The immigration judges case against Chief Justice John Roberts raises a key question about federal employment law: can the National Association of Immigration Judges sue a government policy limiting the speech of immigration judges directly in federal district court, or does the Civil Service Reform Act of 1978 (CSRA) oblige the union to proceed under the law’s administrative review process?
The case made its way to the U.S. Supreme Court following a challenge by the federal government to a finding by the Fourth Circuit to remand the matter to the district court Legal News.
Chief Justice Roberts issued a temporary stay of the Fourth Circuit’s mandate in December 2025. Then, the Supreme Court vacated its temporary stay. On May 26, 2026, the Supreme Court overturned the Fourth Circuit’s decision on procedural grounds in an opinion per curiam.
Quite a bit, the Supreme Court never considered the question whether the government’s speech policy infringed the First or Fifth Amendment. What the ruling said was that courts are required to consider any claims the parties fail to raise in their motion papers. That nuance is crucial to understanding what the order did and did not decide.
What Is the Immigration Judges Case About?
The Supreme Court case is formally cited as Daren K.Director of the Executive Office for Immigration Review Margolin v. National Association of Immigration Judges… No. 25-767.National Association of Immigration Judges v. Owen, No. 23-2235 was the caption of the prior Fourth Circuit appeal.
This issue concerns a policy that was put into effect in October 2021 by the Executive Office for Immigration Review (EOIR). Under that policy, immigration judges needed approval from a supervisor to speak publicly about matters that are part of their official duties.
The policy focused on work-related public speaking, distinguishing between those speaking engagements on official time and certain personal-capacity events. The Fourth Circuit’s previous opinion discussed the policy’s treatment of professional events and immigration-related speaking events.
Per the Supreme Court, the ostensible purpose of the policy was to make sure that speech by employees that might give EOIR’s “imprimatur” to a message or message was in line with official positions of the agency.
The National Association of Immigration Judges filed a First and Fifth Amendment challenge to the program in federal district court. But those were claims not findings that the policy was unconstitutional.
There was also a distinct legal issue about the right forum for the challenge whether the CSRA gave review through its administrative procedures or precluded a first suit in federal district court.
Why Did Chief Justice Roberts Temporarily Stay the Fourth Circuit’s Mandate?
Following the Fourth Circuit’s decision on June 3 2025 the federal government filed for emergency relief from the Supreme Court.
On December 5 2025 Chief Justice John Roberts issued an order staying the Fourth Circuit’s mandate until a further order. A stay of a mandate leaves the operation of a mandate in abeyanceexcept that it does not make any determination of the constitutional issues.
The Supreme Court dismissed the government’s stay application on December 19, 2025, and set aside the order issued earlier by the Chief Justice. The Court said that the government had not shown, at that point, that there would be irreparable damage without a stay.
The denial was without prejudice to a renewed application if, before the district court commencing discovery, the government’s then-pending petition for a writ of certiorari was disposed of.
Roberts’s December order then was only interim. It was not a rule of precedent declaring that, even assuming immigration judges were entitled to opine on their cases, they would be barred from discussing their work in public.
What Did the Fourth Circuit Decide in June 2025?
The US District Court for the Eastern District of Virginia was the site of the lawsuit. In 2023, the district court found that the claim of the association was not within its jurisdiction and that the CSRA was the appropriate vehicle to review.
The district court decision can be found below: National Association of Immigration Judges v. Neal, 693 F. Supp. 3d 549 (E.D. Va. 2023).
The association filed for appeal. On June 3 2025 the Fourth Circuit reversed the judgment and sent the case back to the trial court. Refer to National Association of Immigration Judges v. Owen, 139 F.4th 293 (4th Cir. 2025).
The Fourth Circuit was persuaded that the association’s claims fall within the scope of the CSRA scheme. However, it was uncertain that the system was functioning as Congress had intended. The panel looked at the Merit Systems Protection Board’s (MSPB) quorum difficulties as well as the term of the Special Counsel and MSPB members.
The Fourth Circuit sent the case back for another round of proceedings, including factfinding related to how the administrative review system functioned. That was the ruling the feds sought to overturn in the Supreme Court.
The Fourth Circuit did not rule that the CSRA no longer applies to federal employees as a rule. Its ruling went to whether the facts raised by the panel case deserved further investigation in this specific lawsuit.
On May 26, 2026, the Supreme Court made a decision.
The Supreme Court renders a decision in Margolin v. on May 26, 2026. National Association of Immigration Judges, No. 25-767.
The Court remanded the matter for additional procedures in accordance with its opinion and overturned the Fourth Circuit’s ruling. The government’s request for a writ of certiorari was granted by the court.
