SCOTUS reverses Fourth Circuit in immigration-judge speech case

On 26 May 2026 the U.S. Supreme Court summarily reversed the Fourth Circuit per curiam in Margolin v. National Association of Immigration Judges, No. 25-767, holding that the Civil Service Reform Act channels federal-employee personnel claims through the Merit Systems Protection Board and that the court of appeals had erred by deciding the case on a theory the parties had not presented; the opinion states that “[f]ederal courts are not ‘roving commissions,’” and remands.¹ The Court did not reach the First Amendment merits of the Executive Office for Immigration Review’s pre-clearance requirement for immigration judges’ speech; Justice Thomas, joined by Justice Barrett, concurred separately on the merits, and the Court the same day denied the National Association of Immigration Judges’ cross-petition, No. 25-1009, which had asked whether the CSRA strips district-court jurisdiction over pre-enforcement challenges to prior restraints on employee speech.¹² The practical effect is that the pre-clearance policy remains in place and challenges to it proceed through the CSRA’s administrative channel rather than in district court. The National Association of Immigration Judges had argued that the EOIR policy requiring DOJ pre-clearance of speeches and writings by immigration judges — the expanded pre-clearance memorandum of 17 January 2020, building on the speaking-engagement policy of 1 September 2017 and revised in October 2021 — violates the First Amendment by restraining judges from sharing views on immigration law and policy in their personal capacity; the litigation began in the Eastern District of Virginia in July 2020 (No. 1:20-cv-00731), and the Fourth Circuit (Nos. 20-1868, 23-2235) vacated the district court’s dismissal on 3 June 2025 before the government’s petition for certiorari of 23 December 2025.³⁴ Immigration judges are administrative officers within the Executive Office for Immigration Review at the Department of Justice, defined at INA § 101(b)(4), 8 U.S.C. § 1101(b)(4); they are DOJ attorney employees rather than Article III judges, and their adverse actions are governed by 5 U.S.C. ch. 75 (§§ 7511-7514) with mixed-case appeals under § 7702.⁵⁶ NAIJ was certified by the Federal Labor Relations Authority as the exclusive representative of immigration judges in 1979; the Trump I Justice Department petitioned to decertify NAIJ in 2019, the FLRA decertified in 2020, and the Biden DOJ stipulated to vacate that decision in 2021, with NAIJ’s certification restored.⁷

1. The reversal rests on the CSRA’s exclusive-channelling structure, not on public-employee speech doctrine. The modern doctrine for public-employee speech “made pursuant to official duties” — Garcetti v. Ceballos, 547 U.S. 410, 421 (2006), which holds that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline” — remains the framework a merits court would apply, together with the Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983), public-concern threshold; the per curiam leaves those questions for the channelled administrative process, while the Thomas concurrence, joined by Barrett, would have reached and resolved the merits for the government.⁸⁹¹⁰

2. The disposition leaves intact DOJ’s supervisory authority over EOIR adjudicators under 8 C.F.R. § 1003.0 (EOIR Director authority) and § 1003.10 (Immigration Judges’ conduct and authority), and the pre-clearance requirement in the EOIR policy memoranda of 2017 and 2020.¹¹⁴ Enforcement against a non-complying immigration judge proceeds through the adverse-action procedures at 5 U.S.C. § 7513 (notice and right to reply for removal, suspension over 14 days, reduction in grade or pay, or furlough of 30 days or less), with appeal to the Merit Systems Protection Board — the channel the Court held exclusive.¹²

3. Immigration-judge associations retain First Amendment protections in their organisational capacity and in members’ personal-capacity speech outside official duties; the ruling is jurisdictional and does not sustain or invalidate the speech-permission requirement on the merits. NAIJ’s bargaining-unit status under 5 U.S.C. ch. 71 supports collective representation on terms and conditions of employment but does not displace the CSRA channelling the Court enforced.¹³