Clearing the way for the Supreme Court to rule on immigration policy without a distraction, a federal trial judge in Texas on Tuesday postponed a sweeping order that had added controversial new requirements for the federal government in carrying out the policy. U.S. District Judge Andrew S. Hanen of Brownsville delayed all facets of his broad May 19 order until August 22, when he will hold a status conference.
Some lawyers involved in challenges to the Hanen ruling had vowed to go to the Supreme Court promptly if the judge or a federal appeals court had not acted to delay a key part of his order dealing with private and personal information about some 50,000 young immigrants. Such a maneuver would have reached the Court in the midst of its continuing deliberations on how to decide the case of United States v. Texas, a challenge to the Obama administration’s immigration initiative.
In his two-paragraph order putting off all facets of the case before him (including a trial) for more than two months, Judge Hanen gave no explanation. However, lawyers representing some of the challengers to his order had argued in their filings that he had no authority to add any new requirements while the case was under review by the Supreme Court.
The judge did not acknowledge that argument about his authority, nor did he comment directly on the demand by the Justice Department and by attorneys for others involved in the case that he had to act swiftly on the delay request because of a deadline he had imposed for this Friday on delivery of a massive volume of detail about the personal lives of undocumented immigrants.
The practical result of his action, however, was to step out of the way of the Supreme Court’s review, since the Justices are expected to decide the underlying case by the end of June. Another practical effect is that the Justice Department and the Department of Homeland Security will not have to hand over information about young immigrants this week, and the Justice Department will not have to start implementing a series of ethics management requirements that he had imposed on that department.
All facets of the judge’s May 19 order were aimed at disciplining the federal government for what the judge found was ethical misconduct before him by two Justice Department lawyers, whom he found had misled him about when parts of the new immigration policy would be implemented. He also concluded that sanctions were necessary to protect the interests of the twenty-six states suing the federal government over the policy; he found that the states, too, had been misled and had been harmed by the alleged misconduct.
Before the judge holds a status conference on the case on August 22, he told the Justice Department to file by July 31 any points they wanted to make about “an appropriate sanction for the misrepresentations” before him by department lawyers. The department, he added, could also file by then any evidence it has “concerning the misrepresentations.”
Those final points in his order appeared to be in response to claims that the Justice Department had made, in asking him to delay his order, that he did not have the authority to impose any sanctions without first giving the department a chance to comment on what punishment he would consider, and the factual basis for any such sanctions. It was not clear whether he would change the details of his order after hearing further from the department in July.
While the twenty-six states have remained largely on the sidelines as the Justice Department and lawyers for undocumented immigrants and for immigrants rights groups sought in recent weeks to undo or at least delay the judge’s May 19 order, the Justice Department had disclosed on Monday that the states had indicated that they did not oppose a delay of the part of the order on the delivery to Hanen’s court of the private information about young immigrants affected by the policy.
The states, according to a Justice Department court filing Monday, had indicated that they did not oppose a postponement of that part of the order until thirty days after the Supreme Court had decided the underlying case.
With the judge’s stay order, the controversy over the administration policy returned to where it was before May 19, with everything focused on the Supreme Court’s review.
One argument that the Justice Department has made to the Supreme Court is that the twenty-six states did not have any legal right to sue to challenge the new immigration policy (which has been on hold under an February 2015 order by Judge Hanen). The states have not shown that they would be injured in any real way by the policy of delaying deportation of undocumented immigrants, the department has contended.
If the Supreme Court would agree that the states did lack “standing” to sue, that would mean that there would be no basis for Judge Hanen to order the sharing of personal information about 50,000 immigrants who have received some benefits of the new policy. It is unclear what the effect of such a ruling would have on the ethics controversy between the judge and the Justice Department.