The Corner

Law & the Courts

Judge Hanen Sets Aside His Lawless Order in Case Challenging Obama’s Immigration Amnesty

Judge Andrew S. Hanen of the federal district court in Brownsville, Texas, was justifiably outraged that Obama Justice Department lawyers lied to the court and the plaintiffs in proceedings related to the challenge by 26 states to the president’s lawless amnesty decrees for certain classes of illegal aliens. Nevertheless, as I explained in a column two weekends ago, Judge Hanen’s response was also lawless: ordering the Justice Department to create a sprawling legal ethics program.

Hanen’s order, in addition, was (a) feckless, in that he shrank from imposing the lawful remedy of holding the offending government lawyers in contempt (in fact, he refrained from even naming them in his opinion); (b) misdirected, in that he focused on the Justice Department as an institution rather than the Obama Justice Department, which will be gone in a few months, by punishing potentially thousands government lawyers who had nothing to do with the contemptuous lying; and (c) inappropriate, in that Hanen should not have taken meaningful action on a case that is no longer before his court – and, in fact, is before the Supreme Court, which is poised to rule in the next three weeks.

Now, the Washington Times and Politico report that Judge Hanen has blocked his order from going into effect. He has suspended both the ethics program and his direction that the Justice Department provide the court with information about the thousands of illegal immigrants who were granted benefits under Obama’s DAPA program – Deferred Action for Parents of Americans and Lawful Permanent Residents (which builds on DACA, Obama’s granting of Deferred Action for Child Arrivals). The knowing misrepresentations by Justice Department lawyers involved telling the judge and the plaintiff states that the administration would not put DAPA into effect until mid-February 2015; to the contrary, as the lawyers and the Justice Department were aware, DAPA was proceeding apace, with applications for tens of thousands of illegal aliens granted.

Judge Hanen has now stayed the matter until August 22. By then, besides the anticipated Supreme Court ruling, we can expect the Justice Department to have complied with Hanen’s latest directive: that DOJ suggest appropriate sanctions for the misconduct and/or submit evidence in mitigation.

Given that the Justice Department has already apologized for any “misunderstanding” caused by its false statements but denied any intention to mislead the court and the plaintiffs, it is doubtful that the government’s submission will be very edifying. Attorney General Loretta Lynch obviously grasps that Hanen knows he has no authority to order what he has ordered, and she has no intention of agreeing to anything that would be taken as an admission of Justice Department guilt. Judge Hanen, despite his righteous outrage, clearly does no wish to impose meaningful punishment on the government lawyers who actually did the lying. So I’d be surprised if we heard much more about this matter.

Other than the Supreme Court’s ruling, the next important phase in this controversy is the November election. If Hillary Clinton wins, there will be a renewed push for “comprehensive immigration reform” (in effect, amnesty for illegal aliens) – especially if Democrats make gains in Congress (although there is plenty of Republican support for amnesty, especially for illegal aliens in the DACA and DAPA categories). If Donald Trump wins … well … who knows what will happen since he wants both to deport all illegal aliens and to bring most of them back with amnesty.

In any event, since the current Republican-controlled Congress has claimed to oppose Obama’s usurpation of Congress’s power to write immigration law yet fully funded Obama’s lawless decrees, I reckon there’s a better chance that DACA and DAPA will eventually be codified than scrapped.