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| Photo: Katie McTiernan/Anadolu Agency/Getty Images |
In a move that will prove to be all smoke and mirrors, the House Judiciary Committee is set to consider a bill that would displace immigration courts and their parent agency from the Justice Department and create an independent court outside the executive branch.
Although touted as a way to cut down on bureaucracy and politics and instead ensure swifter justice, the structure created by HR 6577—the proposed Real Courts, Rule of Law Act—would prove ineffective when paired with the stagnant immigration enforcement wing of the federal government and be crippled by its own growing pains.
Let’s put aside the legitimate constitutional questions of replacing the authority granted to the U.S. attorney general with an Article I court outside the executive branch. This restructuring is both ill-conceived and ill-timed, and could serve only as the metaphorical straw that finally breaks the back of our immigration system.
The notion of an immigration court unattached to the executive branch is not new. The National Association of Immigration Judges, a union, has lobbied for this position in an attempt to move outside the auspices of the Justice Department. This effort intensified in 2017, as the courts’ parent agency, the Executive Office for Immigration Review, attempted to introduce performance metrics as a method of tracking case efficiencies.
The renewed push comes from the misguided notion that moving the courts outside the Justice Department would speed up their efficiency and somehow be the lynchpin to unclogging the more than 1.5 million cases pending before immigration courts nationwide. Numerous reasons exist for that backlog, as my colleagues Cully Stimson and Giancarlo Canaparo argued here, and ways also exist to radically eliminate that backlog, as they opined in their research.
The simple question that Congress should be asking is: Would creating a new court fix the problem? The answer is clear: no. --->READ MORE HERE
On April 5, the House Committee on the Judiciary will mark up H.R. 6577, the “Real Courts, Rule of Law Act of 2022”. The purpose of the bill is to set up an “independent” immigration court system separate from the executive branch under Article I of the U.S. Constitution. Such a court is a bad idea (not to mention unconstitutional), but the text of that bill — to say nothing of its timing and the process under which it is being considered — makes that bad idea even worse.
Background on the Immigration Courts. By way of background, there are two administrative bodies that currently do the work that H.R. 6577 proposes shifting over to the new Article I tribunals.
The first are the immigration courts under the Office of the Chief Immigration Judge (OCIJ) in DOJ’s Executive Office for Immigration Review (EOIR). There are 66 such courts throughout the United States, which are currently staffed by just fewer than 600 immigration judges (IJs).
IJs are judges, but unlike judges in the federal district and circuit courts, they are not located within the judicial branch. Rather, as their placement in DOJ suggests, they are attorneys appointed by the attorney general (AG) to conduct certain immigration hearings, including removal proceedings under section 240 of the Immigration and Nationality Act (INA).
Why does the AG need IJs? Section 103 of the INA largely vests the secretary of Homeland Security with authority for administering and executing the immigration laws (responsibilities that he shares with the secretary of State), but that statute makes clear that, when it comes to questions of law, the AG is in charge. --->READ MORE HERE
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