts, in contrast to the Article III courts that have life tenure under the Constitution.

The idea has long had advocates, including bar associations, former judges, and the immigration judges' own professional association, who argue that the present structure invites political pressure. The American Bar Association, for example, has supported an independent immigration court for years. Their argument is mostly about neutrality: a judge whose boss is the head of the prosecuting agency, and who can be reassigned or have his cases taken away by that boss, is not as free as a judge should be.

The case for independence, stated fairly

I want to give the conservative who favors independence his best argument, in numbered form.

1. Adjudication should be separated from prosecution. The oldest principle of fair process is that no one should be judge in his own cause. The Justice Department's lawyers prosecute the case and the Justice Department's judges decide it. Even if every judge acts with integrity, the appearance is poor and the structure is a standing temptation.
2. The executive has swung policy back and forth through case management. Attorneys general of both parties have used their power over the courts to change docket priorities, to certify cases to themselves and to set quotas or performance expectations for judges. A conservative who admires stable, predictable law should dislike a system in which the rule changes with the administration.
3. Independence would restore confidence in the outcome. If a judge's decision to deny relief came from a body that the public understood to be insulated from the White House, a denial would carry more legitimacy, and enforcement could proceed with fewer accusations of political manipulation. That helps the cause of enforcement, not just the cause of applicants.
4. A properly designed court could be more efficient. Judges with fixed terms, clear rules, and their own administrative support could manage their dockets without having their priorities changed every few years by a new administration. Some versions of the proposal include a standing structure for hiring and training.
5. It fits the conservative principle of limited government. An agency that makes the rules, enforces them and adjudicates disputes about them is the administrative state at its most concentrated. Separating the adjudicator from the enforcer is a step toward constitutional order.

That is a serious argument, and it is made by serious people on the right.

The case for executive control, stated just as fairly

Now the other conservative.

1. Immigration enforcement is an executive function. The Constitution vests "the executive Power" in the President and requires him to "take Care that the Laws be faithfully executed." Deciding who may stay and who must go is the most executive thing in the world, tied to foreign affairs, national security and the border. A court outside the executive's control is a body that could, in principle, frustrate the policies the voters elected the President to carry out.
2. Accountability runs through the elected branches. If immigration judges answer to the Attorney General, and the Attorney General answers to the President, then voters can hold someone responsible. An independent court answers to no one. When the judges decide that a category of claim should succeed, the voters have no lever to pull. That is the opposite of what conservatives usually demand of the administrative state.
3. The Supreme Court has been wary of insulating officials from presidential control. In the Court's recent separation-of-powers decisions, the principle has been that officers who exercise significant executive power must be answerable to the President, and in United States v. Arthrex in 2021, the Court held that administrative patent judges could not issue final decisions that no principal officer could review, precisely because it would break the chain of accountability. The logic points toward more control by the executive, not less.
4. The Attorney General's power to certify and decide cases is how an administration corrects error. Without it, a long line of Board decisions could entrench readings of the law that the elected executive considers wrong, and no one could correct them but Congress.
5. A new court would add a layer, not remove one. Creating an independent Article I court would mean new judges, new administrative systems and new appeals, and it could be captured by the same interests that critics fear today. The backlog is a resource problem, and the answer to a resource problem is more resources, not a new structure.

That argument is also serious, and I hold part of it.

Where the two sides actually agree

It is worth noting how much common ground there is. Both conservatives believe in a fair hearing. Both believe the backlog is a failure. Both distrust unaccountable power, and they differ mainly on which kind of accountability matters. The independence side fears a captured judiciary; the control side fears an unaccountable one. In that sense it is a classic conservative tension between the rule of law and democratic accountability, and the Founders felt it too.

The difference is also partly a matter of design, not principle. An independent court could be built with presidential appointment and Senate confirmation of its judges, as with the Tax Court, whose judges are appointed by the President to fixed terms. That preserves a line of democratic accountability at the front end, while protecting the judges from removal over their decisions. Where such a court sits among the branches is itself contested: Congress has declared the Tax Court independent of the executive branch, while a federal appeals court has treated it as exercising executive authority. That dispute shows that independence and executive accountability are not as cleanly opposed as the slogans suggest.

My verdict

Let me stake out a position, with the caveat that I hold it with modesty.

I think the independence argument is strongest on structure and the control argument is strongest on policy. On structure, the instinct that adjudication should not live in the prosecutor's department is a sound one, and the history of EOIR's separation from the INS shows that our own government has long agreed. On policy, immigration is a field where the executive and Congress have constitutional responsibilities that courts do not share, and where a body insulated from elected officials is a risk.

So I come out in a middle place, not a mushy one. I would not move the courts out of the executive branch entirely. I would, however, give the system what a fair tribunal needs: fixed terms or removal only for cause for the immigration judges, a clear statutory wall between the prosecutors and the bench, published criteria for the Attorney General's certification power so that it is used on questions of law and not on individual outcomes, and real money for hiring. That is a structure in which the elected executive still sets policy, but where no one can say that a judge's decision was dictated by a phone call. A reform along those lines would answer the strongest objection from the independence side without giving up the accountability the control side prizes.

If Congress preferred a full Article I court, with presidentially appointed judges, Senate confirmation, and a clear line of removal for cause, I would not oppose it, as long as the design kept the political branches responsible for policy. What I would oppose is any version that calls itself independence and delivers a body no voter can reach.

What this means for a family

It is easy to treat all this as inside baseball. It is not. The immigration court is where a woman who fled persecution waits years for an answer, and where a man who overstayed a visa and committed a serious crime is ordered removed or not. It is where a family's future is decided. It is also where the public sees whether the law is enforced fairly. A system that is slow, opaque and seen as political loses the confidence of both the people who want more enforcement and the people who want more mercy. Getting the structure right is a way of serving both.

INS v. Chadha Began as One Man's Deportation and Ended the Legislative Veto shows how a single deportation case ended up redrawing the line between Congress and the executive, which is the same line this debate is about. What an ICE Detainer Actually Asks a Local Jail to Do and Why It Matters looks at another place where the structure of enforcement shapes outcomes, and Reno v. Flores and the 1997 Settlement That Still Shapes Family Detention shows how a court settlement ended up governing policy for decades. For the broader point about administrative adjudication, Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right? is a reminder of what Hamilton thought a real judiciary needed in order to be independent.

The case in brief

1. Immigration judges are employees of the Justice Department's Executive Office for Immigration Review, created in 1983, and the Board of Immigration Appeals and the Attorney General sit above them with power to review and certify cases.
2. The backlog has several causes, among them filings, hiring, continuances, shifting enforcement priorities and complex law, and no structural reform alone will clear it.
3. Conservatives who favor an Article I court stress separating adjudication from prosecution and stabilizing the law; conservatives who oppose it stress the executive's constitutional duty to enforce the law and the need for accountability to voters.
4. The sensible middle is a tribunal with fixed terms or cause-based removal, a wall between bench and prosecutors, published rules for the Attorney General's certification power, and more resources.
5. Whatever Congress chooses, it should decide the structure in a statute, in the open, because the Constitution gives it that job.

What you can do: look up the current EOIR statistics on pending cases and average wait times in your state, then write your senators and representative to ask where they stand on judicial independence and funding for the immigration courts.