Obama’s DOJ Loses Another Round in Immigration Battle in Texas

COMMENTARY Border Security

Obama’s DOJ Loses Another Round in Immigration Battle in Texas

Apr 13, 2015 4 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

Federal district court judge Andrew Hanen slammed the Obama administration with a solid one-two punch late last night. In one order, he refused to lift the preliminary injunction barring implementation of the president’s immigration amnesty plan. In a second order, Hanen said that the “attorneys for the Government misrepresented the facts” about the implementation to the court.

On February 23, the Justice Department filed a “Motion to Stay” the injunction pending an appeal to the Fifth Circuit Court of Appeals. Judge Hanen denied that motion, saying not only that his original ruling was correct, but that subsequent events had “reinforced” the correctness of his original decision.

Hanen cited President Barack Obama’s own words as part of this reinforcement. Speaking at a town hall after the injunction order had been issued, the president said that any government official who did not halt the deportation of anyone who qualifies under his new plan would suffer the “consequences.”

Hanen took that remark as evidence of President Obama’s instructing federal law-enforcement officials that our immigration laws “are not to be enforced when those laws conflict” with the president’s plan and that, if Department of Homeland Security (DHS) officials failed to follow the president’s plan, “there will be consequences for this failure — just as there would be consequences if they were in the military and disobeyed an order from the Commander in Chief.” Judge Hanen concluded that Obama’s words “confirm that [the government] has abdicated enforcement.”

Hanen’s second order concerned the “Advisory” that Justice filed on March 3, informing the judge that between November 20, when the president announced his new plan, and February 16, when the injunction was issued, DHS had issued three-year deferrals to more than 100,000 illegal aliens. This irked the judge because the attorneys had assured him — both in court and in written pleadings — that no part of the president’s plan would be implemented until late February. In the Advisory, DOJ did not admit that it had misled the court. Rather, it said it was just trying to clear up any “confusion” that might have occurred. Judge Hanen clearly was not convinced.

An infuriated Hanen said: “This Court expects all parties, including the Government of the United States, to act in a forthright manner and not hide behind deceptive representations and half-truths. That is why, whatever the motive for the Government’s actions in this matter, the Court is extremely troubled by the multiple representations made by the Government’s counsel — both in writing and orally — that no action would be taken#…#until February 18, 2015.”

Hanen was also angry that DOJ lawyers delayed telling him about this problem. They told Judge Hanen they were unaware there was a problem until they read his February 16 injunction order. Hanen said that the Justice Department’s claim that it took “prompt” remedial action to inform the court was “belied by the facts,” since they waited two weeks after that to file the “Advisory.”

In fact, Hanen implied that the government may have deliberately delayed telling him about this issue. When DOJ filed its “Motion to Stay” on February 23, the motion made no mention of this problem. Instead, according to Hanen, “mysteriously, what was included” in DOJ’s motion was a request that Judge Hanen issue a decision on the motion within two days. If Hanen had done what the government requested, then the court “would have ruled without the Court or the States knowing that the Government had granted 108,081 applications#…#despite its multiple representations to the contrary.” Yet the DOJ lawyers “stood silent. Even worse, they urged this Court to rule before disclosing that the Government had already issued 108,081 three-year renewals#…#despite their statement to the contrary.

Hanen cites the same provision of the ABA Model Rules of Professional Conduct that I discussed in my March 17 article here — the provision that requires complete “Candor toward the Tribunal.” Hanen acknowledges that “fabrications, misstatements, half-truths, artful omissions, and the failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life,” but says that in a court of law, “when an attorney knows that both the Court and the other side are relying on complete frankness, such conduct is unacceptable.” This is one of the most damning criticisms I have ever read about the behavior of Justice Department lawyers.

Judge Hanen considered striking the government’s pleadings. He ultimately decided not to, because that would have ended the case, giving a victory to the 26 states that brought the suit to stop Mr. Obama’s unilateral amnesty program. Because the issues at stake “have national significance and deserve to be fully considered on the merits,” Hanen concluded, “the ends of justice would not be served by striking pleadings in this case.” He warned DOJ, though, that his decision did not leave him “impotent to fashion an appropriate remedy” for the government’s misconduct.

Hanen then ordered DOJ to produce, by April 21, every draft of the “Advisory,” including all “metadata” that would show when each draft was prepared, and who prepared or edited it. He also ordered DOJ to produce the names of everyone who knew about the “Advisory” or the granting of the 100,000 deferrals. In light of Hillary Clinton’s deletion of all of her e-mails, it is also interesting that Hanen ordered that no e-mails, computer records, hard drives, or servers that have any information about this issue be “destroyed or erased.” Judge Hanen obviously wants to find out who knew about the misrepresentations made to the court. He may very well consider further sanctions against whoever was involved in this deception once he gets that information.

The main battle over the president’s immigration plan and the injunction will now be in the Fifth Circuit. But Hanen’s findings against the government, particularly the misconduct of DOJ lawyers, will not help the administration’s case.

 - Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

Originally appeared in the National Review Online