By: Sean Buss
Published: February 23, 2026
In recent months, there has been significant criticism surrounding the assignment of state and federal judge advocates general (“JAGs”) as temporary immigration judges (“IJs”).[1] As of September 2025, both the Florida National Guard and the Department of Defense have announced their intentions to deploy hundreds of state and federal JAGs as IJs in order to ameliorate the massive case backlog in immigration courts—a backlog that has significantly worsened in the wake of mass arrests due to this administration’s myriad of hardline immigration policies.[2] But a fundamental question remains: is the use of active duty military personnel as immigration judges legal? Based on a combination of statutory restrictions, judicial precedent, and the Constitution itself, the answer is a resounding no.
Immigration is a complicated realm of law, however, and some background is needed to understand why this question is so fraught. Immigration proceedings—from removal, to naturalization, and beyond—are governed by the Immigration and Nationality Act (“INA”), which serves as the foundation of modern American immigration enforcement and adjudication.[3] As part of the INA, Congress delegated its plenary immigration regulation power to the executive branch and mandated that “special inquiry officers” would handle the adjudication of all immigration law proceedings that arose pursuant to the INA.[4] Subsequent court challenges resulted in courts holding that Congress’s delegation of their power to regulate immigration satisfied the Due Process Clause of the Fifth Amendment, as the creation of these legal proceedings fell within the same purview as other similar administrative law proceedings authorized by the Administrative Procedure Act (“APA”).[5] Under the INA, special inquiry officers would be hired, trained, and managed by the Department of Justice (“DOJ”), a practice that remained consistent even after they were renamed “immigration judges” and reorganized under the DOJ’s new Executive Office of Immigration Review (“EOIR”).[6]
Traditionally, the standards for permanent and temporary IJs differed, though both were governed by Section 1003(10) of Title 8.[7] Previously, temporary IJs could only be drawn from the ranks of former IJs, former members of the Board of Immigration Appeals (“BIA”), and other active administrative law judges within the executive branch.[8] While former IJs and BIA members were presumptively hirable as temporary IJs, an administrative law judge had to be qualified as such under the APA—that is, they had to actually be administrative law judges in the eyes of the APA, and thus, their appointment and powers were governed by Section 3105 of Title 5, rather than the INA.[9]
Notably, federal JAGs are part of the executive branch, and as such, they are not considered to be administrative law judges under existing case law.[10] Their appointment, jurisdiction, and powers are governed by the Unified Code of Military Justice (“UCMJ”), not the APA. Case precedent establishes that military courts occupy a unique role within the executive branch that is separate from other administrative law courts, meaning that federal JAG corps are not “agencies” within the definition of the APA, and thus, are not subject to administrative law review.[11] Therefore, unless a JAG has served as an IJ or as a member of the BIA before becoming a JAG, they do not qualify as administrative law judges and would normally be ineligible to serve as temporary IJs.[12]
However, as with many executive offices, their internal hiring standards and policies are notoriously malleable at the whim of the Commander-in-Chief. In August 2025, the Trump Administration promulgated a regulatory amendment via unilateral executive order that removed all experience restrictions on the appointment of temporary IJs.[13] Now, any lawyer—including JAGs—can be freely appointed as a temporary IJ without needing to qualify as an administrative law judge, work for the EOIR as an IJ or BIA member, or even demonstrate any prior experience with immigration law.[14]
But even if JAGs can be appointed as temporary IJs, the Administration cannot delegate the power of an IJ to National Guard JAGs through a Delegation of Immigration Authority Agreement (“287(g) Agreement”). These agreements are governed by Title 8 of the U.S. Code under Section 1357(g), which grants state actors statutory authority to aid federal agencies in the investigation, apprehension, or detention of alleged unlawful immigrants[15]. Notably, Florida’s National Guard has signed one such 287(g) Agreement with Immigration and Customs Enforcement (“ICE”), granting them the authority to apprehend and detain alleged unlawful immigrants before remanding them to ICE custody.[16] However, even under this kind of agreement, state JAGs are still barred from serving as IJs pursuant to a 287(g) Agreement alone.[17] The enumerated powers listed in 287(g) Agreements do not grant state JAGs the authority to act as adjudicators of federal immigration law, but merely as enforcers of federal immigration law.[18] Presently, no state JAG has ever been allowed to serve as an IJ based solely on the powers granted by a 287(g) Agreement, and granting them such authority would violate the plain text of Section 1357(g).[19]
