As David Leopold and many legal experts noted early on, it was no surprise when the Republican Governors and Attorneys General from 26 states ultimately settled on Judge Andrew Hanen of Texas when they were looking for a judge sympathetic to their political charade.
Judge Hanen had already been ”an outspoken critic of the administration on immigration policy,” the New York Times noted, even having become a judge of choice for the notorious “Birther Queen” Orly Taitz. So when Hanen ultimately handed down his decision, legal experts derided his decision as reeking of personal politics. “Judge Andrew Hanen so obviously hates both Obama and his immigration actions that no one is going to take his decision seriously,” wrote Kevin Drum of Mother Jones. “It’s a polemic, not a proper court ruling.”
We’ve been excerpting from Leopold’s recent post on Medium, “Yes, United States v. Texas Is Really An Epic Political Battle,” — an important piece providing some key analysis into the very political nature of this lawsuit — and this latest excerpt highlights Professor Anil Kalhan’s review of the case and striking personal bias Judge Hanen’s exhibited throughout his ruling putting a hold on DAPA and expanded DACA:
Law professor Anil Kalhan has written the definitive law review article on this case, Deferred Action, Supervised Enforcement Discretion, and the Rule of Law Basis for Executive Action on Immigration, U.C.L.A. Law Review, 2015. He notes:
Judge Hanen’s ruling in Texas v. United States closely mirrors his impassioned but gratuitous commentaries in several cases attacking the Obama administration’s immigration policies and its policymaking officials. In each instance, Judge Hanen discarded the conventional norms of adjudication and the adversarial process and exhibited an unusually high degree of personal interest, animosity, and emotional involvement in immigration-related questions far afield from the issues actually before the court. These surrounding facts and circumstances might or might not rise to a level that would warrant his disqualification or reassignment on remand….
…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. He writes nonchalantly about “self-deportation” as if that were a noncontroversial, ordinary thing to discuss, and offers provocative commentary on a series of controversial but ultimately tangential immigration-related matters, including the “flood” of unaccompanied minors, the “specter of terrorism,” and the inability of the “powers that be in Washington” to enact immigration reform. To a striking extent, Judge Hanen engages those political debates in personal terms. He repeatedly emphasizes (and distorts) statements by President Obama about the initiatives, including offhand comments in response to informal questions, and treats them as if they had determinative legal significance — even as he acknowledges that the President himself “has not directly instituted any program at issue in this case” and largely disregards the administration’s legal justifications for the initiatives, as opposed to its political motivations.