This column by ACRU Policy Board Member Hans von Spakovsky was published June 2, 2016 by The Daily Signal.
The Justice Department is resisting a judge’s order to provide ethics training for its lawyers and is objecting to turning over to the court the names of illegal aliens who were granted what amounts to administrative amnesty (“deferrals”) in stark violation of an injunction issued by the court.
On May 19, Judge Andrew Hanen of the of the Southern District of Texas issued an order imposing sanctions on the Justice Department and its lawyers for unethical conduct, which included repeatedly lying to him in court.
U.S. v. Texas is the immigration lawsuit filed by 26 states against the Obama administration over its plan to provide deferrals, work permits, and other government benefits to almost 5 million illegal aliens. Hanen issued a preliminary injunction in February 2015 preventing implementation of the plan.
His decision was upheld by the 5th Circuit Court of Appeals and the case is currently before the U.S. Supreme Court.
But Hanen issued his sanction order because of the misbehavior of Justice Department lawyers when the case was before him. He severely rebuked the DOJ for claiming that the president’s plan was not being implemented prior to his issuing his injunction order when the government knew that it was being implemented — to the tune of over 100,000 aliens. When he found out, he ordered the government to reverse its behavior and void these deferrals.
Amongst the sanctions Hanen ordered on May 19 was yearly ethics training for five years for every DOJ lawyer stationed in Washington who appear in any of the courts of the states who filed the lawsuit. He also ordered the Department of Homeland Security to provide him (under seal) with a list of all of the aliens who had been given benefits under the amnesty plan in violation of his injunction.
However, on May 31, the Justice Department filed a motion with Hanen asking him to stay (or suspend) his sanctions order while DOJ appeals his decision to the 5th Circuit. The Justice Department claims in its brief that with regards to the required ethics training, Hanen’s determination that the DOJ’s lawyers engaged in “intentional misrepresentation” was reached “without proper procedural protections” and that there was not “sufficient” evidence of the misrepresentations.
Given the extensive evidence that Hanen cited in his order of the misrepresentations made by the government lawyers, as well as the extensive opportunity he gave the DOJ to present its side in the briefs it filed with the court, the claim that the DOJ was somehow unfairly judged or unable to present its defense is extremely dubious.
The DOJ also claims that the “sanctions imposed exceed the court’s authority.” Given the severity of the violations of the code of professional conduct that govern lawyers, including government lawyers, this is another problematic claim by the department.
Given that the judge could have imposed even more severe sanctions, such as dismissing the defensive pleadings filed by the government (which would have caused them to lose the case) or making the government pay the attorneys’ fees of the states, the sanctions imposed seem almost mild.
Of course, they are highly embarrassing given what they reflect about the behavior of DOJ lawyers. But according to the Justice Department, Hanen is interfering “with the attorney general’s executive authority” in imposing ethics training and the other requirements that Hanen laid out, such as filing a comprehensive plan within 60 days “to prevent this unethical conduct from ever occurring again.” Apparently, that is too much to ask of the attorney general.
The strangest claim made by the Justice Department is that Hanen’s order to produce a state-by-state list of all of the illegal aliens unlawfully granted deferrals would “breach the confidence of these individuals (and of others who submit information to USCIS) in the privacy of such records.”
Not only does the Privacy Act not apply to “non-U.S. persons” (Illegal aliens), but federal law (8 U.S.C. §1373) specifically requires the federal government to provide “citizenship or immigration status” information on any individual in response “to an inquiry by a federal, state, or local government agency.” And this requirement applies “notwithstanding any other provision of federal, state, or local law.”
Thus, states are statutorily entitled to this information and the DOJ’s claim that it is confidential has no basis in the law whatsoever. Of course, this very inconvenient federal provision is not mentioned in the Justice Department’s brief.
This action by the Justice Department makes it clear it intends to appeal Hanen’s sanctions order. Whether he will grant the requested stay is unknown, but he had ordered a hearing on the DOJ’s request for June 7.
So far in this litigation, the Justice Department and the Obama administration have had a steadily losing hand. We will have to see if that continues.