As expected, the Justice Department had a very tough time in federal court yesterday. Appearing before Judge Andrew Hanen down in Brownsville, Texas, DOJ attorneys strove mightily to explain away how the Department misled the court in the immigration lawsuit filed by 26 states against President Obama’s amnesty plan. Both the AP and a private source who was in the courtroom say it’s quite possible that Judge Hanen will impose sanctions on the lawyers and/or the administration.
The states filed their lawsuit early last December, shortly after President Obama announced his new, post-election immigration policy. For three months while the lawsuit was pending and Judge Hanen was reviewing briefs and holding hearings and conference calls with the parties, DOJ lawyers were telling him that none of the president’s announced new policies were being implemented. The hearing on the injunction requested by the states was held on January 15. Judge Hanen delayed making his decision on the injunction until February 16 based on the repeated assurances from Justice that no part of the president’s new plan would be implemented until February 18 at the earliest.
However, on March 3, Justice suddenly filed an “Advisory” notifying the court that the administration had, in fact, issued three-year deferrals to more than 100,000 aliens. Indeed, the deferrals had started flowing back in November, almost as soon as Jeh Johnson, the secretary of the Department of Homeland Security, issued an implementing “Directive.” Hanen scheduled yesterday’s hearing for Justice to “fully explain” all of the “circumstances” surrounding the Advisory.
My courtroom source reports that Judge Hanen directed a lot of tough questions to the DOJ lawyers and seemed to treat the occasion as almost a “show-cause” hearing on a motion for contempt that hadn’t yet been filed. Judge Hanen asked whether—if DOJ did misrepresent the facts—any financial sanction on the Department of Homeland Security or on specific DOJ attorneys would ultimately be paid with taxpayer funds. The lead DOJ attorney, Deputy Assistant Attorney General Kathleen Hartnett, admitted that taxpayer funds would be used to pay such sanctions. The judge even threw out the potential for striking the government’s pleadings with prejudice if he found the government had engaged in willful misrepresentation.
On the merits of the state’s complaint, DOJ admitted that it knew all along that the administration had started issuing three-year terms of deferred action and work permits last November 24. DOJ also admitted that it knew the states’ lawsuit challenged the entirety of the DHS Directive.
Hartnett’s excuse for misinforming the judge was that DOJ “didn’t understand” the states to be arguing in their motion requesting an injunction that the issuance specifically of those three-year deferrals would cause irreparable harm to the states. Instead, Hartnett claimed the injunction motion argued only that the states would suffer irreparable injury from the expansion of the number of aliens eligible for deferred action, not the new deferred action terms awarded to previously eligible illegal aliens.
Judge Hanen tore into that defense. He reminded DOJ that, at the injunction hearing, the states had explicitly stated that the expanded version of the prior DACA program (which included the expansion from two-year deferrals to three-year deferrals) for “Childhood Arrivals” was also at issue in this case. In fact, Hartnett is one of the DOJ lawyers who had previously told Judge Hanen that “no action would be taken on any” of the applications received from illegal aliens by DHS under the president’s plan for the new DAPA program or the 2012 DACA program. The judge told the DOJ lawyers that “like an idiot,” he relied on their representation that DHS would not be implementing any part of the Directive until February 18.
Judge Hanen even asked Hartnett if he could rely on the answers she and the president were giving:
Judge Hanen: “Can I trust what the president says? That’s a yes or no question.”
Kathleen Harnett: “Yes your honor.”
Judge Hanen also addressed DOJ’s pending motion to stay the preliminary injunction pending the appeal Justice has filed with the Fifth Circuit Court of Appeals. Judge Hanen asked if DOJ was seriously arguing that the preliminary injunction should be limited to Texas, since federal immigration classifications apply nationwide. DOJ argued for territorial limits, saying that DHS has done pilot programs only in certain localities, in its discretion. That, of course, doesn’t address whether a remedy for an unlawful immigration classification program must be nationwide.
Judge Hanen ordered DOJ to file its written response to the states’ motion for early discovery related to the issuance of the 100,000 deferrals within 48 hours. Given the tenor of the hearing, Judge Hanen will obviously also be thinking about whether any sanctions are in order.
— Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation. Along with John Fund, he is the coauthor of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama’s Enforcer: Eric Holder’s Justice Department.