Why is the Biden administration reviving one of Trump’s worst censorship policies?
In his State of the Union address earlier this month, President Joe Biden referenced plans to dismantle America’s long-standing asylum program with the help of Congress through a “border bill.” While that bill has been stymied by Republican anti-immigration hard-liners—who view the bill’s harsh anti-immigrant components as not severe enough—without Congressional action, Biden might still block asylum-seekers through administrative action, largely shielded from public scrutiny. With such high stakes, the public’s ability to understand and assess these moves becomes increasingly crucial. Unfortunately, instead of increasing transparency, the administration is hampering the public’s access to information in the most anti-democratic of ways: They are silencing civil servants who are among the most equipped to describe what is happening within the immigration system: immigration judges.
More than four years ago, we—immigration law professors who teach across the country—decried the Trump administration’s gag rule against immigration judges speaking out about our immigration system. We were relieved when, in the first year of the Biden administration, immigration judges regained their ability to accept public speaking engagements and share their insights. However, in recent weeks, the Biden administration has begun mimicking the Trump administration’s silencing of these judges. This move comes just as Biden quietly tries to undermine the asylum system in the lead-up to the election.
AdvertisementThrough a February directive from the nation’s top immigration judge, leaders of the immigration judges’ union were admonished that while their rights to participate in written and speaking engagements “may have existed previously,” those rights were no longer “valid.” Instead, Chief Immigration Judge Sheila McNulty referenced a 2020 Federal Labor Relations Authority decision stripping the union of collective bargaining rights as the justification for a new position that immigration judges could only write or speak publicly after a supervisory review through the Justice Department which would only be granted when “necessary.” As a result of the directive, immigration judges have canceled appearances at a National Press Club event on immigration, and they have not been able to respond to media requests. As an immigration judge told us this week, “HQ wants control over every detail of our professional lives.”
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Laila L. Hlass, Elora Mukherjee, Carrie L. Rosenbaum, and Maureen Sweeney
Let Immigration Judges Speak
Read MoreThis new directive from the nation’s top immigration judge threatens democratic decisionmaking on one of the most important issues to voters. Immigration judges have long had the right to engage in public conversation in their personal capacity. Congressional leaders in both parties have recognized the critical importance of immigration judges speaking out. In May 2021, Democratic Senate leaders urged the Biden administration to reverse the prior administration’s gag order on immigration judges. More recently, the spokesperson for Republican House Judiciary chair Jim Jordan criticized the Justice Department’s “censoring [of] immigration judges.”
The immigration judges’ union has traditionally served as a voice for the judges’ concerns over everything from working conditions to the importance of judicial independence and the dangers of politicized decisionmaking. The administration’s attempts to silence this voice hinders the ability of judges to do their job effectively. The new gag order on immigration judges and their union is particularly problematic because of immigration judges’ precarious position. Immigration judges answer to and serve at the pleasure of the attorney general.
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Gag rules on immigration judges are likely unconstitutional as well. The Supreme Court has repeatedly held that people do not surrender their free speech rights when they accept government employment. As citizens, federal employees retain their rights to speak on issues of public importance. The government can silence them only if it can show that its interest in doing so outweighs the employees’ interests in speaking and the public’s interest in hearing what they have to say. The Biden administration cannot make such a showing here. National security interests are not implicated and transparency will allow voters to make better-informed choices in the election.
AdvertisementThe president, through the Department of Justice, must reverse this new gag rule on immigration judges. Silencing the speech of public servants who have long had the right to speak is an affront to our democratic principles. Transparency and a commitment to humanitarian protection are core democratic values. In his State of the Union, the president proclaimed “freedom and democracy are under attack … at home.” He must ensure that these ideals do not come under attack by his own administration. Free speech by civil servants is fundamental to a healthy democracy. The president can easily restore immigration judges’ free speech rights and must do so immediately. Failing to do so would be an abdication of Biden’s pledge to keep this nation from moving any closer to being an authoritarian state.
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