Immigration is Donald Trump's reliable fallback for inflaming his base, the alleged harm posed by immigrants serving as the red meat in inflammatory tweets and executive orders.
At the same time, the administration led by this outspoken president has gagged the judges tasked with enforcing its laws at the border, prompting a lawsuit from those judges and free-speech advocates alleging that the US Constitution has been trampled.
In January 2020, immigration judges received word: under no circumstances could they opine, at a public event or on a call with a reporter, on what happens in their courtrooms — or what they believe should happen there.
Established by Trump-appointee James McHenry, a former ICE attorney turned director of the Executive Office of Immigration Review (EOIR), which oversees the nation's immigration courts, the rule has one exception: judges who serve in an official capacity at their union.
That exception may not last. Also in January, another Trump appointee, Attorney General William Barr, oversaw an effort to decertify that union, arguing that the National Association of Immigration Judges (NAIJ), established in 1979, has been wrongly granted the right to collectively bargain on behalf of its members.
If that effort succeeds — the Federal Labor Relations Authority is expected to rule later this year — then all immigration judges will effectively be barred from speaking about immigration law or policy. For example, judges who spoke to Business Insider about the dangers of conducting court proceedings during a pandemic could, in the future, be terminated for such speech.
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