However, even if all of these limitations were successfully avoided, all JAGs—regardless of state or federal command—are barred from adjudicating and enforcing civilian law by the Posse Comitatus Act (“PCA”).[20] Under the PCA, the military is restricted from acting as civilian law enforcement or executing any civilian law without express authorization by either Congress or the Constitution.[21] Modern courts have generally laid out a three part test to determine whether military assets have been used to “execute” civilian law:
- “[W]hether civilian law enforcement officials made a ‘direct active use’ of military investigators to ‘execute the law’;
- [W]hether the use of the military ‘pervaded the activities’ of the civilian officials; or
- [W]hether the military was used so as to subject ‘citizens to the exercise of military power which was regulatory, prescriptive, or compulsory in nature.’”[22]
The INA is a civil federal law, and any JAG acting as an IJ pursuant to the INA—e.g., in a removal proceeding—would necessarily be “executing the law” in a manner that was “regulatory, proscriptive, or compulsory in nature.”[23] Thus, by executing immigration regulations and imposing compulsory removal, that JAG would be acting in violation of the PCA.[24]
In order to circumvent the PCA, the executive branch must: (1) cite to either constitutional Congressional authorization or explicit statutory authority that allows the military to act in a civilian law enforcement capacity, and (2) identify some manner in which civilian authorities are unable or unwilling to take action.[25] The single most oft-cited example is the Insurrection Act, which grants the military the ability to enforce civilian law in cases of insurrection, rebellion, and other forms of militarized national emergencies.[26] No such emergency or insurrection has been declared in the state of Florida, nor has the Florida National Guard been federalized pursuant to such a response.
Furthermore, if the statute or emergency invoked is found to be unlawful or unconstitutional, then the executive branch would lack the authority to use the military in any civil adjudication role. By way of example, the President recently federalized the California National Guard in order to quash protests and assist federal immigration enforcement efforts in Los Angeles.[27] A lawsuit was swiftly filed challenging the legality of this federalization, and at time of writing, the case is ongoing while the merits of a preliminary injunction are pending before the United States Court of Appeals for the Ninth Circuit.[28] Crucially, only the core constitutionality of the federalization is currently at issue in that lawsuit, and there has been neither any claim that any federalized JAGs have been used as IJs in California thus far nor has the Insurrection Act itself been invoked to provide a solid statutory grounding for said federalization.[29] Rather, the administration cited to 10 U.S.C. § 12406, alleging that local law enforcement were both A. dealing with a “rebellion” in the form of the ongoing anti-ICE LA protests, and B. that local law enforcement was unable to execute federal law without the aid of the National Guard.[30] But regardless of whether or not the government invokes the Insurrection Act or another federal statute, if the government’s federalization of the California National Guard is deemed unconstitutional, then the PCA would prevent the future use of JAGs as civil immigration adjudicators in California regardless of which law initially authorized the federalization.
Under current law, the use of any kind of military lawyer to adjudicate civil immigration law likely represents an abuse of executive authority, a drastic change from years of institutional policy, and a clear violation of federal statute. The appointment of unqualified JAGs—with no immigration experience—to adjudicative positions with power over a complex area of law represents not only an abrogation of the traditional statutory appointment standards for an IJ, but also a clear violation of the PCA—which prohibits the use of the military to execute civilian laws without clear statutory authority or Congressional authorization. While there have been multiple efforts by the Trump administration to circumvent the limitations of the PCA through regulatory amendments, alternate statutory invocations, and 287(g) agreements with friendly state governments, their efforts nonetheless violate the plain text of the statute in question and will likely be found unlawful.
[1] See Raquel Aldana, Florida Plan to Deputize National Guard Officers as Immigration Judges at Alligator Alcatraz Would Likely Violate Constitutional Rights, The Conversation, https://theconversation.com/florida-plan-to-deputize-national-guard-officers-as-immigration-judges-at-alligator-alcatraz-would-likely-violate-constitutional-rights-260677 (July 18, 2025).
