By John Kruzel
WASHINGTON, May 26 (Reuters) – The U.S. Supreme Court sided on Tuesday with President Donald Trump’s administration in a dispute involving a free-speech challenge by federal immigration judges to a U.S. government policy restricting what they can publicly say about immigration.
The court’s ruling did not address the legality of the policy’s speech restraint, which was first implemented in 2017 during Trump’s first term as president, and appeared to leave the door open for an association representing the judges to continue pursuing their legal challenge in a lower court.
Trump’s administration appealed to the justices after the Richmond-based 4th U.S. Circuit Court of Appeals ordered findings on whether his firings of the heads of agencies overseeing federal worker complaints had stripped these agencies of the independence from White House control that Congress had intended.
Such a finding, the 4th Circuit said, might entitle the immigration judges to their day in court, rather than channel the dispute into agency proceedings, as Trump’s administration argued for in its appeal.
The Supreme Court, in an unsigned ruling, reversed the 4th Circuit’s decision and returned the case to that court for further proceedings. The justices faulted the 4th Circuit for basing its ruling on an argument that had not been raised by the National Association of Immigration Judges, violating what is known as the “party-presentation” principle.
Alex Abdo, a lawyer at the Knight First Amendment Institute that represents the association, expressed disappointment at the outcome on Tuesday.
“Forcing public employees to wade through cumbersome and potentially futile administrative proceedings before challenging prior restraints allows unconstitutional censorship to persist,” Abdo said.
“Now more than ever, we need the insights of the nation’s immigration judges and other public employees to understand the work of our government,” Abdo added.
The speech policy underlying the dispute requires immigration judges to get prior approval before any “official” remarks. Such speaking engagements are those in which a judge “is invited to participate in an event because of their official position, is expected to discuss agency policies, programs or a subject matter that directly relates to their official duties or otherwise appear on behalf of the agency,” according to court records.
The association sued in 2020 aiming to block the policy, arguing it violated the U.S. Constitution’s First Amendment protections against government abridgment of free speech.
The Executive Office for Immigration Review, the U.S. agency that employs some 750 immigration judges and oversees the nation’s immigration courts, enacted the policy. The policy subsequently was reviewed but left in place by Democratic President Joe Biden’s administration and maintained by Trump’s current administration.
A Virginia-based federal judge in 2023 dismissed the court challenge, saying a 1978 U.S. law called the Civil Service Reform Act dictated that its challenge should be brought before the independent U.S. agencies that typically handle federal worker complaints, rather than in court.
Under that law, certain federal worker complaints are reviewed by the Office of Special Counsel, which decides whether to bring the case to the Merit Systems Protection Board to adjudicate the claim.
But the 4th Circuit last year said that Trump’s firing of the heads of these agencies had raised serious questions about whether the immigration judges could get a fair hearing before the agencies. It ordered the judge to conduct fact-finding on that question, prompting the Trump administration’s appeal to the Supreme Court.
Trump has removed numerous independent agency heads despite laws shielding these officials from being fired at will.
The Supreme Court in a separate case is expected to resolve by the end of June the Trump administration’s argument that such removal protections unconstitutionally constrain presidential power.
The Supreme Court has backed Trump in several immigration-related rulings issued on an emergency basis since his return to the presidency, including allowing him to deport migrants to countries other than their own and to revoke temporary legal status for hundreds of thousands of Venezuelan immigrants.
The court also is expected to rule by the end of June on the legality of Trump’s directive to restrict birthright citizenship in the United States and the administration’s bid to revoke temporary legal protections for more than 350,000 Haitians and about 6,100 Syrians living in the United States.
(Reporting by John Kruzel; Editing by Will Dunham)
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