Justices give Trump a win on federal worker speech crackdown 

WASHINGTON (CN) — The Supreme Court on Tuesday shut down a challenge to a Trump administration policy preventing Department of Justice personnel from speaking publicly about their views on immigration.

Last year, an appeals court revived a challenge from immigration judges — U.S. attorney general-appointed attorneys who preside over deportation cases — after President Donald Trump sought to wrest control over federal employee governance.

But the Supreme Court said the Fourth Circuit overstepped, violating the rules of party presentation by ruling on issues outside of the dispute in front of them.

“That principle — the ‘rule that points not argued will not be considered’ — distinguishes our adversarial system of justice from an inquisitorial one,” the court wrote in a per curiam opinion. “Because courts are ‘essentially passive instruments of government,’ we rely on the parties to ‘frame the issues for decision’ and decide ‘only the questions presented.’”

Unlike judges or justices under the judicial branch, immigration judges are governed by the executive branch and make decisions according to administrative policies. As such, they operate as federal employees subject to the president’s policies instead of impartial arbiters of the law.

In 2017, the first Trump administration issued new guidance limiting immigration judges’ personal speech, putting an end to their participation in lectures at conferences, universities and other events. The policy allows immigration judges to speak in an official capacity, but they claim this requires them to act as spokespeople for the government.

The nonpartisan National Association of Immigration Judges filed a First Amendment challenge on behalf of the employees in 2020. The group said its 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.

Under the Civil Service Reform Act, federal employees must exhaust administrative remedies before filing a case in federal court. And a lower court held that the National Association of Immigration Judges’ lawsuit violated those rules, dismissing it for jurisdictional issues in 2023.

On appeal, the case collided with Trump’s second term push to oust any opposition in the federal government ranks. After he fired the Office of Special Counsel chief and removed Merit Systems Protection Board members last year, the Fourth Circuit ordered an inquiry into whether the board and office were meeting their obligations, reviving the immigration judges’ case.

The Supreme Court rejected an emergency appeal from the Trump administration in December seeking to block the “fishing expedition.” The court explained the administration hadn’t demonstrated that it would be irreparably harmed by the review.

On Tuesday, the justices decided to reverse the appeals court decision after the administration filed a certiorari petition. The court said the appeals court erred by granting review beyond what the immigration judges asked for.

“The court transformed respondent’s argument that the CSRA did not channel its claims into one that the CSRA might not — in light of current conditions — channel any claims,” the Supreme Court wrote. “And the court did so without giving either side a chance to address its theory.”

By transgressing the party-presentation principle, the court said, the Fourth Circuit abused its discretion.

“Federal courts are not ‘roving commissions’ licensed to ‘sally forth each day looking for wrongs to right.’”

Justice Clarence Thomas, a George H.W. Bush appointee, penned an additional concurrence on the merits of the Fourth Circuit’s ruling. He wrote the appeals court ignored Supreme Court precedent to address Trump’s actions.

“The Fourth Circuit strained to avoid dismissal of the case based on its belief that new political considerations changed the governing law,” Thomas wrote, joined by Justice Amy Coney Barrett, a Trump appointee.

Thomas rebuked the appeals court for trying to rewrite federal law based on its interpretation of its application.

“Statutes change only when Congress changes them, not when judges decide that they no longer vindicate Congress’ purposes,” Thomas wrote.

Representing the immigration judges, Alex Abdo, litigation director at the Knight First Amendment Institute, said it was disappointing that public servants can’t go directly to the court to protect their free speech rights.

“Forcing public employees to wade through cumbersome and potentially futile administrative proceedings before challenging prior restraints allows unconstitutional censorship to persist,” Abdo said in a statement. “Now more than ever, we need the insights of the nation’s immigration judges and other public employees to understand the work of our government.”

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