THE BLOG
11/20/2014 05:58 pm ET Updated Jan 20, 2015

Obama Does Congress' Job on Immigration, Court Reform Next?

President Obama on Thursday made it clear that, if a gridlocked Congress won't do its job on immigration reform, he will do that job himself. Now we should hope that he can also turn attention to an immigration challenge that falls under his own branch of government: immigration courts.

The nation got a crash course in immigration court dysfunction over the summer as those unaccompanied minor children, the "border kids" mostly from Central America, piled into detention centers. After it was disclosed that hundreds of thousands of immigration cases were backed up in the overwhelmed courts, which are run by the Justice Department, the administration reacted by moving the high-profile cases to the front of the line and tossing a few million dollars at the problem.

Let me suggest that our immigration court system is every bit as important as giving a respite to the millions of immigrants benefiting from presidential action. Without the backstop of a functional justice system, any amount of increased border security becomes a waste of limited resources, and any path to legality must somehow bypass the hundreds of thousands of pending immigration deportation cases.

We should realize that immigration courts are not only in dire straits, they are not even really "courts." Immigration officials do not possess real judiciary authority. Instead, they are hired by the Justice Department and cannot hold government lawyers in contempt of court for their actions. The are not "referees" so much as "teammates."

The union representing the immigration court judges is even calling for an independent system. Judge Dana Leigh Marks, president of the National Association of Immigration Judges, told the Associated Press that ".. immigration judges act as arbiters in deportation cases being argued by Homeland Security Department lawyers but judges also are treated as attorneys for the government."

In a New York Times opinion piece, the judges stated:

Structural reform is imperative to ensure that the immigration courts receive the resources they desperately need to devote the time and study which asylum cases merit. For years, funding for the courts has not kept pace with enhanced immigration enforcement.

Compounding that, as rhe Washington Post reported, federal investigation "... found rampant nepotism in recent years within the agency that oversees U.S. immigration courts, including three top officials who used their positions to help relatives land paid internships."

Really? Surely we can do better than this, and when the president rightly points out that Congress is not doing its job, he should at least acknowledge that his Justice Department could do its job a bit better.

In the meantime, it remains conventional wisdom that President Obama's action is very likely only a temporary "fix," because what can be done by executive order can be undone by executive order. Perhaps that's correct, but it is not beyond reason to think that, in two years, his action might lead to a "new normal" that includes the changes.

Eventually, of course, the answers will come from comprehensive immigration reform, which so far has focused on potential paths to legal status for undocumented residents and border security.

The irony here remains that President Obama is staking his legacy on the idea that he has to make improvements to immigration policy because Congress will not. We can hear his message that millions of families will benefit from his actions, including families that would have been broken up without these measures.

Now, when it comes to his own Justice Department's handling of immigration courts, we await that same level of leadership.