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Published March 31, 2016; updated August 6, 2018
This Wednesday, August 8, the Deferred Action for Childhood Arrivals (DACA) program will be back in the courts, and, this time, Texas Judge Andrew Hanen and well-known anti-immigrant zealot, will decide the program’s fate. Texas Attorney General Ken Paxton spearheaded the approach to Hanen’s court. Why? To get the case in front of the judge who successfully blocked President Obama’s decision to expand DACA and extend relief to parents (DAPA) as a means of doing the DOJ’s bidding to get DACA further tied up in the court system in the short run in hopes of ending it in the Supreme Court.
On March 28th, lawyers for the 26 Republican Governors and Attorneys General, led by the State of Texas and its Attorney General Ken Paxton, filed their response brief in the lawsuit they initiated in December of 2014 to stop President Obama’s executive actions. David Leopold did an analysis of that brief, noting, “Like everything else about this case, the brief is politically motivated and filled with confusion and obfuscation.”
But misleading the Supreme Court is hardly the brainchild of the Texas lawyers. It started with U.S. District Judge Andrew Hanen, a sympathetic jurist whom the GOP plaintiffs sought out to hear their grievance against DAPA and DACA+. Hanen cynically took advantage of the confusing and complicated nature of immigration law and hinged a legally sloppy order blocking executive immigration guidance on the fallacy that the temporary deportation deferrals unlawfully bestowed upon undocumented immigrants what he termed “lawful presence status.” Hanen’s misleading and legally unsupported concoction was later refined and repackaged by the 5th circuit appeals court as “lawful presence.” Never mind that no such concepts exist in the law in the manner that Hanen (and later the 5th circuit) claimed they did.
And so began a shamelessly political grievance, cleverly packaged by GOP politicians as a legal complaint. In fact, the very first decision the Texas Attorney General’s office made in the case proves that point. Instead of filing the lawsuit in Austin or Washington DC (which even the infamous Sheriff Joe Arpaio did), the Republican politicians deposited the case in the courtroom of Andrew Hanen who’d earned his anti-Obama reputation by gratuitously excoriating the administration in unrelated criminal cases because he didn’t agree with the President’s immigration policies.
As expected Hanen dutifully blocked the President’s executive actions hours before they were set to begin going into effect. The administration had little choice but to appeal Hanen’s order to the 5th circuit appeals court which oversees Texas and which is considered by many to be the most conservative court in the land. To no one’s surprise, the appeals court affirmed Hanen’s ruling.
Next month, Hanen’s order falls into the lap of Chief Justice John Roberts. How the Chief Justice resolves U.S. v. Texas will say a lot about his stated commitment to keep political battles out of the federal courts. And it will tell us whether the Roberts court will allow the judiciary to descend into political chaos.
In February of 2015, America’s Voice issued a report on Hanen titled, “A Coordinated Attack: Judge Hanen and the Nativist Lawsuit Against DAPA and DACA”:
Judge Hanen Is the Ideal Judge for Immigration Nativists: The Judge has a history of opining well beyond the scope of his jurisdiction, and an anti-immigration bent. Clearly, the plaintiffs filed their suit in Brownsville for one reason—a friendly judge.
In one case, after a defendant pled guilty and the “outcome was no longer a pending question,” Judge Hanen felt “compelled” to write a 4-page opinion criticizing federal immigration policy, without ordering anything involving the defendant (Source: U.S. v. Cabrera,711 F.Supp.2d 736 (S.D. Tex. May 4, 2010)).
In another case, when a Salvadoran criminal defendant who received Convention Against Torture (CAT) protection against deportation applied to Judge Hanen to relocate within the United States, a routine matter, Judge Hanen issued a 24-page opinion criticizing the US’ implementation of CAT, while conceding he had “no jurisdiction” over the policy (Source: U.S. v. Ramirez, No. 07-cr-041, 2014 WL 3843853 (S.D.Tex. Aug. 1, 2014)).
The Washington Times’ Stephen Dinan recently declared, ‘the states challenging President Obama’s deportation amnesty have already won the first round in court’ when reporting that Judge Hanen was assigned the case.
As was clear from Hanen’s rulings, he was unabashed about showing his animus towards the Obama administration and immigrants. So, the Texas AG knew what they’d get in Hanen — a Judge who was blatantly anti-immigrant. And, they weren’t the only ones. Orly Taitz, did too. Notorious as the “Birther Queen” who launched and instigated the racist attack on President Obama’s citizenship, Taitz was also filing anti-immigrant lawsuits back in 2014. And, she knew exactly where to go: Judge Hanen’s court. The OC Weekly reported on Taitz and her fondness for Hanen:
[The] Queen of the Birfers may have tipped off in a letter to the office of vehemently anti-immigrant Rep. Dana Rohrabacher (R-Huntington Beach) that she “shopped” for a Brownsville jurist most sensitive to her cause.
U.S. District Court Judge Andrew S. Hanen earlier this month set a Wednesday hearing for Taitz’s lawsuit, which seeks to have the undocumented deported immediately or quarantined for two months on grounds they rob American citizens of jobs, wages and benefits and expose them to crime and epidemics of infectious diseases, including at least one Taitz claims to have contracted while performing dental work on an illegal immigrant.
