When the framers of the U.S. Constitution set out to define the basic structure of our nation and our democracy, they created what has become known as a tripartite system. There were to be three separate, but equal branches of government: the legislative branch, which creates our laws; the executive branch, which is responsible to carry out the laws enacted by the legislative branch; and the judiciary, which is charged with determining the validity of the laws, interpreting the laws and administering justice according to law. The tripartite system was supposed to create a system of checks and balances, ensuring that no one branch of government could become all-powerful, thereby threatening the foundations of democracy.
In order for the checks and balances of the tripartite system to be effective, an independent judiciary is essential. If the judiciary is controlled or unduly influenced by either the legislative or the executive branch, it becomes too easy for that controlling branch to assume excessive power. Regrettably, the executive branch, through recent actions by the attorney general of the United States, has attempted to improperly control the judiciary by actions that are a direct violation of the principle of judicial independence.
Immigration judges operate under the Department of Justice. They are considered to be federal administrative law judges, operating within the Executive Office for Immigration Review. As federal administrative law judges, their activities are controlled and protected by the Federal Administrative Procedures Act. They, like any other administrative law judge, are entitled to judicial independence. Their decisions are not to be directed by others, nor are they supposed to be influenced by partisan politics.
In fact, in a description of the qualification standards for administrative law judges, the Federal Office of Personnel Management mandates that “ALJs serve as independent impartial triers of fact in formal proceedings requiring a decision on the record after the opportunity for a hearing.” Going further, as a condition of employment, “ALJs must be held to a high standard of conduct to maintain the integrity and independence of the administrative judiciary.”
And yet, despite these protections, Attorney General Jeff Sessions made a direct attack on the judicial independence of Immigration Judge Steven Morley in the matter of Reynaldo Castro-Tum.
This case involves a deportation or removal proceeding brought by the Department of Homeland Security. The matter was assigned to Morley, an immigration judge sitting in Philadelphia. Castro-Tum evidently did not appear for any hearing that had been scheduled. Morley concluded that Castro-Tum had not received the hearing notices, as there was evidence that the address originally given for him was incorrect. Morley then made a decision to “administratively close” the matter, a standard procedure by which the matter would be put into a suspended status until such time as the government could prove that it had a valid address for Castro-Tum. Sessions ordered the case to be reassigned to an assistant chief immigration judge, who normally sat in Washington. The assistant chief immigration judge then came to Philadelphia and immediately issued an order of deportation, even though Castro-Tum’s whereabouts were still unknown.
The actions of the attorney general represent a blatant incursion into the right of Morley to act independently and without political or partisan pressure. Such attacks on judicial independence are a grievous assault on one of the structural legs of our tripartite system. Judges who find that their actions are countermanded by political appointees, or that are directed by those appointees, are judges whose very authority is improperly called into question.
It is not sufficient for us to merely call out the actions of the attorney general in this one instance. Actions such as this, if not challenged, will soon become the norm and not just an aberration. The judicial independence of Social Security judges, judges of the National Labor Relations Board and other administrative law judges may come under attack to devastating effect.
As lawyers and judges, we recognize and respect the absolute necessity of judicial independence. A system in which the ability of a judge to render a decision solely on the merits of the matter at hand is placed at risk is a system in which democracy itself is at risk. Societies in which judicial independence is abrogated are those societies in which the rule of law quickly becomes nonexistent. Unless we are content to allow the United States to fall into this abyss, we must stand firm and demand that these assaults on our basic systems, and our core values, cease and desist.
If you believe in the importance of judicial independence and the rule of law, take action now: Call or write your representatives in Congress and the Senate and urge them to take action to stop these unlawful attacks by the attorney general on one of the core principles of our society.
A. Michael Snyder (ret.) and Jennifer S. Coatsworth are the president and chancellor, respectively, of the Louis D. Brandeis Law Society Foundation in Philadelphia.