Even as the 5th Circuit Court of Appeals considers whether to grant a stay, Judge Hanen continues to move the case along down in Brownsville. The latest order, issued today, offers supplemental authority for its previous denial of a stay.
First, it cites congressional testimony by Director of Immigration and Customs Enforcement, Sarah Saldaña, who confirmed the President’s remarks that any officers who try to exercise discretion, and do not follow the dictates of the 2014 DAPA memorandum will be disciplined.
The Court supplements its Order solely to acknowledge the existence of congressional testimony that confirms the President’s statements. The Director of Immigration and Customs Enforcement, Sarah Saldaña, testified before the House Judiciary Committee on April 14, 2015. Her testimony reiterated that any officer or agent who did not follow the dictates of the 2014 DHS Directive would face the entire gamut of possible employee sanctions, including termination.1 While this Court had no reason to doubt President Obama’s statements, and while the Government has assured the Court that it can rely on what the President says, the Court issues this Supplemental Order to denote that the President’s statements have now been reaffirmed under oath by the very person in charge of immigration enforcement.
The court notes in a footnote that this further suggests officers have no discretion:
This testimony is also relevant to other issues in this case, including the fact that it confirms the evidence, already found by this Court to be probative, that DHS employees have no real discretion to exercise in this area.
Further, the court augments its abdication analysis, drawing a tighter link between DAPA and the facts in Adams v. Richardson, the D.C. Circuit case relied on by the Court in Heckler v. Cheney:
Just like HEW giving federal funds to those violating the civil rights laws in Adams, the DHS in this case is giving a variety of rewards to individuals violating the country’s immigration laws. This general policy of affirmatively awarding benefits is not merely an exercise of prosecutorial discretion. The Government has announced, and has now confirmed under oath, that it is pursuing a policy of mandatory non-compliance (with the INA), and that any agent who seeks to enforce the duly-enacted immigration laws will face sanctions―which could include the loss of his or her job.3 If the solicitation of voluntary compliance (questioned by taxpayers who are rarely accorded standing) equates to abdication, certainly mandatory non-compliance by the Government (questioned by twenty-six states) does as well.