Judge Hanen Defends the Judicial Branch, Congress Should Defend the Legislative Branch from Obama's Executive Branch Attack

In the immigration lawsuit filed by 26 states, led by Texas, against the Obama administration in the Southern District of Texas, federal Judge Andrew Hanen issued a February 16 initial injunction in the belief that no action had taken effect under President Obama's executive orders establishing an amnesty plan for illegal immigrants. President Obama's Department of Justice lawyers had not told Judge Hanen that more than 100,000 illegal immigrants had already received three-year reprieves from deportation and work permits. Justice Department attorneys insisted in early March that the moves were made under 2012 guidelines and apologized for any confusion, but Hanen seemed unconvinced during a March hearing and threatened to sanction the attorneys. In his April 7 Order in which Judge Hanen refused to lift his injunction halting implementation of the Obama amnesty plan, he said the federal government had been "misleading." But he said he wouldn't immediately apply sanctions against the government -- Hanen could have tossed out the DOJ pleadings and given the victory to the states,"but because of the constitutional question involved, he didn't. ~~~~~ In a same-day comment, the White House defended President Obama’s new executive order immigration policies as “common sense” - but spokesman Josh Earnest called them “legislative action” before correcting himself. (Under the Constitution, only Congress can create legislation, while the President is charged with carrying out the laws, not writing them.) Earnest said : “We continue to have strong confidence in the legal arguments that we’re making,” adding that they already had an appeal of Judge Hanen's injunction pending. Meanwhile, the Justice Department angrily denied the Judge’s accusation that government lawyers misled him. The White House and Justice Department were reacting to the scathing analysis of the Justice Department’s misbehavior contained in Judge Hanen's April 7 Order. Hanen found that “attorneys for the government misrepresented the facts” to the court in pleadings filed in February and March. He told the Justice Department that he expected all the parties in the case including the government, “to act in a forthright manner and not hide behind deceptive representations and half-truths.” Judge Hanen also reprimanded the Justice Department lawyers for not having informed him immediately upon their discovery of the misrepresentation, saying that their claim that they took prompt, remedial action was “belied by the facts.” ~~~~~ Indeed, the Justice Department has now proved Judge Hanen correct. In an Advisory filed on May 7, the Justice Department finally informed Judge Hanen that the Department of Homeland Security (DHS) “sent three-year work authorizations after the court had issued its injunction” to approximately 2,000 individuals. This time, the Justice Department lawyers assert they only found out about the violation of the injunction order the day before their May 7 filing. They also said that DHS is in the process of converting “these three-year permits into two-year permits” and that Secretary Jeh Johnson has asked the DHS Inspector General to investigate the issuance of the three-year EADs (Employment Authorization Documents)," and is "begging" illegals who received the three-year EADs to return them in exchange for two-year EADs. ~~~~~ Thus, despite having told Judge Hanen both in court and in written pleadings that no part of the President’s plan was being implemented, the Justice Department lawyers have now made it clear that at least until late February, government officials were doing exactly the opposite. First, DOJ lawyers misled the court concerning more than 100,000 three-year amnesty applications that were approved between November 20 and February 16, as to which lawyers said they didn’t intend to mislead, assuming Judge Hanen knew those applications were being approved. Second, DHS later announced it had approved the 2,000 or so three-year applications even after the injunction - a clear violation of the judge’s Order that raises questions about the lawyers’ excuses for the first 100,000 approved applications. ~~~~~ “As the director of USCIS, I accept full responsibility," chief Leon Rodriquez said in a May 7 affidavit filed with Judge Hanen. Administration officials said the more than 100,000 applications approved between November 20 and February 16 were a "misunderstanding," while the 2,000 cases approved since the February 16 injunction were a problem with DHS’s IT procedures. Donald Neufeld, the DHS employee who is overseeing the deportation amnesty, said when the inunction came down, they stopped all amnesty applications. A few days later, they began processing two-year approvals again, but didn’t catch thousands of three-year cases that were in the pipeline. ~~~~~ In a supplemental three-page Order issued on May 8, Judge Hanen cited additional evidence to support his February finding that the states have standing to challenge Obama’s immigration plan. Judge Hanen had said in his February 16 Order that when the President declared in a televised town hall in February that agents who ignored his policies would face “consequences,” Obama showed that he intended to rewrite the law, not to carry it out. “In summary, the chief executive has ordered that the laws requiring removal of illegal immigrants that conflict with the [Obama] 2014 DHS directive are not to be enforced, and that anyone who attempts to do so will be punished,” Judge Hanen wrote. In addition, Judge Hanen noted in his May 8 Order that after the injunction was issued - in sworn testimony on April 14 before the House Judiciary Committee - Sarah Saldana, the DHS director of Immigration and Customs Enforcement, “reiterated that any officer or agent who did not follow the dictates of the 2014 DHS Directive would face the entire gamut of possible employee sanctions, including termination." Hanen said : “the President’s statements have now been reaffirmed under oath by the very person in charge of immigration enforcement" so that the government “has announced, and has now confirmed under oath, that it is pursuing a policy of mandatory non-compliance (with the Immigration and Nationality Act (INA), and that any agent who seeks to enforce the duly-enacted immigration laws will face sanctions - which could include the loss of his or her job.” It is this “clear abdication of the law by the government - a law that is only enforceable by the government and outside the province of the states” that gives the states standing to bring suit. ~~~~~ It should be noted that the Justice Department checked with the White House before informing Judge Hanen that it was already carrying out part of President Obama’s immigration amnesty, administration attorneys revealed in the documents filed in court on May 7, as they tried to head off a serious judicial reaction against them. The attorneys turned over the communications with the White House to Judge Hanen -- clearly something that would not be done without presidential approval -- but the lawyers pleaded with the court not to look at the documents on grounds that it would intrude on the President’s powers. Still, the revelation that the White House was in the decision loop suggests officials knew the seriousness of the error in not informing Judge Hanen earlier that the Department of Homeland Security was already carrying out part of Obama’s amnesty by granting three-year work permits to illegal immigrants who qualified under the 2012 policy. ~~~~~ Dear readers, the latest actions by the government may make it very difficult for Justice Department lawyers who are trying to convince the 5th Circuit Court of Appeals to overturn Judge Hanen’s injunction. This whole series of misstatements and probable lies by the Obama Department of Justice is not acceptable to the judicial branch of the US government, in this case represented by federal court Judge Andrew Hanen. It should also serve to boost the confidence of congressional leaders that Obama administration delaying tactics and misrepresentations are not acceptable to the legislative branch, either. The delays, half-truths, lost emails, refusals to turn over documents, Fifth Amendment use to avoid testifying -- whether for the IRS harassment of political groups, Fast and Furious, refusal to cooperate in the Benghazi investigation -- all point to President Obama and his administration's operation outside the spirit and letter of both the Constitution and the law. Congress should protect its constitutional functions and rights with assertiveness, in the knowledge that federal courts may yet protect their constitutional role. To be timid - to allow the Constitution to be trodden under by the executive branch - should not be any more acceptable to Congress or Americans than it is to Judge Hanen. Congress members have emails. Use them.