The Trump Administration displayed profound disdain for long-standing policies and norms, as well as the career federal employees who often serve as their guardians.  Those career officials, formerly disparaged as “bureaucrats,” but more recently collectively cast as “the deep state,” resisted, sometimes by speaking out publicly.

This pattern was particularly pronounced in the field of immigration.  But with respect to immigration judges (“IJs”), the Department of Justice’s Executive Office of Immigration Review (“EOIR”) took action, asserting control over IJs’ extrajudicial statements.  In particular, EOIR required IJs to obtain permission from a newly-established speaking engagement team (“SET team”) before accepting any invitations to speak.  The policy rests upon EOIR’s greatly expanded view of “official speech” subject to agency control.

The National Association of Immigration Judges (“NAIJ”) challenged the policy.[1]  In essence, NAIJ alleged that EOIR had violated the Free Speech Clause by both establishing a prior restraint system that lacked adequate safeguards and prohibiting IJs from discussing matters of public importance.

A District Judge dismissed the case, concluding that the policy was immune from judicial review because the Federal Service Labor-Management Relations Act provided the exclusive means for resolving the dispute over the new policy. Nat’l Ass’n of Immigr. Judges v. McHenry, 477 F. Supp. 3d 466, 471–72 (E.D. Va. 2020). The Act establishes “a dispute-resolution mechanism” for issues that “arise during the collective bargaining process or as part of a final collective bargaining agreement.”  Id..  The District Court did not address NAALJ’s constitutional concerns or the policy’s propriety more generally.  The decision was appealed to the Fourth Circuit. 

After President Biden assumed office, EOIR’s new leadership began a process of revising the disputed policy, but has yet to announce the new policy.  (The Fourth Circuit has stayed its consideration of the case in light of EOIR’s reconsideration of its policy.)

Any judicial decision regarding the constitutionality of any speaking engagement policy could have wide-ranging implications, given the large number of administrative law judges and other administrative adjudicators serving in federal agencies.

The controversy prompted me to write an article.  The article, entitled “Administrative Adjudicator Extrajudicial Speech,” appears in a symposium issue of the Notre Dame Journal of Law Ethics & Public Policy.  In the article, I explore the propriety of extrajudicial speech, contrasting the judicial context (in which the issue has been discussed extensively) with the agency context (in which it has received far less attention). I compare the contexts along seven dimensions.  In the course of the article, I discuss the benefits of permitting extrajudicial speech, the First Amendment constraints on the regulation of such speech. I also present a taxonomy of some of the types of extrajudicial speech that might raise concerns (both in the agency and judicial contexts).

The piece is available on SSRN.  Below is the SSRN abstract for the piece.

Readers of this blog might be interested in other papers in the symposium issue, the theme of which is “The Ethics of Public Service.”  The essay introducing the issue and a table of contents of the contributions are available here.

Abstract: Administrative Adjudicators Extrajudicial Statements (Bernard W. Bell)

While the appropriate scope of extrajudicial speech by members of the federal and state judiciaries has long been the subject of vibrant debate, extrajudicial speech by administrative adjudicators has received much less attention.  Commentators have largely concluded that the restraints on administrative adjudicators should be resemble those constraining the judicial brethren situated in courts, with a few minor accommodations to the unique characteristics of the agency context. Commentators also seem to have assumed that administrative adjudicators themselves would judge their own statements in light of general codes of judicial conduct, much like members of the federal and state judiciaries do. 

But during the Trump Administration, the Executive Office of Administrative Review instituted a policy that broadly prohibited immigration judges both from discussing their views regarding immigration policies and continuing routine interactions with bar groups.  Moreover, to effectual this policy, immigration judges were made subject to a preclearance review regime under which they had to obtain permission from agency supervisors before they could speak on issues regarding immigration.

In light of that initiative, this paper compares the positions of federal and state judges with those of administrative adjudicators to assess whether the constraints on the latter should resemble the former, and whether application of the standards regarding extra-judicial speech for the latter should largely be a matter of self-restraint, as is the case with federal and state judges.

More particularly, the paper discusses seven respects in which administrative agencies and courts differ in ways that may well have relevance to the propriety of extra-judicial speech.  The paper examines the respective (1) disqualification standards and costs of recusal, (2) nature of the interests adjudicated, (3) nature and scope of review to which adjudicators’ determinations are subject, (4) relationship between adjudicators and agency officials, (5) obligations of institutional loyalty, (6) separation of powers concerns, and (7) degree of reliance upon others’ acceptance of the judgments rendered in the adjudication.  From this analysis, the paper draws two conclusions. 

First, the ethical norms of administrative adjudicator extrajudicial speech should not dramatically differ from those applicable to their brethren serving on courts. While some differences do exist between the agency and judicial contexts, they cut in different ways. Thus, on balance the differing contexts do not suggest the need for significantly different norms.

Second, while a regime that largely relies on judges selecting their own philosophies regarding extrajudicial speech within a broad range of choice is tolerable in federal and state judicial systems, the issues are sufficiently significant and have sufficiently broad implications for agencies that agencies should be able to take a more pro-active role.  Agencies should be able to rely less on individual adjudicators’ choices and set a framework that accords administrative adjudicators a more limited range of discretion than court systems currently appear to confer upon judges.

---

[1] Complaint for Declaratory and Injunctive Relief, Nat‘l Ass’n of Immigr. Judges v. McHenry, No. 20-cv-731 at ¶2, 19 (E.D. Va. July 1, 2020).  For the major filings in the case visit the Knight First Amendment Institute site here.