S-5094-119
Read twice and referred to the Committee on the Judiciary.
Sponsored by Kirsten Gillibrand (D-NY)
What it does
This bill would establish a new, independent system of immigration courts under Article I of the Constitution, removing immigration judges from the executive branch's Department of Justice entirely. It would create a three-division court system — a trial division, an appellate division (replacing the Board of Immigration Appeals), and an administrative division — with judges appointed for 15-year terms. Appeals judges would be appointed by the President with Senate confirmation; trial judges would be appointed by the appellate division itself. The new courts would have jurisdiction over removal proceedings, asylum claims, bond hearings, and related matters currently handled by the Executive Office for Immigration Review (EOIR).
Who benefits
Immigrants and non-citizens in removal proceedings, who would have their cases heard by judges insulated from executive branch direction and political pressure. Immigration attorneys and legal advocates who argue the current system lacks independence. Asylum seekers, who would benefit from a presumption against video teleconferencing in relief hearings. Respondents in bond and detention hearings, who would gain access to a more structurally independent tribunal. Legal services nonprofits, which would be formally integrated into a legal orientation program. Taxpayers and the public broadly, to the extent that a more independent judiciary produces more consistent and legally sound decisions that reduce costly appeals.
Who is hurt
The executive branch — specifically the President and the Attorney General — would lose direct supervisory authority over immigration judges, including the current ability to set case completion quotas, issue precedent decisions, and reassign judges. DHS and DOJ officials who currently use immigration court management as a policy lever would lose that tool. Respondents seeking expedited resolution may face transition delays as the new system stands up. Taxpayers would bear the cost of building a new independent court infrastructure, including salaries, facilities, and administrative overhead. States and localities that rely on swift federal removal proceedings may see procedural changes affect case timelines.
Supporters argue
Supporters argue that the current immigration court system is structurally compromised because immigration judges are employees of the Attorney General, who is a party to the proceedings — a conflict of interest with no parallel in any other U.S. court system. They point to documented instances of administrations from both parties issuing quotas, reassigning judges for political reasons, and issuing binding precedent decisions through the Attorney General's self-referral power, all of which undermine the appearance and reality of impartial adjudication. They contend that Article I status, 15-year terms, and removal-only-for-cause protections would produce more consistent, legally defensible decisions and reduce the appellate backlog that currently burdens the federal circuit courts.
Opponents argue
Opponents argue that immigration enforcement is a core executive function under Article II, and that removing adjudicatory control from the executive branch severs the constitutional link between enforcement policy and the adjudication of that policy. They contend that the President's Take Care Clause obligation to faithfully execute immigration law requires meaningful supervisory authority over the officials who apply it, and that an independent Article I court could frustrate democratically accountable immigration policy. They further argue that creating an entirely new judicial infrastructure — with Senate-confirmed appellate judges, new facilities, and a separate administrative apparatus — would be enormously costly and could extend the existing backlog of over 3 million pending cases during a prolonged transition period.
Constitutional context
The Naturalization Clause (Art. I, §8, cl. 4) grants Congress broad authority to establish rules for immigration, supporting the power to create Article I courts. However, the Take Care Clause (Art. II, §3) and the Executive Power Clause (Art. II, §1) raise questions about whether removing adjudicatory authority from the executive branch impermissibly limits presidential control over immigration enforcement. Post-Loper Bright (2024), courts will independently assess whether Congress has clearly authorized this structural shift, without deferring to agency interpretations of the relevant statutes.
Checks and balances
The executive branch loses direct supervisory authority over immigration judges; checks on the new court include Senate confirmation of appellate judges, congressional oversight through mandatory reporting requirements, circuit court and Supreme Court appellate review of decisions, and the Judicial Conference's role in reviewing judicial conduct complaints.
Historical precedent
Congress has previously created Article I courts for specialized adjudication — including the U.S. Tax Court and the Court of Appeals for Veterans Claims — but no prior legislation has restructured the immigration court system as an independent Article I tribunal separate from the executive branch.