In December 2014, 26 states challenged the legality of President Obama’s executive action on immigration. Led by Texas, the states sought to immediately halt the federal government’s plans to defer the deportations of millions of aliens. Relax, the Justice Department told Judge Andrew Hanen in Brownsville, Texas. We won’t implement this program till February, the government assured the states. On that representation, Texas did not seek a temporary restraining order, and the court allowed the proceedings to stretch into February.
Except it wasn’t true.
In an unprecedented order, Judge Hanen has now placed the Justice Department under his supervision to ensure that they act ethically. Texas had charged that DHS’s executive actions were in bad faith; now, Judge Hanen has charged that the Justice Department’s defense of those actions was also in “bad faith.” The Obama administration is certain to appeal this rebuke of its stunning actions. Even if the remedy should ultimately be modified, the undisputed facts, as Judge Hanen methodically demonstrated, show that their “conduct is certainly not worthy of any department whose name includes the word ‘Justice.’”
President Obama’s November 2014 executive action had two components. The first element, known as DAPA (“Deferred Action for Parents of Americans”), would have deferred the deportation of up to 4 million aliens who are the parents of U.S. citizens or of lawful permanent residents. The second element expanded President Obama’s 2012 executive action, known as DACA (“Deferred Action for Childhood Arrivals”). The original policy granted “deferred action” status for a two-year period, and the expanded policy would now grant this status for three years. In December 2014, Texas and 26 other states challenged the entirety of the November executive action — both DAPA and expanded DACA.
The misrepresentations continued. In January 2015, as 100,000 renewals were being granted under the expanded DACA, the Justice Department told the court, quite clearly, that “no applications for the . . . revised DACA would be accepted until the 18th of February, and that no action would be taken on any of those applications until March the 4th.” It gets worse.
On February 16 — two days before the government’s purported deadline — Judge Hanen ordered the government to put the entire executive action on hold. One week later, the government asked Judge Hanen to stay, or put on hold, his order, so it could file an appeal. The government repeated in its motion that it would start to receive applications on February 18, but could no longer do so because of the injunction. “Their motion was certainly calculated,” Judge Hanen observed, “to give the impression that nothing was happening.” But plenty was happening. It gets even worse.
Remarkably, even after the court’s order, DHS continued to grant relief under the expanded DACA program. The government did not confess this error until two weeks later on March 3, 2015. “What counsel did,” Judge Hanen wrote, “borders on the incredible.” The government misled the court about its conduct before February 18, and continued to conceal its actions after the injunction was issued.
The Justice Department rationalized that its lawyers ‘lost focus on the fact’ or that somehow ‘the fact receded in memory or awareness.’
This egregious conduct violates the most basic tenets of judicial ethics, which demand an ongoing duty of candor to the courts. What is the government’s defense? The Justice Department rationalized that its lawyers “lost focus on the fact” or that somehow “the fact receded in memory or awareness.” In one of the more light-hearted parts of the otherwise sober opinion, Judge Hanen quoted from the classic movie Miracle on 34th Street. When young Tommy Mara was asked to testify about Kris Kringle’s secret identity, he was asked, “Tommy, you know the difference between telling the truth and telling a lie, don’t you?” The boy answered, “Gosh, everybody knows you shouldn’t tell a lie, especially in court.” The Justice Department lawyers deserved coal in their stockings.
These accusations aren’t even the most audacious aspect of the court’s 28-page order. In a decision that will be studied in legal-ethics classes for decades to come, Judge Hanen placed many of the lawyers at the Justice Department’s headquarters in Washington, D.C. — known as “Main Justice” — under his personal supervision. This relief is reminiscent of federal courts that placed recalcitrant school districts under supervision to ensure compliance with desegregation orders. Or more recently, this relief is akin to judges who placed deficient police departments under federal oversight to ensure they reduce police brutality or other offenses. What is remarkable here is that Main Justice will now be required to report to Judge Hanen’s authority for the next five years to improve its ethics. The remedy has five distinct components
First, Judge Hanen sent back to school all of the lawyers in Main Justice who litigate in the 26 states that challenged DAPA. They are required to take a three-hour legal-ethics case on “candor to the court.” And this has to be a real class taught by a “recognized ethics expert who is unaffiliated with the Justice Department,” not a “self-study or online study” course. Second, to ensure compliance, the Justice Department must appoint a person to certify annually that all attorneys who appear in the 26 states have completed the ethics course. This order will remain in effect until December 31, 2021.
Third, Judge Hanen ordered Attorney General Loretta Lynch to report in 60 days “with a comprehensive plan to prevent this unethical conduct from ever occurring again,” and to “report what steps she is taking to ensure that . . . the Justice Department trial lawyers tell the truth — the entire truth.” Fourth, the attorney general is also required to report in 60 days “what steps she is taking to ensure that the Office of Professional Responsibility . . . appropriately disciplines those whose actions fall below the standards that the American people rightfully expect from their Department of Justice.” (I would strongly recommend that the offending attorneys self-report this order to their state bar’s disciplinary committees, before Judge Hanen does it for them.)
There is a fifth remedy that I frankly do not understand. The court ordered the government to “file a list of each of the individuals in each of the Plaintiff States given benefits” under DACA, including their names, addresses, and other personally identifying information. These records would remain sealed, but the states would be able to access them on a “showing by a state of actual or imminent damage that could be minimized or prevented by release of the information to one of the Plaintiff States.” This portion of the order is somewhat vague, but it would seem that Judge Hanen would allow the release of the identities of the aliens who benefited from expanded DACA if it would result in danger to the state’s interest. I am struggling to think of what would satisfy as good cause for release of this information, or why the court would even want this information. This remedy is inappropriate, and should be struck.
At this very moment, lawyers in the Robert F. Kennedy Building on Constitution Avenue are frantically drafting an emergency appeal, or perhaps even a motion to disqualify Judge Hanen. Let me propose something different to diffuse the situation. Attorney General Loretta Lynch should personally submit a motion for reconsideration, and ask to appear before Judge Hanen in Brownsville to explain the situation. This sort of bold leadership would elevate to the highest ranks of government how important ethics and candor are, and signal to the court that this issue is being taken seriously. This will not undo the damage, but it will begin the process of restoring the justice in her Department.
— Josh Blackman is a constitutional-law professor at the South Texas College of Law in Houston and the author of Unraveled: Obamacare, Religious Liberty, and Executive Power. Blackman co-authored an amicus brief on behalf of the Cato Institute in U.S. v. Texas. He blogs at JoshBlackman.com and tweets @JoshMBlackman.