The Department of Justice (DOJ) has filed a petition with the Federal Labor Relations Authority seeking to obtain a finding in concurrence that immigration judges — a part of DOJ's Executive Office for Immigration Review (EOIR) — are management officials, and therefore ineligible under federal law to establish or maintain a union. A copy of the petition is available on Law360 (behind a paywall).
This is an important question, because immigration judges formed a union, the National Association of Immigration Judges (NAIJ), decades ago. The NAIJ has become increasingly active as it fights recent attorney general directives covering their work and productivity. NAIJ representatives, such as president of the union, Ashley Tabador, argue that these directives impinge on their independence. Others, such as myself, believe they restore accountability to a group of individuals who, no matter how they style themselves, are executive branch employees who have too long had little or no oversight, resulting in prolonged and often needless continuances and adjournments and low case closure rates, at least among some judges, thus helping to contribute to unconscionable backlogs in the nation's immigration court system.
The fight between the NAIJ and the administration has become nasty and bubbled over into the larger political domain, where the union has attempted to take advantage of the partisan divide to suggest that it should formally be made independent by act of Congress. As a recent item in the Conservative Review notes:
Previously, the NAIJ has pushed back on a 2018 plan to impose quotas and deadlines on judges in response to the courts' case backlog amid a massive backlog of immigration cases. More recently, the union has lobbied Congress to break its members away from the DOJ oversight.
I have no doubt that it's true, and it's worth pointing out that such lobbying — however coyly it may be done or under what guise it takes place — is against the law. See, for example, this article in a January 2014 edition of FedSmith, which discusses federal union lobbying generally, and points out that when done on official time (which includes time granted by DOJ for union officials to conduct union business), it contravenes the Anti-Lobbying Act, specifically at Title 18, Section 1913 of the U.S. Code.
It's a puzzle to me why immigration judges were permitted to create a union in the first place. By comparison, special agents of the Homeland Security Investigations division of Immigration and Customs Enforcement (HSI/ICE) are forbidden from unionizing, because it is recognized as being incompatible with the range and gravity of their duties. If this is true of agents, how much more so must it be for the judges assigned to oversee and adjudicate cases involving that most serious of issues — removal from the United States?
It's also ironic because, if the NAIJ were to achieve its fondest wish and immigration judges were separated from the executive branch into an independent, statutorily created Article I agency, is there any doubt that Congress would ensure that embedded in that statute's provisions would be a clause forbidding them from unionizing?