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For judges, Biden’s actions are a split decision

President Joe  Biden speaks at a White House news conference on Jan 25 at the White House.
President Joe Biden speaks at a White House news conference on Jan 25 at the White House. (Jabin Botsford/The Washington Post)
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While the Biden administration is moving away from a Trump administration effort to bust one administrative judges’ union, the White House has reinforced another Trump-era policy that could limit the independence of a different group of jurists.

The Justice Department’s Executive Office for Immigration Review has taken a step to reverse a Trump administration attempt to ruin a federal employees union, the National Association of Immigration Judges (NAIJ). At the same time, an executive order issued by President Biden would bolster former president Donald Trump’s plan to reclassify administrative law judges in a way that could undermine the integrity of that workforce.

Unlike judges in criminal and civil courts, immigration judges and administrative law judges are executive branch employees who resolve certain disputes involving federal agencies.

First, the immigration judges’ story.

The day before November’s presidential election, Trump appointees to the Republican-dominated Federal Labor Relations Authority, which rules on cases between federal agencies and unions, voted to deny union eligibility for immigration judges — a rare move that would effectively bust the labor organization by leaving it with no one to represent. Two Republican members on the three-member panel agreed with Trump administration arguments that immigration judges influence policy and ruled that they are “are management officials . . . and, therefore, are excluded from the bargaining unit.”

The union sought to have the decision reconsidered, but the Trump administration officially opposed that.

In late June, Biden’s Justice Department withdrew that opposition, following appeals by House and Senate members in support of the union.

Urging Attorney General Merrick Garland “to reverse the prior Administration’s attacks” on the immigration judges union, a May 24 letter from Democrats on the Senate Judiciary Committee, led by Chairman Richard J. Durbin (Ill.), said “the Trump administration’s petition to decertify NAIJ and the FLRA’s decision appear to have been part of a deliberate attempt to muzzle immigration judges and stifle opposition to the Administration’s anti-immigrant agenda.”

Yet, while the Justice Department no longer opposes the union’s effort to have the authority’s decision reconsidered, NAIJ said the Biden administration has not withdrawn its petition to decertify the union, as the House letter recommended.

“Elections have consequences,” said a June 3 letter to Garland from 36 House Labor Caucus members. “Now it is up to you to rescind former Attorney General Barr’s anti-union petition with the FLRA. Should the FLRA’s decision be allowed to stand, the ramifications and the legal basis for the decision will have an immediate negative effect on NAIJ and all its bargaining unit members. But it will have an equally, if not far more, profound impact on federal employees’ right to form and join a union. Any professional employee will be vulnerable to being characterized as a manager because the FLRA decision is so broad and provides no rationale for the departure from its prior precedent.”

The Justice Department refused to comment on its continuing petition to decertify the immigration judges union.

“The DOJ has not shared their legal strategy with us so we do not know why they have chosen not to withdraw the petition,” Dana Leigh Marks, NAIJ president emerita and executive vice president, said by email. “From our perspective, reconsideration of the decision is the most straightforward solution as that would revoke the prior decision and prevent it from becoming precedential for NAIJ or other unions.”

Administrative law judges are perplexed by another Biden administration action that amplified Trump’s plan to reclassify their positions so new judges can be more easily hired and fired during an extended probationary period. The White House and the Office of Personnel Management were asked about, but did not explain, Biden’s May 14 executive order that buttresses Trump’s edict to move administrative law judges from the competitive civil service to an “excepted” employment category, known as Schedule E, with less-rigorous employment requirements.

This raises fears of the politicization of agency administrative hearings.

“In a nutshell, IFPTE believes that the purpose of moving the ALJs from competitive to excepted [service] by the Trump administration was to avoid merit system hiring requirements so they can hire based on politics, while getting that extra year of probation to be able to fire ALJs that may not be ruling the way they would like,” said Matt Biggs, secretary-treasurer of the International Federation of Professional and Technical Engineers. The union includes NAIJ and the Association of Administrative Law Judges (AALJ).

Biden’s order boosting Trump’s directive shocked union leaders because the current president, unlike the last, is a strong union supporter.

“We are a labor union,” said AALJ President Melissa McIntosh. “President Biden has been forthright in supporting collective bargaining rights. We as a union have been very vocal that the best process is to hire administrative law judges through competitive service. So, we were surprised that he doubled down on President Trump’s executive order.”

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