On OrlyTaitzEsq.com, Taitz posted a letter to Rohrabacher’s Executive Assistant Kathleen Staunton that announced Hanen set the hearing date and urged that the news be spread to other like-minded Members of Congress.
At the Daily Kos Kerry Eleveld examined some of Taitz’s filings and why she needed a Judge who shared her world view:
Taitz needed to find a sympathetic judge because, as one might expect, her lawsuit was a piece of work. In her initial complaint, filed July 14, 2014, Taitz accuses the federal government of “trafficking illegal aliens” and seeks either “an emergency immediate turnaround and deportation” of the children or a two-month quarantine of them in a FEMA facility. At the time, the government was trying to find a humane and legal way of absorbing the influx of thousands of refugee children from Central America.
After Judge Hanen ordered the U.S. government to explain why he shouldn’t grant Taitz’s request, she was ecstatic.
As OC Weekly noted, Taitz shared her enthusiasm for Hanen in a letter to members of Congress, which she posted on her website, “Judge Hanen is a judge who previously excoriated the US government for acting as human smugglers.”
In addition, the case to which Eleveld refers, Taitz v. Johnson, et. al., (Docket Number 1:14-cv-00119) is still proceeding in Hanen’s court. That’s the one on “trafficking illegal aliens.” Her latest filing, dated March 16, 2016, makes the ludicrous claim that the Obama administration is engaged in a nefarious ruse designed to expose the American people to dangerous diseases:
Plaintiff is greatly concerned that by the end of the Obama administration all of the infectious diseases will be reclassified as diseases of no public significance, including TB and Ebola.
At first blush, those policies are totally unfathomable.
That’s fairly standard language (and reasoning) from the filings of Taitz in Hanen’s court – and what’s unfathomable is that her case remains pending before him. Taitz has also attempted to intervene in United States v. Texas and Hanen has taken her request under advisement, according to the case filings.
Hanen’s anti-immigrant record did not go unnoticed outside of Brownsville. The New York Times Editorial pointed it out on Jan. 20, 2015:
The first thing to know about the lawsuit brought by two dozen states to block President Obama’s executive actions on immigration is that it is a meritless screed wrapped in flimsy legal cloth and deposited on the doorstep of a federal district judge in Brownsville, Tex.
The second thing to know is that the judge, Andrew Hanen, may well look kindly on the suit. He made news in 2013 with a politically charged ruling accusing the Obama administration of criminally conspiring with Mexican drug cartels to smuggle children over the border (he really said that), which is surely why the plaintiffs like their chances.
And, the plaintiffs did like their chances. For comparison, Arpaio’s case was quickly dismissed for lack of standing shortly after it was argued, back in December of 2014: “‘The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury — not to engage in policymaking better left to the political branches,’ U.S. District Judge Beryl Howell wrote in an opinion.”
That should have been the same outcome for Texas v. U.S. But, Hanen has been more than happy to engage in both policymaking and politics. So it was not unexpected when Hanen issued a nationwide injunction against DAPA and expanded DACA on February 17, 2015. His 123 page order read like vintage Hanen. As Frank Wilkinson at Bloomberg View, wrote:
Altogether, the [Texas] complaint reads as if it were cobbled together on the sofa of “Fox & Friends.” Based on the avalanche of ill consequences envisioned by Texas, however, the judge found that the state had standing to sue. So Hanen’s injunction has halted, for now, Obama’s executive action.
After Hanen issued the GOP injunction blocking DAPA and DACA+, The Los Angeles Times also pointed out Hanen’s politically charged record in an article titled, U.S. Judge Andrew Hanen has history of opposing Obama immigration policies:
Many immigrant advocates were not surprised to see a conservative federal judge in south Texas issue an injunction late Monday temporarily blocking President Obama’s program to defer deportation for nearly 5 million immigrants living in the United States illegally.
U.S. District Judge Andrew S. Hanen has developed a reputation as an outspoken judicial critic of the Obama administration’s immigration policies.
“What we’re seeing with this judge is a trend of him advocating for policies that are targeting specifically immigrant communities,” said Cristina Jimenez, New York-based co-founder and managing director of the immigrant advocacy group United We Dream.
Hanen has written that “the court takes no position on immigration reform,” observing that it is “a subject laced with controversy and is a matter of much political debate which is not the province of the judicial branch.” But in rulings he has opined on the enforcement of immigration law.
Hanen’s extra-judicial opining on immigration policy was examined by Law professor Anil Kalhan in a law review article examining the Texas case, Deferred Action, Supervised Enforcement Discretion, and the Rule of Law Basis for Executive Action on Immigration, U.C.L.A. Law Review, 2015. In the introduction, Kalhan notes:
In political terms, these attacks—while legally unfounded, as I explain in this Article—are nevertheless unsurprising, given the toxic politics of immigration. More surprising, however, is the extent to which judicial discourse has closely mirrored the rhetoric and modes of argument that prevail in anti-immigration public discourse. Soon after the announcement, a group of Republican governors filed suit seeking to invalidate the deferred action initiatives. The complaint—which inveighs against the President for “unilaterally suspend[ing] the immigration laws” by “executive fiat”—was filed in Brownsville, Texas, in order to steer its assignment to U.S. District Judge Andrew Hanen, who has for years garnered headlines as a strident critic of the Obama administration’s immigration policies.
