Rep. Mike Gallagher Files Bill Giving Immigration Judges Contempt Authority. It’s About Time.

COMMENTARY Immigration

Rep. Mike Gallagher Files Bill Giving Immigration Judges Contempt Authority. It’s About Time.

Feb 3rd, 2020 2 min read

Commentary By

Charles "Cully" Stimson @cullystimson

Senior Legal Fellow & Manager, National Security Law Program

GianCarlo Canaparo

Legal Fellow, Meese Center

Antonio Apolito

Spring 2020 member of the Young Leaders Program at The Heritage Foundation

Since the beginning of the year, 66,000 cases have been added to the backlog, which now sits at nearly 1.1 million cases.   Tetra Images / Getty Images

Key Takeaways

This would give immigration judges a power that every other state and federal trial court judge in the country has.

It also would address a big reason the immigration courts are crushed under enormous and seemingly irreducible caseloads. 

Hopefully our representatives can join together to finish what they started in 1996 and make our immigration courts a little better.

Ronald Reagan once quipped, “They say the world has become too complex for simple answers. They are wrong.” That’s a lesson Rep. Mike Gallagher, R-Wis., proved on Jan. 29 with his simple, but much needed, bill to improve our overburdened immigration courts.

His bill, barely more than a page long, would fix a long-standing weakness of the immigration courts by giving immigration judges the power to hold lawyers and litigants in contempt if they disobey court orders or ignore deadlines.

This would give immigration judges a power that every other state and federal trial court judge in the country has. It also would address a big reason the immigration courts are crushed under enormous and seemingly irreducible caseloads

Since the beginning of the year, 66,000 cases have been added to the backlog, which now sits at nearly 1.1 million cases.  

As we’ve written before (hereherehere, and here), our immigration courts will grind to a halt under this deluge unless Congress or the Department of Justice takes steps to improve them. Specifically, immigration courts should have the same commonsense tools as every other court in the country to effectively manage their cases.

One of those tools is the power to enforce orders and deadlines. If a judge can’t enforce his orders or deadlines, why would anyone obey them?

Immigration judges have learned the hard way that they won’t.  

Meritless cases drag on, robbing precious time from meritorious cases, because lawyers and litigants who know they’re going to lose stretch the proceedings along by exploiting the immigration judge’s powerlessness.

Simple cases can drag on for years.

Congress recognized this problem in 1996 and passed a bill, signed by President Bill Clinton, that empowered the Justice Department ­to issue regulations giving immigration judges contempt authority. 

But the department never did because, as various commentators, including immigration judges, have surmised, the Department of Justice wants to protect its trial lawyers from being punished for their malfeasance in immigration courts.

In our first paper on this point, we anticipated that the Justice Department might not give immigration judges the contempt authority Congress authorized, so we offered another solution. Congress should take away the department’s discretion and give immigration judges the same contempt authority that federal district court judges have.

Gallagher’s legislation would do just that. House Bill 5708 would amend the 1996 law to eliminate the Justice Department’s authority to promulgate contempt-authority regulations, and to simply give immigration judges the same contempt authority that federal district court judges have.

Sometimes the best solutions are the simplest ones. In normal times, the bill would garner bipartisan support. The 1996 legislation that empowered the Justice Department to give immigration courts contempt authority passed by wide bipartisan margins. And many scholars from across the political spectrum have called for immigration courts to have the contempt power. 

These may not be normal times in Congress, but hopefully our representatives can join together to finish what they started in 1996 and make our immigration courts a little better. They desperately need it.

This piece originally appeared in The Daily Signal