The case of Texas v. United States has taken more twists and turns than I could have ever anticipated when I first started following it in November 2014. (Part of me wants to write another book about this case, but one at a time). The latest development left me speechless! I summarize the events in National Review Online, but frankly, this piece cannot do justice to what happened. Here is the introduction:
In December 2014, 26 states challenged the legality of President Obama’s executive action on immigration. Led by Texas, the states sought to immediately halt the federal government’s plans to defer the deportations of millions of aliens. Relax, the Justice Department told Judge Andrew Hanen in Brownsville, Texas. We won’t implement this program till February, the government assured the states. On that representation, Texas did not seek a temporary restraining order, and the court allowed the proceedings to stretch into February. Except it wasn’t true. By February, the Department of Homeland Security (DHS) had already granted relief to 100,000 aliens. Even worse, the Justice Department lawyers who repeatedly assured the court that nothing would be done until February knew that DHS was already granting such extraordinary relief. In an unprecedented order, Judge Hanen has now placed the Justice Department under his supervision to ensure that they act ethically. Texas had charged that DHS’s executive actions were in bad faith; now, Judge Hanen has charged that the Justice Department’s defense of those actions was also in “bad faith.” The Obama administration is certain to appeal this rebuke of its stunning actions. Even if the remedy should ultimately be modified, the undisputed facts, as Judge Hanen methodically demonstrated, show that their “conduct is certainly not worthy of any department whose name includes the word ‘Justice.’”
The long-and-short of it is that Judge Hanen has effectively placed under federal supervision Main Justice, to ensure any attorneys that practice in the 26 states that brought this suit attend an annual live ethics course on candor to the court.
First, Judge Hanen sent back to school all of the lawyers in Main Justice who litigate in the 26 states that challenged DAPA. They are required to take a three-hour legal-ethics case on “candor to the court.” And this has to be a real class taught by a “recognized ethics expert who is unaffiliated with the Justice Department,” not a “self-study or online study” course. Second, to ensure compliance, the Justice Department must appoint a person to certify annually that all attorneys who appear in the 26 states have completed the ethics course. This order will remain in effect until December 31, 2021.
Where the opinion jumps the shark, however, is that Judge Hanen requests the names and contact information all of the individuals who received expanded DAPA.
There is a fifth remedy that I frankly do not understand. The court ordered the government to “file a list of each of the individuals in each of the Plaintiff States given benefits” under DACA, including their names, addresses, and other personally identifying information. These records would remain sealed, but the states would be able to access them on a “showing by a state of actual or imminent damage that could be minimized or prevented by release of the information to one of the Plaintiff States.” This portion of the order is somewhat vague, but it would seem that Judge Hanen would allow the release of the identities of the aliens who benefited from expanded DACA if it would result in danger to the state’s interest. I am struggling to think of what would satisfy as good cause for release of this information, or why the court would even want this information. This remedy is inappropriate, and should be struck.
I suppose this information will help Texas and the other states revoke driver’s licenses, or other benefits awarded due to their grant of lawful presence. This is bizarre, and detracts from the otherwise important allegations made in the opinion.
I close with a suggestions–rather than scrambling to the 5th Circuit, Attorney General Lynch should address the matter directly to Judge Hanen in Brownsville.
At this very moment, lawyers in the Robert F. Kennedy Building on Constitution Avenue are frantically drafting an emergency appeal, or perhaps even a motion to disqualify Judge Hanen. Let me propose something different to diffuse the situation. Attorney General Loretta Lynch should personally submit a motion for reconsideration, and ask to appear before Judge Hanen in Brownsville to explain the situation. This sort of bold leadership would elevate to the highest ranks of government how important ethics and candor are, and signal to the court that this issue is being taken seriously. This will not undo the damage, but it will begin the process of restoring the justice in her Department.
DOJ screwed up here. They can attempt to rationalize it however they want, but the Holder Justice Department misled the court on a major separation of powers dispute. The ethics of the Justice Department transcend this case and this judge.