Posse Con Militatus: No Military Judges; Just, None At All

They’re drawin’ boxes on the ground
Just to make us look on down.
All we gotta do is look around
And take it one step over the line.

Mother Jones is reporting that the regime has started making plans to assign military lawyers as immigration court judges.

And that’s more than just one step over the line.

There are two important red lines that this crosses:

immigration courts should be real courts, with real judges
the military should never be involved in civilian courts

These are both really important, fundamental aspects of the principles the United States was founded on and which supposedly have formed its basis of government for 249 years.

The U.S. crossed that first line a long time ago.

Arguably in 1952 when the post of “special inquiry officer” was created, which latter came to just be called “immigration judge”.

These are executive branch officials who decide both the facts and the law of immigration cases, though they’ve tried to hide this by calling them “judges”. This leaves the courts entirely out of decisions that involve immigration status, which the U.S. has decided counts as “due process“; or at least, all the process anyone who can’t prove they’re a citizen is due.

This is clearly wrong, and inconsistent with the fundamental separation of powers in the Constitution, but it’s been going on for so long that most people just don’t notice it anymore.

It crossed that second line more recently.

At the very least, the U.S. started using military officers as judges in civilian cases under then-president G. W. Bush with his innovation of handing anything with a “terrorism” label slapped on it over to the military.

This was convenient for him, since the the U.S. has long allowed the military to be exempt to all those pesky public-proceedings and civil rights protections that the actual courts have to follow.

This was extremely wrong, and a flagrant violation of the fundamental separation of powers in the Constitution, but it proceeded largely without media attention and as with immigration the courts have utterly failed to address it.

So, frankly, it’s not likely that the modern courts will do much about this.

It’s not like this is a significant step any more; then-presidents Bush, Obama, Trump, Biden and now Trump again all allowed the military and other executive branch officials to act as judges in immigration or terrorism-labelled cases.

Even using the coup-friendly Supreme Court’s new “history and tradition” standard, this wouldn’t be allowed since it goes against a very fundamental historical tradition of U.S. governance. Though that’s easy for the Court to get around, since they left themselves free to choose whatever histories and traditions to consider in each case.

So, once again, there’s no reason to think the courts will do anything about this.

But keep it in mind; just because this is a slope we’ve been sliding down for a while doesn’t mean each new step isn’t important and dangerous.

And when it’s time to write the constitutions for what comes next after the United States, remember this: in a free State, the executive branch must never be allowed to create its own “courts” and the military cannot ever be allowed to make decisions affecting civilians.

Because once the population is acclimated to that, the government can do pretty much anything it wants.