Professor of Law Emeritus William C. Banks discussed with Bloomberg Law the legal implications of the Department of Justice (DOJ) assigning military lawyers, including judge advocates general, as temporary immigration judges. An advisory opinion from the DOJ found that this would not violate the Posse Comitatus Act.
The opinion also says these detailed judges would be “supervised entirely” by civilians. This “waters down” the Posse Comitatus violation, but it doesn’t remedy it, said Banks.
“They’re still military lawyers and they’re still engaged in law enforcement, whether they have supervisors or not,” he said.