Trump administration asks Supreme Court to settle dispute over immigration judges

Updated on Dec. 5 at 2:40 p.m.

For the 32nd time since late January, the Trump administration on Friday came to the Supreme Court seeking emergency relief. In a 26-page filing, U.S. Solicitor General D. John Sauer asked the justices to block a ruling by a federal appeals court that sent a dispute over a policy governing speaking engagements by immigration judges back to a federal trial court for fact-finding. Federal law, Sauer argued, makes clear that the trial court lacks the power to consider the group’s claim, because judges are required to challenge the policy through an administrative process.

The dispute began when the National Association of Immigration Judges went to federal court in Alexandria, Virginia, to challenge the policy, which requires immigration judges to obtain permission before making any “official” speeches – such as immigration conferences and pro bono training. Immigration judges are not required to obtain clearance for speeches that they make in their personal capacity, such as speaking before community groups on topics that are not directly related to immigration. The group contended that the policy violates the First Amendment by (among other things) prohibiting “judges from sharing their private views on immigration law or policy issues, or about the agency that employs them.” 

U.S. District Judge Leonie Brinkema granted the government’s motion to throw out the case. She pointed to the Civil Service Reform Act, a federal law enacted in the wake of the Watergate scandal that sets up a scheme to review federal employees’ claims that they have been subject to prohibited conduct, such as discrimination or retaliation. When it passed the CSRA, she wrote, “Congress intended to preclude district-court jurisdiction over” claims like the NAIJ’s.

The U.S. Court of Appeals for the 4th Circuit sent the case back to the district court. Although it agreed with Brinkema’s conclusion that “Congress designed the CSRA to divest district courts of jurisdiction to review legal challenges like those raised by NAIJ,” it questioned whether the two entities where the CSRA would normally channel the NAIJ’s claim – the Office of Special Counsel and the Merit Systems Protection Board – are still working as Congress intended. Specifically, the court of appeals observed, when it issued its opinion in June 2025, the MSPB did not have a quorum, which would prevent it from acting on petitions for review. Moreover, the 4th Circuit wrote, although Congress intended the MSPB and the Office of Special Counsel to be independent, the Trump administration now argues that the president can remove both the Special Counsel and members of the MSPB for any reason.

The court of appeals therefore instructed the district court to “conduct a factual inquiry [into] whether the CSRA continues to provide a functional adjudicatory scheme.” By a vote of 9-6, the full 4th Circuit on Nov. 20 rejected the government’s request to reconsider the case.

Sauer came to the Supreme Court on Friday morning. He told the justices that the dispute was “the rare case where the court of appeals’ decision is so evidently contrary to this Court’s precedents that it calls for summary reversal” – that is, reversing the 4th Circuit’s decision without briefing or oral arguments on the merits – “on two independent grounds.” First, he contended, the court of appeals was wrong to send the case back based on an argument that the NAIJ had refused to make. Second, he wrote, the Supreme Court “has already held that the CSRA channels federal-employment claims to the MSPB,” and “‘unelected judges’ do not get ‘to update the intent of unchanged congressional statutes if the court believes recent political events … alter the operation of a statute from the way Congress intended.’”

Sauer also cautioned that the 4th Circuit’s decision has already created “destabilizing uncertainty” that could “extend beyond federal personnel actions” to other “administrative-review schemes that preclude district-court jurisdiction,” such as the Federal Trade Commission. Sauer assured the justices that he planned to file with the court a petition for review of the lower court’s decision “in the coming weeks,” and he asked the justices to issue an administrative stay, which would put the 4th Circuit’s ruling on hold to give them time to consider that request, before the lower court’s ruling goes into effect on Dec. 10.

Chief Justice John Roberts, who handles emergency appeals from the 4th Circuit, on Friday afternoon issued an administrative stay that blocks the lower court’s ruling from going into effect while the justices consider the government’s request. The NAIJ’s brief is due on Wednesday, Dec. 10, by 4 p.m. EST.