WASHINGTON, D.C. (Federal News Network) — There is no precedent in peacetime for using military lawyers in civilian courtrooms — the last time U.S. military officers exercised judicial authority over civilians was under martial law during World War II, a practice the Supreme Court later ruled unconstitutional. Now, the Pentagon’s plan to use its military lawyers as immigration judges is setting a precedent with no clear limits that could fundamentally reshape civil-military relations in the United States.
“Whatever happens here is going to establish some precedent for future administrations, and if we normalize using military resources to address civilian government staffing challenges, which is ultimately what this is, we are fundamentally altering the nature of American governance,” Ira Rushing, an associate at the Tully Rinckey law firm, told Federal News Network.
Defense Secretary Pete Hegseth this week approved a plan to detail up to 600 military lawyers to the Justice Department as temporary immigration judges — an effort aimed at easing a backlog of roughly 3.5 million cases that has grown in recent years.
Chief Pentagon Spokesman Sean Parnell told Federal News Network the Defense Department is currently identifying Judge Advocates and civilian attorneys for details; these attorneys will “augment existing resources to help further combat a backlog of cases by presiding over immigration hearings.” These military lawyers will serve as immigration judges for about six months, but their assignments can be renewed.
It is unclear what authority the DoD is using to lend its attorneys to the Justice Department. Rushing said the administration appears to be relying on Title 10 authority, which allows the Defense Department to provide support to civilian agencies as long as it does not violate the Posse Comitatus Act, which prohibits the use of active-duty military forces for domestic law enforcement.
At the same time, there are other laws, such as the Economy Act and the Immigration and Nationality Act, that allow interagency support.
But immigration judges are not just federal employees performing administrative functions — they hold judicial power that directly affects individual liberty interests.
“There’s really never been this question of military personnel themselves serving in a quasi-judicial civilian role, I know what the mindset is — we want to use these military lawyers to do these administrative law roles and that’s not law enforcement. It’s just administrative law. But it really threads this needle by arguing that adjudicating civil immigration cases doesn’t constitute law enforcement, because immigration enforcement itself involves detention, removal proceedings and determinations that directly affect personal liberty,” Rushing said.
“While the immigration proceedings are technically civil rather than criminal, the Supreme Courts recognize this quasi-criminal nature of immigration proceedings, given the severe consequences. We are theoretically doing administrative law, but the effect is in law enforcement,” he added.
In addition, if the National Guard and Reserve members are involuntarily called up for this duty under Title 10 rather than Title 32, it is unclear what funds would be used to pay them.
“Can you have an appropriation under Title 10 that pays National Guardsmen to act as a civilian judicial officer? I don’t know. Those are going to be some questions that will probably be flashed out pretty heavily here in the next couple of weeks,” Rushing said.
There is also the issue of judicial independence that comes from putting military officers into judicial roles. U.S. judges are supposed to be free from outside pressures and make impartial decisions based solely on facts and law, but military lawyers remain in a chain of command that could expose them to unlawful command influence.
