The Justice Department says immigration law judges operate as managers, an argument the Federal Labor Relations Authority rejected in 2000.
The Trump administration is looking to strip immigration judges of their rights to unionize, taking aim at a labor group that has vocally criticized some of the president’s major policy initiatives.
The Justice Department filed its petition with the Federal Labor Relations Authority on Friday in an attempt to decertify the National Association of Immigration Judges. The union—originally certified in 1979—represents about 400 judges around the country. The administration is arguing they serve in management positions and are therefore not eligible to unionize.
The effort follows a similar, and unsuccessful, strategy pursued by the Clinton administration. FLRA rejected the Justice Department’s argument in 2000 that immigration judges make policy through the issuance of decisions, noting the judges do not set precedent and their rulings are often appealed and reviewed. FLRA also said the immigration court system was established specifically so judges do not maintain any management duties to enable them to focus on hearings.
Still, a Justice spokesperson said the judges are management officials under the statutory definition. Federal law defines agency managers as “any individual employed by an agency in a position the duties and responsibilities of which require or authorize the individual to formulate, determine, or influence the policies of the agency.”
An FLRA regional director is now likely to open an investigation into the union and its members, seeking information about their responsibilities. Justice will then submit “factual and legal arguments in support of its petition,” the spokesperson said. The regional director can then issue a decision or request a hearing to solicit more information. Either party can appeal the regional director’s decision to the full FLRA board.
In 2000, the regional director rejected Justice’s argument and the full board upheld that decision upon appeal. One of the authority members ruling in the union’s favor was Dale Cabaniss, currently President Trump’s nominee to lead the Office of Personnel Management.
The administration could have pursued another track, as federal statute allows the president to unilaterally issue an executive order stripping employees of collective bargaining rights if they work in intelligence or national security. Presidents Carter, Reagan, George W. Bush and Obama all issued orders to that effect.
“It seems to me if they wanted to get rid of the judges’ union [the administration] would say they are involved with national security,” said one former senior FLRA official, who added the president could have done away with the union “at the stroke of the pen” with little recourse for the group. The Trump administration has repeatedly stressed the national security significance of its immigration-related policies.
Ashley Tabaddor said her union was not notified of the petition and learned about it from information Justice released to the media.
“It appears that the DOJ is repeating their previous unsuccessful effort before the FLRA to disband the union based on the same set of unfounded claims,” Tabaddor said. She called the effort "nothing more than a desperate attempt by the DOJ to evade transparency and accountability and undermine the decisional independence" of her members, adding immigration judges "do not set policies, and we don't manage staff."
Tabaddor, a Los Angeles-based judge, has joined other members of her union in criticizing Justice for creating a quota system on immigration judges, among other issues. The judges have said that by tying the quota to their performance reviews, the administration is creating financial incentives to decide cases more quickly.
“The government has now tied our financial interest in keeping a job with the outcome of our decision,” said Ameina Khan, the NAIJ vice president and a New York-based judge, adding that “right there the integrity of the process as a whole” has now been “put into question.”
Tabaddor has criticized President Trump’s controversial “zero-tolerance” policy that led to family separations at the U.S.-Mexico border as creating unprecedented pressure on the court system, which is now facing a backlog of more than 900,000 cases. She pushed back last year after Trump said increasing the number of judges would lead to widespread “graft” and questioned the need for judges at all, saying the president was making allegations without evidence and her members were “shocked and disappointed” by the comments. Immigration judges have for years pushed for independence from the Justice Department altogether, arguing the attorney general wields too much influence over decision-making and the judges should not split resources with law enforcement.
The Trump administration has overseen an adversarial relationship with federal employee unions, launching several efforts to limit their power and influence. The labor groups are currently fighting to strike down Trump’s executive orders aimed at crippling them, though an appeals court recently ruled the orders can stand pending further litigation.
This story has been updated.