Today I took a quick detour to Brownsville, Texas for the latest hearing in United States v. Texas (although I did not cross the border as planned). After following this case so closely over the past two years, I wanted to finally see Judge Hanen in action. This hearing was originally put on the calendar as a status conference, but in light of the sanctions order, and the currently pending petition for rehearing before the Court.

First, all of the parties agreed that while the petition for rehearing was pending, under Supreme Court Rule 44, Judge Hanen should put the case on hold, and not proceed to summary judgment (the logical step after the preliminary injunction stage).  Judge Hanen ruled that the case is stayed, and the parties are directed to file briefs 30 days after the Court resolves the pending motion.

Second, subsequent to Judge Hanen’s sanctions order (which I discussed here), DOJ filed a number of affidavits under seal from high-ranking officials in the Obama administration, explaining how the three-year renewals were granted. Judge Hanen repeated several times that he requested such affidavits a year ago, but were only provided after the sanctions order was issued. Hanen asked, several times, whether he should even consider these new affidavits. He compared it to a losing party in a trial asking to put on witnesses after the verdict. Texas took no position on this issue because they had only seen redacted portions of the declarations.

Third, in Judge Hanen’s sanctions order, he directed the federal government to file under seal the personally identifiable information of those who were erroneously granted three-year extensions. The government and intervenors objected. Judge Hanen suggested that rather than filing the information under seal, the government lodges the list with the Justice Department. The government lawyer said the idea was “intriguing” and would confer with his clients and get back to the court today.

Fourth, the longest part of the hearing was the government’s effusive apology. I transcribed it as best as I could, although I’m sure I missed a few words here and there:

“We are sorry for the mistakes we made that led to this situation. We are sorry for leading this court to believe that it has been deceived. We are sorry for the court’s time and energy this matter has consumed. We hope these sworn declarations we have submitted have provided the assurance the court was looking for. None of what has occurred was ever intentional on the part of any attorneys. We are extraordinarily grateful the court extended the opportunity to provide that evidence. We think it shows quite powerfully in detail, over 100 pages in sworn testimony that demonstrates that there was never any intent to deceive the court about three year deferred action, or conceal that action. So we think the just course is the court can consider that evidence, and come to the just result, to which that evidence lads, which is the court’s May 19 sanctions order be withdrawn. Regardless of how this court rules, Mr. Mizer, head of the Civil Division, has directed course of supplemental training for all civil division attorneys—approximately 1,000—including myself.”

From my vantage point, the apology seemed absolutely genuine and sincere. Judge Hanen was grateful for the apology. He replied, “I greatly appreciate he has done that. I think it’s a worthy step.”  A step, but not a complete resolution of the issue.

After further pressing from Judge Hanen, the lawyer cited the “fog of war” and the tough time pressures of the case as to why DOJ made false statements to the court. Judge Hanen’s followup question, in my mind, was not completely answered. The court asked that if the government thought the three-year extensions were lawful, why did they disclose it. The lawyer cited the “simultaneity of several factors.” Judge Hanen did not seem completely satisfied.

Fifth, Judge Hanen then asked a series of questions about what training DOJ lawyers take in the rules of ethics in the jurisdiction they practice in. For example, are lawyers expected to read the Texas Rules of Ethics before arguing a case in a Texas court. “How do you know if you are complying with the rules of ethics in Texas,” Hanen asked, “if you’ve never read it?” The DOJ lawyers candidly said he did not know the answer to the question, but added “the transcript of this hearing will be widely read in Department, and will be taken note of.” I thought he handled that question about as well as an advocate could.

Finally–and perhaps most importantly–the lawyer from the Texas Attorney General’s office raised the issue of the lawsuit recently filed in the Eastern District of New York by the National Immigration Law Center, Yale Law School, and several other groups. The plaintiff is an individual who received the three-year DACA extension during the brief time between Judge Hanen’s injunction and when the government disclosed it (the so called “gap period”). The plaintiff asserts that he is entitled to the three year extension because Judge Hanen’s injunction is not valid in New York. The 5th Circuit ruled that the nationwide injunction was valid, so this case is a (naked) collateral attack on Judge Hanen’s nationwide injunction–and a very crafty one at that.

I will write far more about this case in due time, but there are two things for you to look out for. First, whether the Justice Department challenges the suit (as it should) by asserting the individual has no standing to assert discretionary relief, and second, whether the Justice Department argues that Judge Hanen’s injunction is currently in force in New York. Institutionally, it will be very difficult for the government to abandon the first standing argument, because it would have wide-ranging implications for the government’s general defense that parties cannot litigate discretionary relief in court. Further, allowing this suit to go forward weakens their broader argument that DACA and DAPA are entirely discretionary, and there is no substantive right to this administrative relief. If would-be recipients can petition for a grant of relief, than it is not discretionary.

The second argument is far more significant. The 5th Circuit ruled that the nationwide injunction was valid. The Supreme Court’s 4-4 decision did not disturb that. It would be breathtaking for DOJ to argue that a uniform immigration policy can be applied differently in different states. To say nothing of the obvious spillover effects–DACA beneficiaries are free to travel to Texas (even if the Plaintiff in Brooklyn disclaimed any intent)–I can see a situation where the enjoined federal officials could be held in contempt of court by the Southern District of Texas if they permit a three-year DACA grant in Brooklyn. Granting the three-year authorizations would be flouting the injunction that is still in effect–notwithstanding the stay imposed by SCOTUS Rule 44. Judge Hanen retains jurisdiction to enforce the injunction.

This case is from over. Stay tuned.