NOTE TO READERS: The following post catches up with developments while the writer was necessarily away from work this week.
The federal judge in Texas who is handling the claim of 26 states that the Obama administraiton’s new deferred-deportation policy is illegal threatened this week to strike down that policy altogether, even without holding a full trial.
Obviously nettled by government lawyers’ conduct that the judge found had misled him, the judge held off on such an ultimate defeat for the policy at this point, but made clear that he is holding it in reserve as he sees how government attorneys act from here on.
The jurist, U.S. District Judge Andrew S. Hanen of Brownsville, already has issued a temporary order barring the federal government from doing anything to carry out the new policy, while he moves toward a trial on the legality of the program. He reaffirmed that order in a a new ruling on Tuesday.
But the most significant aspect of that action, along with the important effect of a second order that he also released on Tuesday, was the disclosure that the judge believes that it would be well within his powers to simply wipe out all of the government’s legal filings in the case up to the present, and thus to declare a victory by default for the 26 states challenging the policy.
Judge Hanen’s deep displeasure arose after government lawyers conceded in a court filing in March that the Department of Homeland Security had begun putting into effect some parts of the new deferred deportation policy, even after the judge had blocked its enforcement and after government counsel had told the judge several times that officials were not implementing the policy and would not do so before the judge had a chance to issue his initial ruling in the case.
The judge wrote on Tuesday that he was “extremely troubled by the multiple misrepresentations by the government’s counsel, both in writing and orally.”
He added: “Fabrications, misstatements, half-truths, artful omissions, and the failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life, but in the courtroom, when an attorney knows that both the court and the other side are relying on complete frankness, such conduct is unacceptable.”
Many federal judges, he said, would react to such “misconduct” by considering striking all of the filings that the lawyers on that side had submitted to the court — a move that would shut down the case immediately, in favor of the challengers. He said that he might well do so, under other circumstances, but decided not to do so at the present time because of the nationwide importance of the issues in the case. The nation, he said, “needs and deserves” a decision on the policy’s legality — an issue that, as of now, awaits a full trial in his court.
Although he thus decided to continue moving the case forward, he did comment that he would be considering pondering what “an appropriate remedy” should be for the misconduct. But, he added, he neede more information before he could fashion a possible remedy.
He thus ordered the government to file a wide range of documents showing just what the government had done to start implementing the policy, who in the government signed off on that, and what internal discussions were had about it. Those documents must be filed by April 21, he ordered, and he gave the states that sued until May 1 to decide whether they needed additional disclosures to be made about the government’s actions.
Judge Hanen’s criticisms came in both of the opinions he released with his orders on Tuesday. It was in one of those orders that he turned down a government request that he lift his order against implementation, or that he at least confine the bar to enforcement to only those states that had sued, rather than being in force nationwide.
In the course of denying that plea, the judge once again warned that he may yet consider striking all of the government’s filings and ending the case by default, depending upon how the government lawyers conduct themselves in coming weeks.
The government, besides asking Judge Hanen to lift his order to permit the policy to begin, has asked the U.S. Court of Appeals for the Firth Circuit to overturn the Hanen order so that enforcement can start. The Fifth Circuit Court has not yet ruled on thst plea, but it did issue a ruling on Tuesday forbidding, for procedural reasons, the further processing of a separate lawsuit chllenging another aspect of the government’s immigration program.
At stake in that other case was the legality of the so-called “Dreamers” policy that the government has been carrying on in 2012. That allows young people who came to the U.S. as children with their undocumented immigrant parents, and have grown up and taken part in community life since then and have stayed out of trouble. Such individuals can qualify for deferral of deportion, similar to that involved in the broader program under challenge in Judge Hanen’s district court.
Just as 26 states have challenged the broader program, the state of Mississippi has challenged the 2012 program as illegal. But, in its ruling on Tuesday, the Fifth Circuit Court decided that Mississippi had not shown that it would actually suffer any harm from that program, and thus had no right to file its lawsuit.
While that may suggest some hesitance by the Circuit Court about letting the 26 states’ separate challenge to go forward before Judge Hanen, the Tuesday decision by the appeals court was narrow in scope, and appeared to allow Mississippi to come forward with new evidence about the harm it claims it would suffer, and thus seek to revive its lawsuit.
Along with Mississippi, that separate lawsuit had been filed by a group of government immigration agents, contending that it would violate their obligation to enforce the law if they obeyed the new deferred deportation policy for young people. In another part of the Circuit Court’s ruling Tuesday, it declared that the agents had not shown they would actually be harmed, so they, too, were not allowed to sue.