The majority said it ought to adhere to the party presentation concept. In that respect, courts normally depend on the parties to pinpoint and argue the issue for ruling. In general, courts shall not resolve a matter on a by a lot diverged grounds, that the parties did not make argument, without giving them the chance.
The Court determined that the parties’ litigation centered on whether the association’s specific claims fell within the scope of the CSRA. But the Fourth Circuit posed a more fundamental question of whether the existing situation had rendered the administrative review scheme of the CSRA inoperative.
The Supreme Court ruled that the Fourth Circuit had resolved that question, which was broader in scope, and had done so to precluded either party from raising it. The Court reversed.
The other was a matter of procedure: it applied the party-presentation rule. It never went to the question of whether the EOIR speech policy was unconstitutional. It never reached the issue of whether the EOIR speech policy was unconstitutional.
What Is the Civil Service Reform Act’s Role?
The Civil Service Reform Act defines certain procedures for employment-related disputes about federal employees. The law may require an administrative process before an affected employee can go to court, based on the status of the employee, the nature of the challenged action, and the law.
Statutory protections offer additional avenues of redress with the Merit Systems Protection Board and the Office of Special Counsel. This does not imply that all workplace conflicts in the federal system are subject to the same administrative process.
Several provisions discussed in connection with the CSRA include:
- 5 U.S.C. 1214: Brings for investigations of prohibited personnel practices and related corrective-action procedures with the Office of Special Counsel.
- 5 U.S.C. 7512: Defines certain personnel actions that are subject to the pertinent adverse-action processes, like removal, suspension of more than 14 days, reduction in grade or pay, and some furloughs. The law has some exceptions.
- 5 U.S.C. 7703: Explains the courts’ jurisdiction to review of decisions made by the Merit Systems Protection Board and the rules for filing appeals.
These rules should be considered with the rest of the CSRA and applicable case law. These rules alone do not provide that all workplace speech disagreements must use this process.
In its opinion the Court relies on prior cases on the scope of review under the CSRA, including Elgin v. Department of Treasury, 567 U.S. 1 (2012); and United States v. Fausto, 484 U.S. 439 (1988).
In a concurrence with Justice Amy Coney Barrett, Justice Clarence Thomas also concurred in the judgment. He agreed with the majority’s party-presentation analysis, but also contended that the CSRA independently supported dismissing the district court action for lack of jurisdiction.
That additional reasoning is the concurrence’s view, not the holding of the majority. The Court, and I, do not suggest that every piece of reasoning in the concurrence is dispositive.
What Happened After the Supreme Court Decision?
Sent back to Fourth Circuit by the Supreme Court.
On August 19 2026 the Fourth Circuit published an unpublished per curiam opinion. It concurred in the district court’s finding that it lacked subject-matter jurisdiction and changed the dismissal to be without prejudice.
A dismissal without prejudice is not a ruling on the merits. The Fourth Circuit acknowledged that if a court lacks subject-matter jurisdiction to hear a claim, then it can not rule on that claim on the merits.
The Fourth Circuit also added that its unpublished opinions do not constitute binding precedent in the circuit. As a result, the August decision ought not to be characterized as a novel, binding circuit-wide constitutional rule.
On this occasion, the opinion contained an extra footnote with a potentially pertinent question left unresolved. Mentioning the Supreme Court’s decision in Trump v. Slaughter, 609 U.S. 422 (2026), the Fourth Circuit noted that the CSRA’s for-cause removal protections for MSPB members and the Special Counsel might arguably constitute a comparable constitutional matter.
In Trump v. Slaughter, the Court found that the for-cause removal restrictions of the Federal Trade Commission Act violated the constitution’s separation-of-powers doctrine. The Fourth Circuit noted that this issue may also be raised on the for-cause protections for MSPB members and the Special Counsel.
But, the Fourth Circuit added, the parties had not briefed that question, nor had they briefed whether the protections themselves were severable. The footnote left those issues unresolved. It of course should not be treated as a holding that the removal protections in the CSRA are unconstitutional.
Was the Supreme Court Ruling That There Are No First Amendment Rights for Immigration Judges?
No.
But the Supreme Court didn’t find that immigration judges lack First Amendment rights. The association asserted that the speech restrictions were unconstitutional, but the majority did not rule on whether those claims were ultimately well-founded.
A court may dismiss a case due to lack of jurisdiction without ruling on whether the challenged government policy was legal. A subsequent Fourth Circuit dismissal without prejudice in the same way did not address constitutional issues.
Still, this does not necessarily mean another course of legal action is open. If a further legal challenge will go ahead depends on the legislation, the procedures and the facts.
So, it would be erroneous to state that the Supreme Court found the EOIR speech policy to be valid or that it abolished First Amendment rights of immigration judges.
Does the Ruling Change Deportation or Asylum Procedures?
