Justice Department Backs Use of Military Lawyers as Temporary Immigration Judges
The Department of Justice (DOJ) has issued a 13-page legal opinion defending the decision to temporarily reassign Defense Department attorneys to help handle immigration cases, arguing the move complies with federal law governing the use of military personnel in domestic roles.
Assistant Attorney General Thomas Elliot Gaiser, of the Office of Legal Counsel, wrote that Defense Secretary Pete Hegseth is permitted to detail these lawyers to the DOJ because they will be working “on a full-time basis, in an entirely civilian capacity, under the supervision of civilian DOJ supervisors.”
“Under our longstanding view, those conditions are sufficient to comply with the PCA’s terms,” Gaiser wrote, referring to the Posse Comitatus Act (PCA), a law some critics had cited as a potential barrier to the plan.
Why the Decision Matters
The DOJ oversees the immigration court system, where immigration judges decide whether noncitizens may remain in the United States or must be removed.
In August, Hegseth authorized the detailing of up to 600 military lawyers—Judge Advocate Generals (JAGs)—to the DOJ to serve as temporary immigration judges. The plan also includes 150 attorneys with both military and civilian backgrounds who will help process the growing caseload as some judges have left the bench and hiring slowed under the Trump administration.
The DOJ’s Executive Office for Immigration Review (EOIR) had roughly 700 immigration judges at the end of the Biden administration. Under the second Trump administration, that number has dropped to around 600, with some judges reportedly dismissed without clear explanation.
The Posse Comitatus Act is a federal law that generally restricts the use of federal military forces for domestic law enforcement by the federal government or other government bodies.
How DOJ Justifies the Move
The DOJ’s position is that these reassigned lawyers will not be acting as military personnel enforcing domestic law, but instead will be serving in purely civilian roles, consistent with past instances of temporary interagency details.
Critics argue that because the lawyers originate from the Pentagon, they are, in essence, military personnel and therefore their involvement raises PCA concerns. The DOJ counters that the key legal distinction is their status and function at the time of service—if they are detailed to serve in civilian capacities under civilian oversight, they fall outside the PCA’s restrictions.
The law and policy journal Just Security, which describes itself as independent and nonpartisan, noted that while it opposes the administration’s plan, a central unresolved question is whether “these newly assigned JAGs will act in an entirely civilian capacity or if they will continue to function under their usual military chain of command.”
Gaiser’s memo outlines a five-part rationale for Hegseth’s authority, focusing on:
- Whether federal law permits interagency details of lawyers, including military attorneys
- Their potential designation as “Special Assistant United States Attorneys” (SAUSAs) or temporary immigration judges
- How appropriations and reimbursement are handled between agencies
- The legal interpretation of their status as civilian versus military personnel
- Historical practice and statutory changes over time
“Federal law permits interagency details of lawyers, including military lawyers, to serve as either SAUSAs or temporary IJs. The precise method of doing so may vary slightly, however, between the two programs,” Gaiser wrote.
He further emphasized that Hegseth has “broad discretion to detail personnel to other federal agencies to serve a federal purpose, subject to the limitations of appropriations law.”
Although Gaiser notes that some relevant statutes have been amended in recent decades, he maintains that these updates do not alter the DOJ’s longstanding understanding that such details are permissible.
One issue he acknowledges as complicated is reimbursement: typically, the agency receiving detailed personnel pays their costs, and the Justice Department is expected to do so “as a general matter.” However, he notes that some of the reassigned lawyers may serve on a non-reimbursable basis.
Concerns About Experience and Fairness
Critics of the plan argue that even if the arrangement is technically lawful, it risks placing inexperienced judges in charge of life-altering decisions in one of the most complex areas of law.
Immigration attorney Charles Kuck, founding partner at Kuck Baxter Immigration in Atlanta, previously told Newsweek:
“Just what the Immigration Court needs—more lawyers with no experience in a wildly complicated field with defendants’ lives on the line on each decision. This is not a joke. It’s a travesty.
Without a doubt, the immigration court system is broken. But this is not the way to fix it. Politicizing judges is the worst possible outcome for the immigrants in deportation proceedings.”
Lisa Koop, national director of legal services at the National Immigrant Justice Center, also criticized the plan, telling Newsweek:
“While immigration court backlogs and dysfunction are not unique to this administration, the immigration judge ‘shortage’ is a problem of the Trump administration’s own making, a result of the firing of dozens of qualified judges since January.
Asking military attorneys with limited or no immigration experience to decipher the U.S. immigration code and administer justice is misguided; it is clearly intended to lead to speedy deportations in lieu of due process and just outcomes. In reality, this move will lead to years of tangled litigation and mishandled immigration cases. The victims will be immigrants seeking their fair day in court who are being set up to always lose, regardless of their clear eligibility for protections created by Congress and recognized by every single administration except this one.”
Chief Pentagon spokesman Sean Parnell, in a previous statement to Newsweek, defended the broader effort:
“The Department remains committed to continuing our support for our interagency partners, bringing the skill and dedication of America’s service members and civil servants to deliver justice, restore order, and protect the American people. Beyond this, we don’t have any additional details to provide at this time.”
What Comes Next
For now, the Defense Department is expected to continue reassigning lawyers to the DOJ under the legal framework laid out in the OLC opinion, as the administration seeks to manage a heavy immigration caseload.
Legal challenges and policy objections may continue, but unless courts or Congress intervene, the administration appears poised to proceed with a model that relies on military-trained attorneys serving in temporary civilian roles within the immigration court system.
