Let us stipulate that President Obama’s non-enforcement of the federal immigration laws, coupled with his even more patently lawless decree of positive legal benefits to illegal immigrants (e.g., work permits, reprieves from deportation), is an outrage. In fact, as I argued in Faithless Execution, it qualifies as an impeachable offense.
All that said, the remedy for lawlessness is not lawlessness. The comeuppance for an executive branch that egregiously oversteps its limited constitutional authority is not a judiciary that responds in kind. Thus, I’m at a loss to understand the enthusiastic applause on the right for an opinion and order issued on May 19 by Judge Andrew Hanen of the federal district court in Brownsville, Texas.
The ruling came in connection with a case brought by the governments of 26 states to challenge the validity of two of Obama’s unilaterally decreed immigration non-enforcement programs: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), and, to a more limited extent, Deferred Action for Child Arrivals (DACA).
Judge Hanen is justifiably outraged by the egregious misconduct of Obama Justice Department lawyers, a pattern of misrepresentations to the court that he found to be “intentional, serious and material.” In a nutshell, beginning in late 2014, Justice Department lawyers repeatedly promised that DAPA and its amendments to DACA were on hold and would not be implemented until mid February 2015. These representations lulled the plaintiff states into forgoing remedies they might otherwise have sought — e.g., restraining orders and a permanent injunction — to limit the damage done by Obama’s lawless conferral of benefits (which trigger various state expenditures) on illegal aliens. In reality, DAPA was proceeding apace, and applications by over 100,000 illegal aliens were granted during the purported suspension.
The Justice Department lawyers knew that what they were saying to the court and the states was untrue. Their superiors, who were closely following the case, clearly knew that the court and the states were being deceived. For lawyers privileged to have worked in the Justice Department when candor in dealings with the judiciary was a defining point of honor, the episode is repulsive.
That said, it does not justify Judge Hanen’s latest ruling, which directs the Justice Department to create a five-year ethics program. Professional training for at least three hours per year would be mandatory for Department lawyers in Washington who seek to appear in any of the 26 states involved in the underlying case. The judge further orders the Justice Department to create an office to monitor the ethics program and submit to Hanen an annual report certifying compliance.
This order is lawless. And ironically, for all its presumption, it is as feckless as it is misdirected.
Judge Hanen’s latest order is lawless. And ironically, for all its presumption, it is as feckless as it is misdirected.
Let’s start with its theatrical quality. The first thing to notice about the current posture of Texas v. United States is: The lawsuit is no longer before Judge Hanen. It hasn’t been for a long time. Nearly a year and a half ago, Hanen issued his critical ruling in favor of the 26 states. The Obama administration subsequently appealed, which effectively moved the case to the Fifth Circuit appellate court. Nine months later, a divided panel of that court also ruled against the administration’s DAPA edicts. The administration again appealed, and the Supreme Court, as expected, took the case. So Texas v. United States is now not only before the high court; it has been fully briefed, the justices heard argument on April 18, and a ruling is expected in late June.
So Hanen has gone out of his way to issue a decision in a case that is not before him. His decision involves the conduct of the government lawyers, an issue on which he had every opportunity to rule when the case was before him, but punted. He obviously should not be taking action now, with the nation’s highest court on the cusp of deciding the case.
If it were inevitable that the case would be coming back to him, perhaps the judge could rationalize imposing sanctions against the Justice Department now — after all, department lawyers would still be representing the government. As Hanen concedes, however, the case may not be coming back to him. That owes to the way he decided it.
On February 16, 2015, the judge issued his highly impressive, 123-page opinion. For all its meticulous craftsmanship, though, the ruling sidestepped the constitutional issue at the core of the states’ challenge: Do Obama’s decrees, which flout Congress’s immigration statutes, contravene the president’s constitutional duty to execute the laws faithfully? Instead, Judge Hanen ruled against the administration on a narrow procedural ground. Construing DAPA as a new regulation, he reasoned that it failed to comply with the notice-and-comment requirements of the Administrative Procedures Act (APA). As John Yoo wrote in National Review Online at the time, this was dubious, at best. Since DAPA was not implemented by a formal regulation (it is basically an internal Department of Homeland Security guidance memo), the APA may not apply.
Perhaps sensing this vulnerability, the Fifth Circuit majority expanded on Hanen’s reasoning in affirming his ruling. In addition to the procedural APA violation, the panel added a substantive one: DAPA’s undermining of Congress’s immigration statute. But a vigorous dissent highlighted the potential flaws of the argument, contending that the APA does not apply at all, and hence that there were no APA violations of any kind.
In its outrageous overreach, even the Obama administration perceived the need to pretend that its immigration decrees were supported by federal law.
Finally, on being presented with all this shadow-boxing, an apparently frustrated Supreme Court took the unusual step of directing the parties to brief the question that the lower courts had left unaddressed: Does DAPA violate the Constitution? That question, besides being the ultimate one, is probably a straight legal issue that needs no further factual development in the lower court. Thus, if the Supreme Court decides it, there may be no reason to return the case to Hanen.
Now, let’s put aside the question whether Judge Hanen should be acting on the case at this point. Let’s focus on the action he took.
A federal district judge has no authority to direct the Department of Justice to institute an ethics program, much less one based on the prospect that many of the hundreds of government lawyers in Washington, who have absolutely nothing to do with the misconduct at issue in Texas v. United States, may undertake to appear in any of 26 states, 25 of which are not Judge Hanen’s state of Texas (and only a fraction of Texas constitutes Judge Hanen’s district).