The case would not create any rule of deportation or alter eligibility criteria for a statutory asylum claim.
This litigation challenges the speech restrictions for federal employees, the administrative and judicial procedures for challenging a government workplace policy, and the impact of both of those policies on the consideration of individual requests for immigration benefits. It does not establish new eligibility criteria for immigration benefits, modify removal proceedings, or establish a new deadline for filing for asylum.
Readers should also note this is not the same legal battle involving immigration law, the rules and enforcement that the Trump administration has issued.
That additional reasoning is the concurrence’s view, not the holding of the majority. The Court, and I, do not suggest that every piece of reasoning in the concurrence is dispositive.
What Happened After the Supreme Court Decision?
Sent back to Fourth Circuit by the Supreme Court.
On August 19 2026 the Fourth Circuit published an unpublished per curiam opinion. It concurred in the district court’s finding that it lacked subject-matter jurisdiction and changed the dismissal to be without prejudice.
A dismissal without prejudice is not a ruling on the merits. The Fourth Circuit acknowledged that if a court lacks subject-matter jurisdiction to hear a claim, then it can not rule on that claim on the merits.
The Fourth Circuit also added that its unpublished opinions do not constitute binding precedent in the circuit. As a result, the August decision ought not to be characterized as a novel, binding circuit-wide constitutional rule.
On this occasion, the opinion contained an extra footnote with a potentially pertinent question left unresolved. Mentioning the Supreme Court’s decision in Trump v. Slaughter, 609 U.S. 422 (2026), the Fourth Circuit noted that the CSRA’s for-cause removal protections for MSPB members and the Special Counsel might arguably constitute a comparable constitutional matter.
In Trump v. Slaughter, the Court found that the for-cause removal restrictions of the Federal Trade Commission Act violated the constitution’s separation-of-powers doctrine. The Fourth Circuit noted that this issue may also be raised on the for-cause protections for MSPB members and the Special Counsel.
But, the Fourth Circuit added, the parties had not briefed that question, nor had they briefed whether the protections themselves were severable. The footnote left those issues unresolved. It of course should not be treated as a holding that the removal protections in the CSRA are unconstitutional.
Was the Supreme Court Ruling That There Are No First Amendment Rights for Immigration Judges?
No.
But the Supreme Court didn’t find that immigration judges lack First Amendment rights. The association asserted that the speech restrictions were unconstitutional, but the majority did not rule on whether those claims were ultimately well-founded.
A court may dismiss a case due to lack of jurisdiction without ruling on whether the challenged government policy was legal. A subsequent Fourth Circuit dismissal without prejudice in the same way did not address constitutional issues.
Still, this does not necessarily mean another course of legal action is open. If a further legal challenge will go ahead depends on the legislation, the procedures and the facts.
So, it would be erroneous to state that the Supreme Court found the EOIR speech policy to be valid or that it abolished First Amendment rights of immigration judges.
Does the Ruling Change Deportation or Asylum Procedures?
The case would not create any rule of deportation or alter eligibility criteria for a statutory asylum claim.
This litigation challenges the speech restrictions for federal employees, the administrative and judicial procedures for challenging a government workplace policy, and the impact of both of those policies on the consideration of individual requests for immigration benefits. It does not establish new eligibility criteria for immigration benefits, modify removal proceedings, or establish a new deadline for filing for asylum.
Readers should also note this is not the same legal battle involving immigration law, the rules and enforcement that the Trump administration has issued.
What Happened After the Supreme Court Decision?
Sent back to Fourth Circuit by the Supreme Court.
On August 19 2026 the Fourth Circuit published an unpublished per curiam opinion. It concurred in the district court’s finding that it lacked subject-matter jurisdiction and changed the dismissal to be without prejudice.
A dismissal without prejudice is not a ruling on the merits. The Fourth Circuit acknowledged that if a court lacks subject-matter jurisdiction to hear a claim, then it can not rule on that claim on the merits.
The Fourth Circuit also added that its unpublished opinions do not constitute binding precedent in the circuit. As a result, the August decision ought not to be characterized as a novel, binding circuit-wide constitutional rule.
On this occasion, the opinion contained an extra footnote with a potentially pertinent question left unresolved. Mentioning the Supreme Court’s decision in Trump v. Slaughter, 609 U.S. 422 (2026), the Fourth Circuit noted that the CSRA’s for-cause removal protections for MSPB members and the Special Counsel might arguably constitute a comparable constitutional matter.
In Trump v. Slaughter, the Court found that the for-cause removal restrictions of the Federal Trade Commission Act violated the constitution’s separation-of-powers doctrine. The Fourth Circuit noted that this issue may also be raised on the for-cause protections for MSPB members and the Special Counsel.
