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3 Reasons Why Judge Hanen’s Opinion is Entirely Political

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As we noted earlier, we are confident that Judge Andrew Hanen’s temporary injunction blocking immigration executive action programs from going into effect will not stand.  As it moves up the judicial ladder, serious jurists will apply the law, decide that it is well within established legal authority and historical precedent, and the programs will be fully implemented.  But before moving past Judge Hanen, it’s worth examining who he is and where his sentiments lie on the subject.  Examining this specific ruling, as well as Judge Hanen’s track record and past comments on immigrants and immigration, makes it clear that the decision is grounded in politics and not the law.  

Here are three reasons why Judge Hanen’s opinion is entirely political:

  • The Plaintiffs “Judge-Shopped” for A Friendly Court and Settled on Hanen: The plaintiffs, mostly GOP governors and attorneys general, forum shopped to find an anti-immigrant judge – and Judge Hanen was clearly their guy.  The New York Times noted, Hanen is, ”an outspoken critic of the administration on immigration policy.”  Even the Washington Times, a conservative newspaper, assessed that, “The states challenging President Obama’s deportation amnesty have already won the first round in court after the case landed in the lap of Judge Andrew S. Hanen.”  As a result, Hanen’s ruling is not surprising (and should be assessed alongside earlier legal rulings in other courts that sided with the Obama Administration on immigration law).

    Far from an impartial observer on immigration matters, the George W. Bush appointee Hanen has a track record of outspoken and hardline immigration views.  As Think Progress recaps, “in one opinion, Hanen labeled the government’s decision to allow an undocumented mother to be united with her child without facing criminal charges as a ‘dangerous course of action.’”  As America’s Voice Education Fund has highlighted, after a defendant pled guilty and the outcome of the case before him had been decided, Judge Hanen felt “compelled” to also write a 4-page screed opining about federal immigration policy.  In another case, Judge Hanen issued a 24-page opinion criticizing the government’s implementation of the Convention Against Torture while conceding he had “no jurisdiction” over it.

  • The Lawsuit is a Centerpiece of the Strategy Dreamed up by Anti-Immigration Restrictionists: There are clear signs that this lawsuit was dreamt up by Kris Kobach, the notorious anti-immigrant lawyer and Kansas Secretary of State who authored Arizona’s SB 1070 and advised Mitt Romney to run on the platform of “self-deportation.”  Kobach has a long history of losing, when it comes to immigration cases and national elections, so it’s no wonder that Texas Governor Abbott hasn’t trumpeted his role.  A November article in the Washington Post highlighted that Kobach was drafting a lawsuit and that Texas was interested in being a plaintiff.  In early December, Kobach said to “watch the news in the next month or so and you’ll see the cases being filed […] the pieces are being put into place to bring litigation against the Obama administration in various courts around the country.”  The case is also the centerpiece of the strategy from nativist groups Kobach has worked with, such as the Immigration Reform Law Institute.  What’s more, Kobach ally and notorious Maricopa County Sheriff Joe Arpaio, who lost his own case in December challenging the same immigration actions, is an amicus in this case.  While Kobach is not a named counsel in the litigation, his fingerprints are all over it.
  • Hanen’s Opinion is Full of Rightwing Restrictionist Canards Masquerading as “Facts”: Hanen repeatedly uses the languages of restrictionists, throwing around terms like “illegal alien child,” “amnesty,” and “invaders” throughout his opinion.  The Judge drums up concern over terrorism and crime as a means to criticize the Administration for failing to enforce immigration laws (see Footnote 3), despite the fact that the policies in question are designed to focus limited resources on these same bad actors.  Hanen says that the states’ assertion “that the Government has abandoned its duty to enforce the law . . . cannot be disputed,” when in fact this is obviously false given the Government’s record level of deportations.

The list could go on and on—as long as Hanen’s 123-page opinion.  But we’ll stop there, and let the higher courts figure out a way to undo this mess.