WTF?
A federal judge with a history of anti-immigrant sentiment ordered the federal government to turn over the names, addresses and “all available contact information” of over 100,000 immigrants living within the United States. He does so in a strange order that quotes extensively from movie scripts and that alleges a conspiracy of attorneys “somewhere in the halls of the Justice Department whose identities are unknown to this Court.”
It appears to be, as several immigration advocates noted shortly after the order was handed down, an effort to intimidate immigrants who benefit from certain Obama administration programs from participating in those programs, lest their personal information be turned over to people who wish them harm. As Greisa Martinez, Advocacy Director for United We Dream, said in a statement, the judge is “asking for the personal information of young people just to whip up fear” — fear, no doubt, of what could happen if anti-immigrant state officials got their hands on this information. Or if the information became public.
The judge is Andrew Hanen, who conservative attorneys opposed to President Obama’s immigration policies appear to have sought out specifically because of his belief that America does not treat immigrants with sufficient hostility.Texas v. United States was filed shortly after President Obama announced policy changes that would permit close to 5 million undocumented immigrants to temporarily work and remain in the country. As the name of the case suggests, the lead plaintiff is the State of Texas, yet the Texas Attorney General’s office did not file this case in Austin, the state’s capitol. Instead, they filed it over five hours away in the town of Brownsville.
At the time, only one active federal judge, Judge Hanen, sat in Brownsville, so the attorneys’ decision to file their case nearly 300 miles away meant that it was highly likely that the case would be assigned to a judge that once accused federal officials of engaging in a “dangerous course of action” because they permitted an undocumented mother to be reunited with her child without facing criminal charges. Hanen later issued a nationwide order halting the Obama administration’s new policies.
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The legality of DAPA and this expansion of DACA (but not the underlying DACA program itself) are now before the Supreme Court.
Hanen’s doxing order arises out of a third, less consequential policy change described in the DHS directive. Before the directive, DACA beneficiaries had to reapply every two years. Under the directive, they need to reapply every three years.
At an early stage in the litigation, the plaintiffs’ attorneys and Judge Hanen asked Justice Department lawyers whether aspects of the directive would be implemented prior to a January hearing date, and the DOJ attorneys responded that “I really would not expect anything between now and the date of the hearing.” The Justice Department made similar statements at later points in the case. At that time, DAPA and expanded DACA were not yet being implemented, but the shift from two years between DACA renewals to three years was already under way.
Hanen claims that the Justice Department attorneys intentionally deceived him by not mentioning the fact that the amount of time afforded to DACA beneficiaries had changed. The Justice Department claims that, at most, they misunderstood what Hanen was asking for. They believed that Hanen was only asking about the dates when DAPA and expanded DACA would be implemented, and not about the shift from two to three years. This distinction matters because, while deliberately misleading a court is a very serious ethical breach, misunderstanding a question is not.
In a brief filed in Hanen’s court, the Justice Department attorneys offer their version of events.
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Hanen’s order calls for two sets of sanctions against the Justice Department. The first requires the government to turn over the personal information — including addresses — of every single one of the more than 100,000 DACA beneficiaries that received a three-year renewal or approval. Though Hanen will initially keep this information under seal, he adds that he shall “on a showing of good cause . . . release the list or a portion thereof to” state authorities in one of the 26 states that sued the administration to halt DAPA and expanded DACA.
Additionally, Hanen ordered potentially hundreds of attorneys to attend remedial courses, regardless of whether those lawyers have ever appeared in his courtroom or even set foot in the state of Texas. Under his order, every single lawyer “employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States” must “annually attend a legal ethics course.” The Attorney General must appoint someone to provide annual reports to Hanen for five years, which must include “the name of the lawyer, the court in which the individual appeared, the date of the appearance and the time and location of the ethics program attended.” And, in case that’s not enough, he also ordered the Attorney General herself to “report to this Court in sixty (60) days with a comprehensive plan to prevent” the alleged misconduct that Hanen believes happened in his courtroom “from ever occurring again.”
The Justice Department will almost certainly appeal Hanen’s order to the United States Court of Appeals for the Fifth Circuit or, if necessary, the Supreme Court. Unfortunately for DOJ, the Fifth Circuit is a conservative court and the Texas case has twice wound up in front of an especially conservative panel of Fifth Circuit judges. One of these judges has his own history of issuing questionable sanctions against the Obama administration.
Nevertheless, Hanen’s order is sufficiently unusual that it may cause even these judges to blink. Judges, after all, are lawyers. And many of them know what it is like to be on the receiving end of a judge who seems to have it in for you.
See here and here for lots of background. I have no idea what to make of this, but good Lord this judge is a mess. Daily Kos has more.
This order may be a bit over the top, but there’s a real point to it: don’t lie to a federal judge.
I don’t know any of the backstory except what is related in the order itself. But in that order, Judge Hanen sets out how lawyers from the Justice Department repeatedly and deliberately lied to the court about what was being done with respect to DACA and DAPA cases. As he discusses in the order, monetary sanctions would not have the necessary effect, because they’d be paid by the Treasury. He also considered and declined to implement “death penalty sanctions,” where the United States’ pleadings would be struck and it would lose automatically. Judge Hanen crafted a sanctions regime that is a shot across the bow to the Justice Department to clean up their act. And given what I’ve seen in federal courts, that’s not a bad thing.
I say all this as someone who has no sympathy whatsoever for the states’ position, and who believes that Judge Hanen should have tossed this case out on its ear from the beginning.
I knew Andy Hanen in passing when he practiced law with a major Houston firm decades ago, and was a leader in the local bar association. It is hard for me to imagine him acting rashly or improperly. There must be more to this story.
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