BY: Byron York April 8, 2015 | 8:21 am
A federal judge has issued a scathing rebuke to lawyers for the Obama administration in a case involving the president’s unilateral immigration action. In an order issued Tuesday night, U.S. District Judge Andrew Hanen, who had put a temporary hold on the action, not only refused to lift the hold — he also came very near to accusing administration lawyers of flat-out lying to him.
The administration’s assertions in the immigration case have been “misleading,” “troublesome,” and “belied by the facts,” Hanen wrote. “Any number of federal judges, given this misconduct, would consider striking the government’s pleadings.” Doing so would effectively end the case altogether, and Hanen wrote that he had decided not to take that action because the issues at stake are of great national importance.
The case was brought by the attorneys general of 26 states seeking to stop the president’s decision to grant quasi-legal status and work permits to millions of illegal immigrants. The controversy that angered Judge Hanen involved the timing of the president’s new measures. Administration lawyers told the court that the first part of the president’s action, expansion of DACA, or Deferred Action for Childhood Arrivals, was scheduled to begin Feb. 18, 2015. The second part, known as DAPA, or Deferred Action for Parents of Americans and Lawful Permanent Residents, was scheduled to go into effect in mid-May.
In court arguments, Hanen specifically asked the administration lawyers whether the Department of Homeland Security would begin implementing DACA before Feb. 18. They said no. Hanen therefore issued an injunction temporarily stopping DACA on Feb. 16, two days before it was scheduled to go into effect. At that point, Hanen thought he had stopped things while he considered the larger issues of the lawsuit, which focus on the constitutionality of Obama’s action.
The judge was stunned when, on March 3, administration lawyers filed a “Defendant’s Advisory” admitting that the administration had begun implementing the expanded DACA program back in November, and had in fact granted new protections and work permits to “approximately 100,000 people” by the time administration lawyers told the judge nothing was happening.
An angry Hanen ordered the government to explain why he should not punish the administration for misleading him. The two sides argued the issue in a hearing last month, and now Hanen has issued an order refusing to lift the stay and declaring the administration’s actions “misleading.”
In the order, Hanen quotes extensively from the January hearing in which administration lawyers told him the Department of Homeland Security had not yet begun to implement DACA — only to file a “clarification” with the court weeks later. Hanen’s unhappiness is obvious:
Clearly, if a “clarification” on any ongoing actions taken by the DHS was ever necessary, which of course it was, [the January hearing] was the time. Silence here, and then later during the scheduling discussion, was misleading. Whether by ignorance, omission, purposeful misdirection, or because they were misled by their clients, the attorneys for the Government misrepresented the facts. The Court, relying on counsels’ representations, not only gave the Government extra time for its briefing, but it also took February 18, 2015, as the agreed-upon date by which to rule on the motion for a temporary injunction.
Hanen’s anger is apparent throughout the order. One government assertion “is belied by the facts.” A government explanation is “troublesome.” Omissions from the government’s filings are “mysterious.” And then this:
Section 3.3 of the ABA Model Rules of Professional Conduct and Section 3.03 of the Texas Disciplinary Rules of Professional Conduct…require a lawyer to act with complete candor in his or her dealings with the Court. Under these rules of conduct, a lawyer must be completely truthful and forthright in making representations to the Court. Fabrications, misstatements, half-truths, artful omissions, and the failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life; but in the courtroom, when an attorney knows that both the Court and the other side are relying on complete frankness, such conduct is unacceptable.
“Any number of federal judges, given this misconduct, would consider striking the Government’s pleadings,” Hanen concluded. Hanen said he would be tempted to do the same in this case, were the subject not so important. “The issues at stake here have national significance and deserve to be fully considered on the merits by the Fifth Circuit Court of Appeals and, in all probability, the Supreme Court of the United States,” Hanen wrote. Throwing the case out now would “not only penalize those with an interest in the outcome, but would more importantly penalize the country, which needs and deserves a resolution on the merits.”