How far off the reservation is Hanen here? So much so that the only “authority” he cites for his outlandish directive is “the beloved  movie Miracle on 34th Street.” Seriously.
In its outrageous overreach, even the Obama administration perceived the need to pretend that its immigration decrees — which the president repeatedly admitted he was without authority to issue — were supported by federal law. Judge Hanen, to the contrary, just flexes raw judicial muscle: purporting to order an executive department, established, funded, and overseen by Congress, to expend taxpayer money on an elaborate five-year program — i.e., funds that Congress has not appropriated for a program that Congress has not authorized.
There are several infuriating things about this, but three stand out.
1. The context. This matter of national immigration policy, which should be decided by the political branches in conjunction with the states, has instead become a judicial case because (a) President Obama violated his constitutional duty to enforce the laws faithfully and (b) Congress abdicated its constitutional duty to rein in executive lawlessness — especially lawlessness that usurps Congress’s own authority — by failing to deny funds and/or impeach the executive officials who are responsible for the lawlessness.
Consequently, the entire case is about a betrayal of our constitutional framework. Hanen’s court is supposed to be the place where our constitutional framework gets reaffirmed, where the rule of law is vindicated. But instead, Hanen gets right in on the act, as if the point were to show Obama that two can play this petulant, post-constitutional game.
2. The court’s legitimate power. Judge Hanen is not without considerable authority to take legitimate curative action that would have a lot more potential to correct despicable Justice Department behavior than having its unethical leadership run an unauthorized ethics program.
For one thing, Hanen clearly has the power to hold government lawyers who lied to him in contempt of court — a finding that can result in the imposition on the contemnor of a fine or sentence of up to six months’ imprisonment. While this judicial power has real teeth, it is restrained: (a) It can be applied only to persons (including lawyers) who misbehave in the court’s presence or who are otherwise complicit in obstructing the administration of justice, and (b) punishment is limited to a fine or a term of imprisonment — rather than anything that pops into the judge’s head as a fit cure or punishment
This was an Obama administration assault on the rule of law. But Judge Hanen did not direct his remedial program at the Obama administration.
Judge Hanen says he declined to impose sanctions against the offending government lawyers “in a monetary fashion” because the Justice Department told him any fine would be paid by taxpayer funds. Rubbish. Even if the Justice Department’s representation in this regard is true (and with these guys, you never know), fines against the lawyers would not have cost taxpayers nearly as much as the five-year ethics program Hanen has presumed to order. Moreover, if he had sanctioned the lawyers as he should have, the real punishment would have been the contempt citation on their records. Any fine would have been secondary, as would a short stint in custody — a punishment option Hanen neglects to mention in his opinion’s section titled “The Appropriate Remedy for the Inappropriate Conduct.”
Hanen not only failed to sanction the government lawyers who repeatedly looked him in the eye and lied; he does not even mention their names in his opinion. Hanen is not the first judge to restrain himself from meeting outrageous misconduct with the commensurate punishment the law designs for it; judges understandably don’t like to hold lawyers in contempt. But by not naming the offenders, Hanen undermined any legitimate reason for issuing this opinion. Had he identified the lawyers, the opinion could then follow them around for the rest of their careers, putting every judge and adversary on notice of their suspect character. If Hanen did not wish to take further punitive action himself, an opinion naming names could have been referred for further action to the Justice Department’s Office of Professional Responsibility and to the state bar associations of which these lawyers are members.
Without that, there is no point in this exercise. It is less a ruling than a tantrum.
3. Corporate punishment of the innocent for individual guilt. Hanen’s diktat punishes the innocent while letting the guilty off the hook. His court was lied to by individual government lawyers who were doubtless acting at the direction of their Obama Justice Department superiors in furtherance of an administration policy that the president sees as vital to his transformative legacy. Yet Hanen seeks to punish not the individual wrongdoers but the Justice Department — and not the Obama Justice Department, whose culture of politicized lawlessness caused the wrongdoing, but the Justice Department as an institution.
As we have seen with other Obama initiatives, the president is desperate to implement his immigration amnesty regardless of any legal obstacles. He calculates that by dramatically changing the facts on the ground, he renders his successor unable to roll back the tide. That is what transformational change is all about.
#related#In short, this was an Obama administration assault on the rule of law. But Judge Hanen did not direct his remedial program at the Obama administration. He concocted a five-year program, even though the Obama Justice Department will be gone in less than eight months. He let the lawyers who actually misled him off the hook, but he wants to impose make-work ethics training on hundreds of lawyers who neither appear in his court nor had anything to do with the despicable conduct in Texas v. United States. And even in directing the attorney general to report to him in 60 days about how she will improve the performance of lawyers Department-wide, there is no mention of individual responsibility. A system works when rule-breakers are held accountable, but Judge Hanen does not ask Attorney General Loretta Lynch, “What are you going to do about the lawyers who lied to me?”
To the contrary, he imposes the classic government “solution”: an ostentatious, expensive program that does not address the controversy that spawned it, and that will no doubt live beyond Hanen’s five-year prescription — or do you think the next administration will want headlines about “Discontinuing Justice Department Ethics Program”?
See how post-constitutional governance works? The president not only refuses to execute the laws, but flouts them; Congress not only turns a blind eye, but funds the lawlessness; a court not only strains to avoid the constitutional issue that must be addressed, but legislates a training program for hundreds of lawyers unconnected to either the case or his court. And you get to pay . . . and pay . . . and pay . . .