Today, April 17, the immigration lawsuit filed by 26 states against the administration goes to the next level. The Fifth Circuit will hear oral arguments on the government’s request for an emergency stay of the injunction issued on February 16 by Judge Andrew Hanen pending appeal.
This is the just the preliminary round, since the Fifth Circuit will hear separate arguments later on the substantive issue of whether an injunction was properly issued in the first place. Still, today’s courtroom drama marks an important step in the fight to stop President Obama’s unilateral immigration action to grant the equivalent of amnesty to 5 million illegal aliens.
As I explained here, on April 7 Judge Hanen refused to lift his stay and issued an additional order accusing the administration of misleading the court about its partial implementation of the president’s amnesty plan.
This Tuesday the states filed their final, supplemental brief with the Fifth Circuit for tomorrow’s hearing. It argues that nothing in the government’s brief “identifies an ‘emergency’ need to stay the preliminary injunction until resolution of this already expedited appeal.” In fact, the states note, the injunction “preserves the status quo, which has existed for decades, without touching the Executive’s prosecutorial discretion not to pursue certain removal proceedings.”
In addition to reiterating many of the arguments they made in the district court, the states claim that “the Executive’s unclean hands are yet another reason to deny the equitable relief of a stay.” They point to Judge Hanen’s April 7 finding that the government engaged in “‘misconduct’ in misrepresenting whether it had immediately implemented Expanded DACA.” The states cite a 1945 Supreme Court case, Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., in which the Court said that the unclean-hands doctrine “closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.”
The government’s response to the April 7 finding of misconduct is an April 14 letter to the Fifth Circuit from Scott McIntosh, an attorney in the Justice Department’s Civil Division. McIntosh claims — without offering supporting evidence of any kind — that Judge Hanen’s “suggestion that the federal government misled” him is “incorrect and unwarranted.” In an amazing display of governmental arrogance, the letter goes on to state that “in any event” it doesn’t matter if the misconduct occurred because “the court identified no respect in which that issue affected the merits of the preliminary injunction.”
While the government’s misconduct may not have ultimately changed the results of Judge Hanen’s ruling against the government, Judge Hanen made it very clear that his scheduling of the preliminary injunction hearing was entirely dependent on the assurances he received from Justice Department lawyers that no part of the president’s plan was being implemented. Had the government revealed that it was issuing benefits (to 100,000 recipients, no less) under the expanded DACA program, Judge Hanen might very well have issued his order earlier to prevent that from happening.
The lawyer arguing for the states will be Scott Keller, the solicitor general for Texas. The names of the three-judge panel hearing the arguments were also released this week. The states will be arguing before judges appointed by Ronald Reagan, George W. Bush, and Barack Obama, respectively: Jerry Smith, Jennifer Elrod, and Stephen Higginson. So Texas and the rest of the states are probably hoping they have drawn at least two “hole cards” in their Texas Hold’em immigration poker game.
- Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation.
Originally appeared in the National Review Online