The Obama administration’s two levels of defense of its broad new immigration policy — one, a continued attempt to put the policy into effect, the other, a move to head off a federal judge’s ethical complaints against federal lawyers in the case — are moving along even in the slow court days of summer.
The policy, seeking to put off deportation of close to five million undocumented immigrants living in the U.S., has never gone into effect because of lower court orders stalling it. On June 23, the Supreme Court left those orders in effect, splitting 4-to-4. That was not a decision for or against the policy, just a divided response to the question of enforcement while the courts weigh its legality.
Meanwhile, the Texas federal trial judge who originally blocked the policy — U.S. District Judge Andrew S. Hanen of Brownsville — has been overseeing filings in response to his broad sanctions order in May against the Justice Department for what he found to be ethical lapses by two Department attorneys as the case unfolded in his court — charges that the administration strongly denies.
This past week, new developments occurred on both fronts.
The Supreme Court’s docket showed that its clerk had formally sent on to the Justices the Obama administration’s request to reconsider the immigration policy itself, by agreeing to a rehearing of the case – to be held when there is a ninth Justice on the bench. Under normal summer scheduling, the Court could issue an order on that request later this month. (The case is United States v. Texas, docket 15-674.)
There is no duty for the Justices to act by then, and there appears to be a fair prospect that they won’t. Last Term, when it had a rehearing request in another controversy that had ended with a 4-to-4 tie — on union fees charged to non-member workers in public sector jobs — the Court took that off of its schedule for discussion nine times before finally simply denying it, without comment or noted dissent.
Under the Court’s rules, a rehearing on a decided case almost never will be granted unless the Justices first ask the other side in a case to respond. There is no indication that they have yet done so in the immigration case.
The challenge of 26 states to the deferred deportation policy has never actually gone through a full trial, and Judge Hanen, presiding over the case, has put everything on hold on the case itself while he pursues his ethics punishment order. He had been scheduled to hold a conference with lawyers on the ethics issue on August 22, but on Friday, without giving an explanation, he put off that session until August 31.
The Justice Department has filed a 51-page document — being kept under seal because it deals with specific performances and assignments of government attorneys — in response to the judge’s order in July that it provide any information it wished that bears upon what kind of punishment might ultimately be imposed for the claimed ethical lapses. His May sanctions order itself is on hold for the time being.
Meanwhile, Judge Hanen has had before him since mid-June a formal request by the Justice Department to vacate his May ethical sanctions order. The Department has argued, over the protests of lawyers for the challenging states, that the set-aside of that order is necessary to protect Judge Hanen’s continued authority to deal with the ethical question before appeals from the May order are moved on up to the U.S. Court of Appeals for the Fifth Circuit.
If those appeals proceed, the Department has contended, that probably would interrupt the trial judge’s jurisdiction to proceed. This part of the controversy involves very complex issues of federal court rules dealing with jurisdiction, and the two sides are deeply divided on it.
It seems likely that the complexity of that question, as well as the length of the Department’s new ethical arguments and evidence, could explain the judge’s order to delay the status conference until the end of the month. There also could be scheduling conflicts.
In any event, the administration policy itself remains essentially in a legal limbo — neither finally judged to be legal or not, but still not in force. It could be that time will run out on the Obama administration — the President’s term ends on January 20 — before there is a final word on it in the courts.
And, in the meantime, that policy remains a deeply controversial subject in this year’s presidential election campaign.