[2] See Ilya Somin, Perils of the Pentagon’s Plan to Use Military Lawyers to Adjudicate Immigration Cases, The Volokh Conspiracy (Sept. 7, 2025, 4:53 PM), https://reason.com/volokh/2025/09/07/perils-of-the-pentagons-plan-to-use-military-lawyers-to-adjudicate-immigration-cases/; see also Ximena Bustillo, Military Lawyers Called up to Relieve a Shortfall in Immigration Judges, NPR, https://www.npr.org/2025/09/02/g-s1-86691/military-lawyers-immigration-judges-jag (Sep. 2, 2025) (noting that the current immigration court case backlog had reached nearly 4 million cases by September 2025).
[3] See generally Immigration and Nationality Act, 8 U.S.C.§1 (2018); see also id. §1229.
[4] See Florence Hall Sender, The Special Inquiry Officer in Deportation Proceedings, 42 Va. L. Rev. 6, 805.
[5] See id. at 806.
[6] See 48 Fed. Reg. 8038 (Feb. 25, 1983).
[7] See 8 C.F.R. § 1003.10 (2025).
[8] See id.
[9] See 5 U.S.C. § 3105 (2025).
[10] See Partington v. Hook, 840 F.Supp.2d 236, 243 (Dist. D.C. 2012); see also Schleisenger v. Councilman, 420 U.S. 738, 757 (1975).
[11] See Partington, 840 F.Supp.2d at 243 (holding that the APA explicitly excluded courts martial, military commissions, and military authorities in the field); see also Schleisenger, 420 U.S. at 757 (noting that military laws and traditions are founded on “unique military exigencies” that have long been recognized as distinctly separate by Congress).
[12] See Partington, 840 F.Supp.2d at 244 (holding that the Navy JAG is not an “agency” for the purposes of the APA, and as such cannot be sued under said statute).
[13] See 90 Fed. Reg. 165, 41883 (Aug. 28, 2025) (amending 8 CFR § 1001, 1003, 1208, and 1240 to bring the appointment standards for temporary IJs in line with the appointment standards for permanent IJs).
[14] See Bustillo supra note 2.
[15] See 8 U.S.C. § 1357 (2025).
[16] See Immigr. & Customs Enf’t., 287(g) MOA TF – Florida National Guard, https://www.ice.gov/doclib/287gMOA/MOA_Between_ICE_FloridaNatGuard_04022025.pdf, Dep. of Homeland Sec. (Feb. 12, 2025).
[17] See id.
[18] See 8 U.S.C. §1357(g) (2025).
[19] See Aldana supra note 1.
[20] See Posse Comitatus Act, 18 U.S.C. § 1385 (2018)
[21] See United States v. Hartley, 796 F.2d 112, 114 (5th Cir. 1986).
[22] See Jennifer K. Elsea, The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, Congr. Res. Serv. (Nov. 6, 2018).
[23] See United States v. Casper, 541 F.2d 1275, 1278 (8th Cir. 1976) (upholding the lower court’s test for determining whether or not the Posse Comitatus Act had been violated pursuant to the doctrine of collateral estoppel).
[24] See Samantha Michaels, Experts Question the Legality of Deploying National Guard Officers as Immigration Judges, Mother Jones https://www.motherjones.com/politics/2025/07/florida-desantis-trump-national-guard-military-lawyers-jags-immigration-judges-legal/ (July 9, 2025) (arguing that a removal order would constitute a compulsory or proscribed exercise of military power pursuant to the military execution of a civilian law).
[25] See 18 U.S.C. § 1385 (2025).
[26] See generally Insurrection Act, 10 U.S.C. § 251 (2025).
[27] See Mikhail Zinshteyn, Trump Broke the Law by Sending National Guard to L.A., Federal Judge Rules, CalMatters https://calmatters.org/justice/2025/09/trump-national-guard-posse-comitatus/ (Sep. 2, 2025).
[28] See id.
[29] See Graham Kates et. al., California Sues Trump Administration for Deploying National Guard to Los Angeles: “Unprecedented Power Grab”, CBS News, https://www.cbsnews.com/news/trump-national-guard-california-lawsuit-gavin-newsom/ (June 9, 2025).
[30] See Kelsey Dallas, The president’s power to deploy troops domestically: an explainer, SCOTUSblog, https://www.scotusblog.com/2025/10/the-presidents-power-to-deploy-troops-domestically-an-explainer/ (October 28, 2025).