Make immigration courts into real courts

During the Trump presidency, I found myself making lists of changes in laws, in government structures, in entrenched policies, that a responsible successor should be working for. And that a responsible activist might be agitating for.

This rapidly became a long and expanding list: penalties for violating the Constitutional emoluments clause (that is, the prohibition on taking bribes); new barriers to politicizing the Department of Justice; automatic sunsets on Presidential emergency declarations; reining in the pardon power; enforcement of the Hatch Act prohibiting campaigning on the government dime, etc. and so forth. (People who actually know a lot about this, a bi-partisan pair of former Presidential lawyers, Jack Goldsmith and Bob Bauer, have actually written the book: After Trump: Reconstructing the Presidency. No, I haven't read it and likely will not have time to.) 

Scratches on a bench in a San Francisco immigration courtroom

But nothing on my list seemed more urgent than fixing the immigration court system. Many of us in San Francisco had a chance to see this kangaroo process in action in the early days of the Trump regime. Concerned citizens filled hearings where unfortunate inmates of Jeff Sessions' Justice Department immigration lock-ups learned their fates and the fates of their often mixed-status families. It was hard to tell often whether the subjects of these cases understood much through the online video-conferencing interviews and stumbling translation.Some hearings seemed merely cruel and perfunctory. Some judges did their best to decide cases compassionately within the constraints of the law. But that was the exception.

But ultimately the Attorney General of the moment (first Sessions and later Bill Barr) was the judges' boss. He made the rules about how they were allowed to apply the intricacies of immigration law. That's not how real courts work.

Now the New York Times editorial board is on the case:

Immigration Courts Aren’t Real Courts. Time to Change That.

... If the goal was to empty the United States of all those asylum seekers, Mr. Trump clearly failed, as evidenced by the huge backlog he left Mr. Biden. But the ease with which he imposed his will on the immigration courts revealed a central structural flaw in the system: They are not actual courts, at least not in the sense that Americans are used to thinking of courts — as neutral arbiters of law, honoring due process and meting out impartial justice.  

Nor are immigration judges real judges. They are attorneys employed by the Executive Office for Immigration Review, which is housed in the Department of Justice. It’s hard to imagine a more glaring conflict of interest than the nation’s top law-enforcement agency running a court system in which it regularly appears as a party. 

The result is that immigration courts and judges operate at the mercy of whoever is sitting in the Oval Office. How much money they get, what cases they focus on — it’s all politics. 

That didn’t used to be such a problem, because attorneys general rarely got involved in immigration issues. Then Mr. Trump came along and reminded everyone just how much power the head of the executive branch has when it comes to immigration. 

The solution is clear: Congress needs to take immigration courts out of the Justice Department and make them independent, similar to other administrative courts that handle bankruptcy, income-tax and veterans’ cases. Immigration judges would then be freed from political influence and be able to run their dockets as they see fit, which could help reduce the backlog and improve the courts’ standing in the public eye. Reform advocates, including the Federal Bar Association, have pushed the idea of a stand-alone immigration court for years without success. The Trump administration made the case for independence that much clearer. ...

The Democratic Congress has an array of urgently necessary legislation before it. They will receive almost no cooperation from any Republicans now that GOPers have become pure anti-democratic insurrectionists. But this reform would be a tremendous signal about what kind of country this aspires to be, affirming that this is a nation of laws capable of compassionate care for immigrants. Congress and the Biden administration need to go there.