UPDATED 9:54 p.m. Judge Hanen on Tuesday evening issued a brief order on the government’s plea for a postponement of his ethics order, setting a hearing for 10 a.m. in a week — on June 7. It is unclear whether that schedule will have any impact on the government’s plan to file an immediate appeal to the Fifth Circuit Court.
Strongly disputing a federal judge’s power to issue a sweeping order to punish the government over ethical issues in the hard-fought case over federal immigration policy, the Obama administration began moving swiftly on Tuesday to block that order. It asked the judge to put the issue on hold, and promised an immediate appeal to the U.S. Court of Appeals for the Fifth Circuit.
As that new challenge moves ahead, the Supreme Court will continue internal discussions over how to decide the legality of the policy, which would defer deportation for up to five million undocumented immigrants. The case is United States v. Texas. That review does not appear likely to have any direct effect on the ethics controversy, which is moving on a separate judicial track.
Saying it “emphatically disagreed” with the order May 19 by U.S. District Judge Andrew S. Hanen of Brownsville, Texas, the Justice Department said the ruling not only was wrong but that it was “made worse by (and perhaps explained by) the absence of the required fair process for the department and its attorneys.” It added that it would use whatever appeal process it needed to try to get the order nullified.
Judge Hanen is the same jurist who, in February of last year, blocked enforcement of the government’s deferred deportation policy at the request of the twenty-six states that had pursued a challenge. That order is still in effect. His May 19 ethics order found that at least two Justice Department lawyers who appeared before him in the case had intentionally acted, in bad faith, to deceive him and the states about when enforcement of one part of the policy would begin.
The department argued on Tuesday that the part of his order forcing the government to hand over personal information about youths who had benefited from one of the changes in policy would affect about 50,000 individuals, and could undermine the confidence of undocumented individuals in communicating in private with the government over their status. It also argued that the broad new ethics mandate issued by the judge requiring Justice Department attorneys to get new ethical training every year for five years could affect some 3,400 attorneys and would cost about $8 million over that period, while interfering seriously with their work on government legal business.
To support its claims about the impact it foresaw, the department filed two sworn statements, from an official in the Department of Homeland Security (found here), and from an official in the Justice Department (found here).
The central focus of the government’s legal memorandum, filed along with the request for a stay, was the claim that Judge Hanen acted unconstitutionally in intruding upon the government’s management of its own employees, and in issuing his broad ethics command without giving the government or the attorneys a chance to dispute his findings and to know what ethical sanctions he would issue before he announced them on May 19.
A judge’s power to protect the processes of a court, the government’s legal memorandum argued, is limited to preserving order and functioning only in that one court. Judge Hanen’s ethics training requirement, however, would affect any of some 3,400 department attorneys who planned to appear in any court, federal or state, in the twenty-six states that had sued over the policy.
The authority to issue sanctions for ethical misconduct, the department’s filing said, is limited to actions to safeguard the proceedings before the specific court, and cannot sweep broadly to other courts where a judge had no power to act. That power, it stressed, “does not extend to policing proceedings in other courts that do not threaten its own judicial authority in the cases before it.”
Complaining not only about the reach of Hanen’s order but also about what it would do to Justice Department operations and conduct of immigration policy, the department said that it would violate the Constitution by intruding upon the department’s own ethical controls over its own employees, and upon the executive branch’s authority to decide what to do with confidential information it gathers about the private rights of individuals during enforcement of official policy.
The department fervently insisted that it closely monitors the ethical conduct of all of its attorneys, and maintains a rigorous internal policy of ethical refreshers each year and of disciplining those who deviate from required ethical standards.
Judge Hanen has the option of acting immediately on the request to postpone his order, or of delaying any action until he gets a response from the twenty-six states. In the Justice Department’s filings Tuesday, it told the judge that the department and lawyers for the states could not agree on the delay request.
The ethics dispute arose after two Washington-based attorneys for the department had told the judge and the states who sued that the new policy announced in November 2014 would not begin to be put into effect in any way until the judge had a chance to decide whether to block enforcement. In fact, as matters turned out, some immigration officials had granted an extra year of postponement to young undocumented immigrants even though the added-year opportunity was also supposed to have been delayed. Judge Hanen was considering the states’ plea to delay the new benefit for the youths along with delay of a broad new program of delayed deportation for adult immigrants.
Most of the benefits of the deferral policy as it applied to youths went into effect in 2012, and the case now in the courts does not question the legality of that earlier order. It was only the expansion of the policy, to give a third year of delay to youths who could qualify to remain in the country, that was at issue before Judge Hanen, along with all aspects of the 2014 program applying to adult immigrants.
The government had discovered that extra-year benefits had been extended to 108,000 youths, but that only about 50,000 of those were living in the twenty-six states who had sued. The Justice Department had said that it understands Judge Hanen’s order to turn over personal information about extra-year beneficiaries to apply only to those 50,000.
One of the issues that the Supreme Court is considering in the case now awaiting a decision is whether the states had any legal right to sue to challenge the 2014 deferral policy. Judge Hanen found that at least one state, Texas, did have a sufficient claim of injury from the new policy as to have “standing” to sue. If the Supreme Court were to overturn that “standing” decision, it would mean that the states’ challenge would end abruptly.
However, the ethics order now being challenged in higher courts by the Justice Department was in response to conduct of attorneys before Judge Hanen, and prior to his decision to block enforcement. It does not appear that ending the case on the merits, as a Supreme Court finding of a lack of standing would do, would have any effect upon whether an ethics violation had occurred in late 2014 and early 2015 in Judge Hanen’s court.