Trump urges SCOTUS to halt immigration judges’ free speech challenge

WASHINGTON (CN) — President Donald Trump asked the Supreme Court on Friday to prevent a lower court review of an administrative board’s competency amid an ongoing fight over the free speech rights of immigration judges.

An appeals court ordered the inquiry into whether the Merit Systems Protection Board and Office of Special Counsel are meeting their obligations amid Trump’s efforts to oust critics. Trump pushed the justices to pause the ruling, calling the inquiry a “fishing expedition” that risks intrusive and needless discovery and raises serious separation-of-powers concerns.

“If qualms about an agency’s ‘independence’ permit ignoring Congress’s decision to channel claims to that agency, it could be open season on agency-review processes in the Fourth Circuit,” U.S. Solicitor John Sauer wrote.

Chief Justice John Roberts, a George W. Bush appointee, quickly granted an administrative stay on Friday afternoon, temporarily pausing proceedings until the high court rules on Trump’s application.

The dispute began as a policy challenge to a rule barring immigration judges — U.S. attorney general-appointed attorneys who preside over deportation cases — from publicly expressing personal views on immigration. The National Association of Immigration Judges filed suit in 2020, but it was dismissed in 2023 for jurisdictional issues.

On appeal, the association argued the lawsuit should be treated as an enforcement challenge to an unconstitutional policy, rather than an employment action that must go through the Merit Systems Protection Board.

The Fourth Circuit, however, raised serious concerns about whether the board and special counsel can independently review adverse actions against federal employees, noting that Trump fired the Office of Special Counsel chief and removed merit board members earlier this year.

These and other adjudicatory boards were created under the Civil Service Reform Act.

Trump argued that Supreme Court precedent required that federal employees exhaust administrative remedies before filing a case in federal court. The administration chastised the appeals court for trying to revise precedent based on recent factual developments.

“‘[U]nelected judges’ do not get ‘to update the intent of unchanged congressional statutes if the court believes recent political events…alter the operation of a statute from the way Congress intended,’” Sauer wrote. “Further, the court of appeals’ unheard-of approach to channeling risks ‘far-reaching implications’ for all manner of jurisdictional schemes, which may be textually unambiguous yet susceptible to concerns that those schemes too are purportedly not working as Congress intended.”

If the Supreme Court did not intervene now, the administration warned that the government wouldn’t lose its opportunity to challenge the Fourth Circuit’s decision. The Trump administration said it would ask the justices to formally review the issue on the court’s merit docket to prevent other lower courts from issuing similar rulings.

“The court of appeals’ novel jurisdictional rule apparently demands constant relitigation of the present-day ‘functionality’ of the CSRA, as well as every agency-review scheme that might be said to have been undermined by subsequent factual events,” Sauer said. “Indeed, other district courts are already tilting at that windmill, perversely preventing the CSRA from working as Congress actually intended and depriving the MSPB of matters that Congress reserved for its resolution in the first instance.”

Roberts asked the association to respond to Trump’s application by Dec. 10.

Trump’s emergency appeal comes days before the Supreme Court hears oral arguments over the legality of executive branch firings on administrative boards.

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