But, the Fourth Circuit added, the parties had not briefed that question, nor had they briefed whether the protections themselves were severable. The footnote left those issues unresolved. It of course should not be treated as a holding that the removal protections in the CSRA are unconstitutional.
Was the Supreme Court Ruling That There Are No First Amendment Rights for Immigration Judges?
No.
But the Supreme Court didn’t find that immigration judges lack First Amendment rights. The association asserted that the speech restrictions were unconstitutional, but the majority did not rule on whether those claims were ultimately well-founded.
A court may dismiss a case due to lack of jurisdiction without ruling on whether the challenged government policy was legal. A subsequent Fourth Circuit dismissal without prejudice in the same way did not address constitutional issues.
Still, this does not necessarily mean another course of legal action is open. If a further legal challenge will go ahead depends on the legislation, the procedures and the facts.
So, it would be erroneous to state that the Supreme Court found the EOIR speech policy to be valid or that it abolished First Amendment rights of immigration judges.
Does the Ruling Change Deportation or Asylum Procedures?
The case would not create any rule of deportation or alter eligibility criteria for a statutory asylum claim.
This litigation challenges the speech restrictions for federal employees, the administrative and judicial procedures for challenging a government workplace policy, and the impact of both of those policies on the consideration of individual requests for immigration benefits. It does not establish new eligibility criteria for immigration benefits, modify removal proceedings, or establish a new deadline for filing for asylum.
Readers should also note this is not the same legal battle involving immigration law, the rules and enforcement that the Trump administration has issued.
What Does the Ruling Mean for Immigration Judges?
This case shows the procedural snares faced by federal employees who take issue with government workplace policy. It involves the intersection of the speech of a professional, agency regulation, constitutional allegations, and federal employment law.
It also shows why it’s important to pick the right court. The cases do not give a full ruling for every kind of speech an immigration judge might engage in. The policy’s definitions, what kind of speech engagement, and what legal process may be involved could all matter.
The footnote in the later Fourth Circuit opinion also raises an unresolved issue about the severability and constitutionality of some CSRA removal protections. We should not treat that issue as resolved here.
The policy challenged in the litigation was EOIR’s Speaking Engagements policy issued in October 2021. In March 2024, EOIR issued a revised Speaking Engagements policy, which it announced was in effect as of March 28, 2024. In a letter dated April 29 2024 Sen. Charles Grassley reported that the new policy adds terms to safeguard disclosures made by employees who are legally protected under federal whistleblower laws, and reaffirmed supervisory approval procedures for official-capacity speaking events.
This congressional letter describes a policy copy that was given to Senate committee staff. Its existence should not be taken as evidence that the agency applies the policy as currently written. We have not, on our own, found evidence that EOIR has issued a subsequent version of the policy.
What Was Chief Justice Roberts’s Role?
The decision was made by Chief Justice Roberts using the Supreme Court’s emergency process. He put on hold the Fourth Circuit’s mandate for a period in December 2025. The Supreme Court set aside that order and finally published its ruling on the government’s certiorari application in May 2026.
The order in May was per curiam from the Supreme Court. It was not an individual opinion by Roberts as a separate note that immigration judges could not make public statements.
Procedural history: a temporary stay followed by a vacation thereof, a Supreme Court reversal, which relied on party-presentation rules, and ongoing proceedings before the Fourth Circuit.
When to Contact a Lawyer
Contact an attorney if you are involved in a federal employment dispute or have constitutional questions about procedures in a government workplace. The right legal process will depend on your facts and law.
Conclusion
JUDGES IN the Roberts immigration case are relying on, and disputing, federal labor law, the scope of judicial authority and the exhaustion of appeals.
In December 2025, Chief Justice Roberts issued a temporary stay of the Fourth Circuit’s mandate, but the Supreme Court vacated that stay later that month.
On May 26 2026 the Supreme Court overturned the Fourth Circuit’s ruling on the grounds that the appeals court decided a broader question than the parties had put before it.
The Fourth Circuit, on remand, agreed with the district court that it lacked subject-matter jurisdiction and changed the dismissal to be without prejudice. Its unpublished opinion did not resolve whether the EOIR speech policy was constitutional.
The bottom line is the Supreme Court never ruled on whether the policy violated the First or Fifth Amendment. The case was a procedural ruling that should be viewed as a significant procedural ruling rather than a final Supreme Court decision that immigrant judges were stripped of their constitutional rights to free speech.
Additional Resources
- U.S. Supreme Court, Margolin v. NAIJ (May 26, 2026): The primary source explaining the Supreme Court’s decision and its procedural reasoning.
- U.S. Supreme Court, Emergency Docket No. 25A662: Verifies Chief Justice Roberts’s temporary stay and the Court’s subsequent decision to vacate it.