Ian Millhiser, Editor of Think Progress Justice, has deconstructed the “strange order” issued by Federal District Court Judge Andrew Hanen yesterday. Hanen’s order, a broadside against the Department of Justice, also takes a disturbing turn by ordering the collection of names of recipients of Deferred Action for Childhood Arrivals (DACA.) In a tweet for his piece, Millhiser wrote of Hanen’s action:
This is the single worst act of judicial misconduct I have ever encountered.
While Hanen’s order is extremely unusual, it’s consistent with his brand of anti-immigrant judicial activism. On March 31st, America’s Voice issued a detailed report on Hanen titled, Finding Judge Hanen: How U.S. v. Texas Began, which outlines his anti-immigrant animus and the politics that unfold in his courtroom.
The Supreme Court heard arguments in the case, United States v. Texas, on April 18th, 2016 and has yet to issue its ruling, which is another reason it’s outside of judicial norms for Hanen to take any action at this time, particularly this kind of action.
Millhiser ‘s entire piece, which is excerpted below, can be found here and is well worth a read. It begins:
A federal judge with a history of anti-immigrant sentiment ordered the federal government to turn over the names, addresses and “all available contact information” of over 100,000 immigrants living within the United States. He does so in a strange order that quotes extensively from movie scripts and that alleges a conspiracy of attorneys “somewhere in the halls of the Justice Department whose identities are unknown to this Court.”
It appears to be, as several immigration advocates noted shortly after the order was handed down, an effort to intimidate immigrants who benefit from certain Obama administration programs from participating in those programs, lest their personal information be turned over to people who wish them harm. As Greisa Martinez, Advocacy Director for United We Dream, said in a statement, the judge is “asking for the personal information of young people just to whip up fear” — fear, no doubt, of what could happen if anti-immigrant state officials got their hands on this information. Or if the information became public.
Then, Millhiser debunks the main crux of Hanen’s order, that somehow the Department of Justice misled him:
In a brief filed in Hanen’s court, the Justice Department attorneys offer their version of events. For one thing, if the government was trying to hide the date when DACA beneficiaries started receiving extensions, they did a very poor job of it. The DHS directive explicitly states that the shift from two to three years “shall apply to all first-time applications as well as all applications for renewal effective November 24, 2014,” well before the January 2015 hearing date. Expanded DACA, by contrast, would be implemented “at an unspecified time ‘no later than  days,’” after the issuance of the directive, and DAPA would be implemented “no later than  days” after the directive.
Because the date of the shift from two to three years was stated explicitly in the document at the very heart of this case, while the date when DAPA and expanded DACA would be implemented was left ambiguous, DOJ claims that, when Hanen expressed uncertainty regarding implementation dates, they thought he was only expressing uncertainty regarding dates that were actually uncertain.
Additionally, the Justice Department explains, “the crux” of the plaintiffs’ arguments “was on the effects of the expansion of the deferred action guidelines to include additional categories of aliens,” not on whether immigrants who were already eligible for deferred action would receive it for two or three years — a fact that DOJ suggests led it to believe that they were being asked about the issues that were at the heart of the case
In any event, this case ultimately turns upon the specific state of mind held by certain individuals when they made certain statements, so it is difficult to verify what the Justice Department’s attorneys believed they were being asked to disclose to Judge Hanen. It’s possible that a team of federal litigators, some of whom are quite senior, collectively decided to risk their case, their careers, and their license to practice law by intentionally lying to a judge about a piece of information that was right at the judge’s fingertips.
As Millhiser notes, “at the very least, DOJ’s brief offers a plausible narrative that does not require the reader to assume that the Obama administration chose to staff one of the most important cases of the Obama presidency with a team of idiots.”
Millhiser also raises the serious question about whether or not Hanen should be allowed to proceed with this case:
An open question is whether the Justice Department will file a motion to remove Hanen from the case. Federal law states that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” and appeals courts have, on rare occasions, cited this provision to remove judges from cases where their actions create an “appearance of partiality.”
Ordinarily, attorneys do not file such motions, as such motions are not usually granted and they anger the judge. In this case, however, it does not appear that the Justice Department has anything to lose.
The appearance of partiality in United States v. Texas was obliterated by Judge Hanen yesterday.
For more on Judge Hanen’s immigration bias, see the America’s Voice report: Finding Judge Hanen: How U.S. v. Texas Began.