Florida plan to deputize National Guard officers as immigration judges at Alligator Alcatraz would likely violate constitutional rights

Seeking to expand Florida’s role in federal immigration enforcement, Florida Gov. Ron DeSantis in May 2025 submitted the state’s Immigration Enforcement Operations Plan to the Trump administration.

The plan, endorsed by President Donald Trump, says all of Florida’s roughly 47,000 law enforcement officers have received, or soon will receive, training to act as immigration officers. It’s part of an effort to, as the plan notes, “maintain state-led border security operations in the absence of federal support.”

The DeSantis plan includes a proposal to deputize Florida’s nine National Guard Judge Advocate General’s Corps officers to serve as immigration judges. JAG officers are attorneys who serve as legal advisers, prosecutors, defense counsel and military judges in a wide range of matters specific to the armed forces. That includes courts-martial and civil matters involving the military.

DeSantis has said the move is necessary to create a fast-track deportation system at Florida’s new immigration detention facility in the Everglades, Alligator Alcatraz.

He has dismissed due process concerns – such as a lack of training and independence – from legal experts, pointing to the backlog in immigration courts. Immigration judges in Florida’s immigration courts have one of the largest backlogs in the country, with over half a million cases.

Congress establishes immigration policy

The Constitution grants Congress, not the president or state governments, the power to establish immigration laws.

Under the Immigration and Nationality Act of 1952, also known as the McCarran-Walter Act, Congress created a clear process for immigration removal cases.

In general, a U.S. noncitizen may face removal from the country based on violations to the immigration laws. Those range from unauthorized entry to committing or being convicted of certain crimes.

Congress designated the Executive Office for Immigration Review, an agency within the Department of Justice that houses the immigration courts and the Board of Immigration Appeals, as the body exclusively responsible for deciding immigration removal cases. The office also details the authority and standards for how immigration judges conduct deportation hearings.

Immigration judges undergo rigorous vetting and training. And their decisions are subject to appeal to the Board of Immigration Appeals, the administrative appellate body for decisions made by immigration judges.

The McCarran-Walter Act also contains several provisions that subject most immigration court decisions such as removal or asylum to judicial review in federal courts. That can happen on direct appeal or as part of habeas corpus petitions that challenge the legality of detention or removal.

The system is far from perfect. But Congress designed it to ensure legal expertise and due process guarantees.

As an immigration scholar, I believe that allowing Florida JAG officers to serve as immigration judges bypasses this framework that is set in law, and violates the constitutionally mandated separation of powers.

JAG officers, including those in Florida’s National Guard, are not governed by the McCarran-Walter Act. They are military lawyers in an entirely separate system, overseen by the Uniform Code of Military Justice, which defines the role of military judges. The code retains a unique military character that is substantially different from the judicial appellate system that governs immigration administrative rulings.

Simply put, neither Trump nor DeSantis can create an entirely new system of immigration judges outside of the one already established by Congress.

Federal agencies cannot deputize JAGs

A current immigration provision, known as the 287(g) program, authorizes U.S. Immigration and Customs Enforcement to collaborate with local law enforcement to enforce federal immigration laws.

But this provision only authorizes deputizing local law enforcement to assist “in relation to the investigation, apprehension, or detention” of immigrants – not the arbitration of deportation cases.

In the nearly three decades since 287(g) was enacted, no state or local officials – let alone military officers – have been permitted to act as immigration judges.

DeSantis’ plan seeks to convert Florida’s JAG officers from state to federal officials to function as immigration judges. Trump’s approval of this plan would also exceed the scope of his statutory authority.

Federal statutes allow the president to federalize the National Guard in limited instances: during times of war or national emergency.

But neither DeSantis’ rhetoric nor Trump’s framing of undocumented immigration as an “invasion” meet these legal thresholds.

JAGs cannot engage in domestic law enforcement

Even if Florida’s National Guard were federalized, JAG officers still could not legally serve as immigration judges.

The Posse Comitatus Act, enacted in 1878, restricts the use of federal military personal in civilian law enforcement. It reflects a longstanding American principle: The military should not police civilians.

Immigration enforcement – including deciding whether someone is deported – is fundamentally a civilian enforcement function.

The only narrow exceptions to the Posse Comitatus Act’s restrictions require a clear statutory basis, such as Trump invoking the Insurrection Act of 1807, a law that would allow the president to rely on the military for domestic enforcement to quell a rebellion or widespread violence.

Due process concerns

The DeSantis plan also compromises constitutionally guaranteed rights to a fair process for immigrants facing removal.

Immigration law is notoriously complex. Even experienced immigration lawyers struggle to keep up with its constant changes.

JAG officers, trained primarily in military law, would face immense challenges interpreting and applying immigration statutes. That’s especially true with only weeks of preparation, as DeSantis proposes.

But due process isn’t only about knowledge of legal technicalities. The Fifth Amendment guarantees due process rights to all persons on U.S. soil, regardless of immigration status.

For decades, courts have interpreted these protections to include fair hearings before qualified immigration judges – and, in most instances, judicial review.

By circumventing established procedures, DeSantis’ plan risks creating a system where expedited deportations come at the expense of accuracy and constitutional rights.