This column by ACRU Policy Board member Hans von Spakovsky was published July 9, 2015 by National Review.
The Obama administration will be up before the Fifth Circuit Court of Appeals in New Orleans on Friday at 9:00 a.m. for a second round of oral arguments in the immigration lawsuit filed by Texas and 25 other states. Things don’t look good for the government.
Scott Keller, the Texas Solicitor General, will be arguing on behalf of the states that the Fifth Circuit should uphold federal district court Judge Andrew Hanen’s preliminary injunction against President Obama’s immigration amnesty program. The Justice Department can’t be happy about the lineup on the three-judge panel assigned to hear the government’s appeal—two of the judges, Jennifer Walker Elrod and Jerry E. Smith, are the same two judges who ruled against the government on May 26 in its emergency request for a stay of the injunction.
Their May 26, 66-page opinion read almost like a decision on the merits of the injunction, rather than just an opinion on the government’s request for an emergency stay while the appeal was pending. They ruled against the government because they concluded that it was “unlikely to succeed on the merits of its appeal on the injunction.” There have been no substantive developments since May 26 that are likely to change their opinion. The judge who dissented from that May 26 opinion, Obama-appointee Stephen Higginson, has been replaced by Carolyn King, a Carter appointee.
But there is other news related to this case that may cause a number of Obama political appointees to make travel arrangements to Brownsville, Texas, where the federal district court is located that issued the injunction now before the Fifth Circuit. Judge Andrew Hanen issued an order on July 7 reflecting his clear anger at the refusal of the administration to rectify its mistakes. He gave the parties until July 31 to file a status report with the court outlining the resolution of the government’s admission that it had granted benefits to 108,800 illegal aliens at the same time that it was telling Judge Hanen that it was taking no action prior to the issuance of Judge Hanen’s injunction in mid-February.
But Hanen was obviously also perturbed about the failure of the administration to resolve “the issue as to the approximately 2,000 individuals that were given various benefits in violation of this Court’s order after the injunction was issued.” The government first told the judge on May 7 that it had “inadvertently” violated his injunction by sending out three-year work authorizations to 2,000 illegal aliens, “violations which have not yet been fixed” according to Hanen:
This Court has expressed its willingness to believe that these actions were accidental and not done purposefully to violate this Court’s order. Nevertheless, it is shocked and surprised at the cavalier attitude the Government has taken with regard to its ‘efforts’ to rectify this situation.
The administration promised Judge Hanen that it would take “immediate steps” to remedy this mistake. Yet two month later it has still done nothing to get these unlawful work permits withdrawn. Judge Hanen found that behavior “unacceptable” and “as far as the Government’s attorneys are concerned, completely unprofessional.”
“With that in mind,” Hanen set another hearing date for August 19, which all of the individual defendants “must attend and be prepared to show why he or she should not be held in contempt of Court.” This means that all of President Obama’s top appointees at the Department of Homeland Security named as defendants in the lawsuit have to appear in Brownsville on Aug. 19 unless the government assures the court in the July 31 status report that it has remedied this situation and “comes into compliance” with the injunction. The individual defendants are:
- Jeh Johnson, Secretary of DHS;
- R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection;
- Ronald D. Vitiello, Deputy Chief, U.S. Border Patrol, U.S. Customs and Border Protection;
- Sara R. Saldana, Director, U.S. Immigration and Customs Enforcement; and
- Leon Rodriguez, Director, U.S. Citizenship and Immigration Service.
In addition to the defendants, the government is ordered to “bring all relevant witnesses on this topic as the Court will not continue this matter to a later date.” If Judge Hanen “is satisfied with the Government’s representations” in that status report, it will cancel the August 19 hearing and the mandatory appearances by Johnson, Kerlikowske, Vitiello, Saldana and Rodriguez.
But if he is not satisfied, in a dire warning to them and the Government, “the Court intends to utilize all available powers to compel compliance” with its injunction:
Neither side should interpret this Court’s personal preference to not sanction lawyers or parties as an indication that it will merely acquiesce to a party’s unlawful conduct.