In an intended show of good faith exalting their newly repaired relationship following the 2024 GOP presidential primaries, President Donald Trump in July publicly approved Gov. Ron DeSantis’ request to turn members of the Florida National Guard into immigration judges.
“He didn’t even have to ask me,” Trump said at the time, jovially noting that although he and DeSantis had a particularly vicious fallout just months earlier, their “matching blood” keeps them together.
“He has my approval.”
But three months later, the Florida National Guard still hasn’t received instructions to train its nine attorneys within the Judge Advocate Generals Corps (JAGs) as temporary immigration judges, a spokesperson told the Florida Phoenix. This came even after the White House in August watered down the requirements to temporarily preside over the deportation hearings.
Previously a quiet position, immigration judges — the only authorities who can revoke green cards and issue final orders of removal to certain noncitizens being deported — have dominated headlines after 125 of them have either been fired or resigned this year alone, down from about 700 judges at the beginning of the year, NPR reported.
Although the eliminations align with the Trump administration’s promise to cut waste and streamline governmental efficiency, the judge shortfall is rapidly being backfilled by about 600 regular military lawyers newly authorized to work as temporary immigration judges. NPR reports that their training will last roughly two weeks.
But even as deportations ramp up, and DeSantis continues to suggest the Florida National Guard’s JAG officers be trained to facilitate deportations at Florida’s so-called “Alligator Alcatraz” and “Deportation Depot” camps, the Trump administration has fallen quiet about why Florida’s JAGs haven’t been brought in.
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A White House spokesperson referred the Florida Phoenix’s requests for comment to the Executive Office of Immigration Review, which declined to comment other than pointing out the Aug. 28 rule allowing U.S. Attorney General Pam Bondi to select any attorney as a temporary immigration judge.
This overhauled past requirements mandating a temporary immigration judge had previously served as either a DOJ attorney with 10 years of immigration law experience or a judge within the executive branch.
Immigration judges are unique because, unlike Article III judges, they aren’t independent of the president. Instead, they’re housed within the Department of Justice and selected by the U.S. attorney general. Temporary immigration judges serve for just six months.
So, even though both Trump and DeSantis have endorsed the move, and as other military lawyers begin to file in, why haven’t Florida National Guard JAGs been tapped to serve?
What are some of the reasons JAGs aren’t immigration judges yet?
Elizabeth Blandon, a Broward-area immigration attorney who served as chair of the Immigration and Nationality Law Certification Committee, speculated that mounting legal obstacles could be in the way.
These could include the Posse Comitatus Act, an 1878 federal statute banning the military from directing commands at civilians. The post-Reconstruction statute ended the U.S. Army’s role in protecting formerly enslaved people immediately following the Civil War.
The Florida National Guard — a part-time volunteer force trained to respond to disasters and go to war when called upon — is made up of an Army branch and an Air Force branch.
“The [temporary immigration judge] plan violates the PCA because — without express authority from either the Constitution or a statute — members of the Army and the Air force are prohibited from carrying out enforcement laws against civilians,” Blandon said in a written statement.
This isn’t the first time the Posse Comitatus Act has come to the national forefront. In 1986, then-Deputy Assistant Attorney General Samuel Alito, now a Supreme Court Justice appointed by George W. Bush, wrote a memo recommending against having a military lawyer work part-time on civilian law enforcement duties while still serving in a military role.
“Military lawyers who are not functioning in an entirely civilian environment should not be used to perform any prosecutorial function that involves direct contact with civilians in a law enforcement context,” Alito wrote. Of note, he was not specifically referring to immigration judges.
Margaret Stock, an immigration lawyer, retired Army Reserve lieutenant colonel in the Military Police, and former West Point professor, acknowledged that although the Posse Comitatus Act could be a problem, the larger impediment is likely practical.
Because the National Guard is part-time for many, including the JAGs, asking them to participate would require them to clear their schedules, volunteer, and begin training — all of which require money Stock says Congress would have to approve.
“I’m not too surprised that no [JAG] has actually been assigned to be an immigration judge yet, because it takes a while to mobilize people, get volunteers, pick people, then train them, and finally get them in place,” Stock said.
“Congress has the power of the purse, and you can’t spend money on things Congress hasn’t authorized.”
Immigration law is uniquely complicated, entailing a range of highly specific subspecialties. Many of the attorneys the Florida Phoenix contacted decline comment or deferred to lawyers specializing in deportations.
Where did the JAG idea come from?
DeSantis in May submitted an “Immigration Enforcement Operations Plan” to the Trump administration in which he proposed Florida’s nine National Guard JAGs become immigration judges.
JAG officers are attorneys who help fellow National Guard members with a wide range of legal problems, including courts-martial and military-civil matters. Trump appeared enthusiastic about the idea in early July, when he met with DeSantis to laud the opening of the Everglades detention center.
After the conservative politicos faced off in their primary race in 2023, Trump offered high praise for the Florida governor, insisting the two would always be friends. Extending an olive branch, Trump praised DeSantis and his officials, even calling former DeSantis staffer and appointed Florida Attorney General James Uthmeier “handsome.”
DeSantis had pushed hard for Florida to take the lead on immigration crackdown efforts, muscling through the Legislature a sweeping immigration crackdown package that mandated all counties partner with ICE to enforce federal immigration laws, removing in-state tuition for undocumented college students, and creating state-level crimes for illegally entering Florida.
Earlier this week, a reporter asked DeSantis during a Gainesville press conference whether the National Guard JAGs were any closer to working as temporary immigration judges. DeSantis, who revealed that he pitched the idea to Trump over the summer, skirted the question by decrying “bureaucracy” and stressing the need to speed along immigration proceedings.
“I know there were some in DOJ that just wanted [immigration judges] to be drawn from purely civilian rather than the uniformed services but, whatever, we want to be supportive and we want to be able to help,” DeSantis said Monday.
“If you have a right to be here, then you have a right to be here, right? But if you don’t, are we going to do like an O.J. Simpson trial just to deport somebody who’s here illegally?” he added, implying that the due process of a lengthy trial would be improper for a non-citizen.
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