Many cases that arise under the First Amendment are relatively straightforward, while others are as much concerned with due process as with the substance of the First Amendment issues. Such is the situation with regard to a case brought by the National Association of Immigration Judges against Sirce E. Owen, the acting director of the Executive Office for Immigration Review.
Judges say policy on giving speeches restrict speech
The immigration judges objected to a new speech policy issued by the Executive Office for Immigration Review on Oct. 12, 2021. The policy required the judges to get prior approval for any speeches they had been invited to give because of their official position. The approval process involves: a request to a supervisor; review by the office’s Speaking Engagement Team composed of members of the Office of Policy, the Office of the General Counsel, and the Office of the Director; and of a review by the office’s Ethics Program.
Immigration judges say policy restricts their speech
The immigration judges claimed that the policy “restricts their ability to speak about their professional experiences, prevents them from expressing their personal views at legal conferences, and deters them from publishing scholarship on immigration law.” They cited not only cases where permission to speak, teach or publish about immigration issues had been denied but also cases where “decisions came too late” to accept such invitations.
Focusing on First Amendment issues, the judges claimed that the speech policy was a prior restraint on speech that is not tailored to a legitimate government interest and void for vagueness under both the First and Fifth Amendments.”
District Court says it does not have jurisdiction
In NAIJ v. Neal, 693 F. Supp. 3d 549 (E.D. Va. 2023), the U.S. district court that initially heard the case decided that it did not have jurisdiction. It reasoned that Congress had stripped its jurisdiction by the creation of an alternate comprehensive system of administrative review through the Civil Service Reform Act of 1978. That act had created the Office of Personnel Management to administer civil services rules and regulations, the Merit System Protection Board, which served as an adjudicatory arm over the personnel system, and an office of “Special Counsel.”
4th Circuit questions intent to remove judicial review
On June 3, 2025, however, the 4th Circuit Court of Appeals sent the decision back to the district court to decide whether Congress had indeed intended to strip the courts of jurisdiction and whether the new arrangement actually protected the judges’ rights.
In its decision, the 4th Circuit observed that the Merit System Protection Board is “a quasi-judicial body” designed to protect employees, and that Congress had created it and the Special Counsel “to be independent of any control of direction by the president.” The Whistleblower Protection Act of 1989 had further strengthened the role of the Special Counsel.
Recognizing that, “when functioning as Congress intended,” the Civil Service Reform Act was designed to strip such jurisdiction, the Circuit Court questioned whether the law was actually functioning in its intended fashion. The Circuit Court took “judicial notice” of the fact that as the case was pending, the president had removed the Special Counsel and two members of the Merit System Protection Board, so that the latter then lacked a quorum.
The 4th Circuit further observed that the system that Congress had created had intended to provide vigorous protection for the merit system, and that, absent such protection, it was unlikely that Congress would have granted the Office of Personnel Management the kind of power it was exercising. It recognized that Congress had granted the protection board “(s)ubstantial independent authority to allow it to act outside of the influence of the President,” that its members were appointed with the advice and consent of the US Senate to seven-year terms, and that it had given similar independent authority to the Special Counsel.
The circuit court acknowledged that in separate cases that had questioned the president’s power to remove the Special Counsel or members of the protection board, the government had argued that removal protections violated the separation of powers. It also recognized that the Supreme Court had in Trump v. Wilcox, 605 U.S. ____ (2025) stayed the reinstatement of such board members. It further acknowledged that Congress may have intended to strip district courts of jurisdiction “only because it understood that the President could not exercise unfettered control over the Special Counsel and (protection board),” and that “if that understanding proves to be incorrect, then a revaluation of Congress’s intent . . . may be required.”
Supreme Court denies stay; free speech case to proceed
On Dec. 19, 2025, the U.S. Supreme Court issued an order (25A662) in the case of Margolin, Daren K. v. Nat. Assn. of Immigration Judges, denying a stay of the 4th Circuit’s decision on the basis that “the Government has not demonstrated that it will suffer irreparable harm without a stay.”
Collectively, these decisions reflect the wider controversy over what powers the president has over what were once considered to be independent regulatory agencies. The decisions also suggest how a decision upholding presidential power to fire members of such agencies might affect First Amendment rights and how Congress might, in turn, seek other avenues to protect these rights should the Supreme Court rule in favor of broadened presidential rights to fire personnel.
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.