Kalhan also states, “Like his earlier immigration-related commentaries, Judge Hanen’s ruling is entirely continuous with the rhetoric and modes of argument that prevail in political discourse, and ultimately amounts to what I describe elsewhere as ‘judicial truthiness.’” This law review is a must-read for anyone who is interested in understand what’s behind the case that’s now before the U.S. Supreme Court. After Kalhan provided a summary of the politically charged, anti-immigrant rhetoric present in many of Hanen’s opinions, he noted:
Given this substantial body of injudicious commentary, reasonable observers could not have been surprised—and indeed, no observers in fact seemed surprised—when Judge Hanen approached Texas v. United States in a comparable manner.
Indeed, no one was surprised, especially the GOP Governors and Attorneys General who wanted Hanen to hear the political dispute they dressed up as a legal claim. This line from Kalhan captures the essence of Judge Hanen:
Like Judge Hanen’s earlier immigration-related opinions, therefore, Texas v. United States reads more like a document written to intervene in political debates than a judicial opinion carefully analyzing legal issues arising from DACA and DAPA.
That’s right. But, that’s not the role of the federal judiciary.
Of course, it was a big plus that Hanen’s court is also in the Fifth Circuit, home of arguably the most conservative appeals court in the country. While the DC circuit appeals court threw out Arpaio’s lawsuit on standing grounds, the Fifth Circuit twice upheld Hanen’s injunction blocking DAPA and DACA+; first by refusing to temporarily lift the injunction pending appeal and then by upholding the injunction on the merits. But the court’s decision was hardly unanimous, Judge Judge Carolyn Dineen King delivered a blistering dissent, emphasizing that the case should have been dismissed outright because it had no place in court:
The policy decisions at issue in this case are best resolved not by judicial fiat, but via the political process. That this case essentially boils down to a policy dispute is underscored not only by the dozens of amicus briefs filed in this case by interested parties across the ideological spectrum—Mayors, Senators, Representatives, and law enforcement officials, among others—but also by the district court’s opinion, which repeatedly expresses frustration that the Secretary is “actively act[ing] to thwart” the immigration laws and “is not just rewriting the laws [but is] creating them from scratch.” The majority’s observation that this suit involves “policy disagreements masquerading as legal claims” is also telling. Whether or not the district court’s characterization of this case is accurate—though the record number of removals in recent years demonstrates that it is not—to the extent some are unhappy with the vigor of DHS’s enforcement efforts, their remedies lie in the political process, not in litigation.
In an interview with Texas Tribune, Scott Keller and Chip Roy, the lawyers arguing for Texas, who used to work for noted anti-immigrant Senators John Cornyn and Ted Cruz, tried to downplay their forum-shopping:
TT: Why was the lawsuit filed in Brownsville? There have been a lot of people who have said that [Governor Greg] Abbott went shopping for a judge who has been on record about how frustrated he is about the illegal immigration situation. Was that a factor?
Roy: To echo what Scott said, we weren’t here in December. It was the previous administration that made that determination. But I’ll just mention that out of the thousands of cases we deal with, rarely when we’re dealing with lawsuits out in Travis County or filed throughout the state in venues that may or may not be favorable, we don’t often get a lot of venue questions about that. But specifically on this, it’s South Texas. It’s not like this was filed in a jurisdiction that has no connection to the issue at hand. This is in the heart of the area where you’re going to feel the real impact. And there was no guarantee they were going to get Hanen.
No guarantee they’d get Hanen, but clearly they wanted him and chances were really good that they’d get him.
Professor Stephen Legomsky, a former general counsel to U.S. Citizenship and Immigration Services (USCIS), pointed to Hanen’s rhetoric in January of 2016, noting “a group of states, led by Texas, found a sympathetic federal judge in Brownsville.” Legomsky continued, “By suing in Brownsville, Texas’s lawyers knew they were likely to land Judge Andrew Hanen, whose earlier vitriolic condemnations of President Obama’s immigration enforcement policies made him an inviting decision-maker. They also knew that the inevitable appeal would have to be filed with the Fifth Circuit, the nation’s most politically conservative federal appeals court.”
On April 18, 2016, the United States Supreme Court will hear arguments in the U.S v. Texas. This will prove a challenge to Chief Justice John Roberts who has made it his mission to avoid litigating “political questions” in the federal courts. He’ll have to decide if the Judge hand-picked by the Texas GOP – and Orly Taitz – should even have jurisdiction to hear the brazenly political dispute that wound up in his court courtesy of the GOP and judge Hanen.
Hanen seems to relish his newfound role as the Joe Arpaio of the federal judiciary. The big question is whether Chief Justice Roberts validates his badge.