Posted on 06/28/2016 1:56:47 PM PDT by Elderberry
It may be tempting to regard the Supreme Courts deadlocked decision last week in United States v. Texas, the Republican lawsuit challenging the Obama administrations 2014 immigration initiatives, as something of a non-decision or punt. The Courts one-line opinionwhich, by convention, affirms the lower courts judgment but has no further precedential effectdoes not address any of the substantive issues presented in the case. Nor does the opinion itself disclose how any of the justices voted on any of the questions before them, although there seems little mystery as to which justices were likely on each side of the decision. And especially since the case came to the Supreme Court at the preliminary injunction stage, the litigation may be far from overmaking it even more plausible to understand the Courts decision as one that defers ultimate resolution of those issues.
At the same time, to characterize the Courts decision as merely an inability to decide misses something consequential and troubling about that disposition. It is not merely the case, as Jack Chin and other legal observers have understandably lamented, that the Court missed an opportunity here to give some guidance on the controversial legal questions before itwhich of course it did. Nor is it only the case, as Walter Dellinger has powerfully observed, that with the lives of millions of U.S. citizens and non-U.S. citizens at stake in this litigation, [s]eldom have so many hopes been crushed by so few wordsabout which he, too, is unmistakably correct.
In addition, by affirming the legally flawed and deeply politicized lower court decisions blocking the Obama administrations immigration initiativesthe substance of which I have previously discussed in several essays for Dorf on Law (here, here, and here), an essay for Yale Journal on Regulation Notice and Comment, an essay for Washington Monthly, and an article in the UCLA Law Review Discoursethe Supreme Courts decision necessarily embraces modes of legal analysis and adjudication that the Court should have openly and decisively repudiated. And by doing so instead under the cover of an opaque, unsigned opinion that reports only the bare fact of the Courts stalemate, the four justices who voted to affirm those decisionspresumably Chief Justice Roberts and Justices Kennedy, Thomas, and Alitoobscure their own roles from public scrutiny at the expense of transparency and accountability. (Which, as it happens, are among the very rule of law values that the Obama administrations immigration initiatives themselves, by contrast, actually help to promote.) Both the continuities with and the contrasts to what has been transpiring in the political process this year are striking.
Like Donald Trump, Judge Andrew Hanenwhose preliminary injunction was affirmed by the Supreme Courts 4-4 decisionis a man with some longstanding, violently hostile opinions about immigration and the Obama administration. In a series of cases dating back to 2010, Judge Hanen has issued impassioned but entirely gratuitous commentaries excoriating the Obama administrations immigration policies and its policymaking officials at every turnin each case exhibiting an unusually high degree of personal interest, animosity, and emotional involvement in immigration-related matters far afield from any of the issues that were properly before him as a judge. In a number of these opinions, Judge Hanen has exhibited a somewhat tenuous grasp of reality. For example, at one point Judge Hanen angrily (and wildly) accused the Obama administrations immigration policymakers of hatching a criminal conspiracy with evil individuals to violate the immigration laws.
It is no secret that the Republican plaintiffs challenging the Obama administrations immigration initiativeswell aware of Judge Hanens outspoken criticisms of the Obama administrationfiled their lawsuit in Brownsville, Texas, precisely in order to steer its assignment to him. The claims in the lawsuit were rather weakso weak, in fact, that in the meantime the plaintiffs largely abandoned the arguments that they originally advanced. Nevertheless, Judge Hanen vindicated the plaintiffs forum shopping by enjoining the Obama administrations initiatives, in a sweeping 123-page ruling littered with provocative assertions about the ills of unauthorized migration. To substantiate the lawsuits weak claims, the opinion played fast and loose with the factsfor example, by repeatedly claiming that the initiatives award legal status to millions of illegal aliens when, in fact, they do no such thing. While the two appellate opinions by Judges Jerry Smith and Jennifer Walker Elrod affirming Judge Hanens injunction sought to rearticulate Judge Hanens clumsy and bombastic assertions in more refined terms, their analysis reproduced many of the same basic flaws that appear in Judge Hanens own decision.
Later, in denying the governments motion for a stay, Judge Hanen doubled down on the false assertions in his original opinion and added the new, wildly untrue assertion that President Obama personally ordered that the laws requiring removal of illegal immigrants that conflict with the 2014 DHS Directive are not to be enforced, and that anyone who attempts to do so will be punished. To support this assertion, Judge Hanen pointed to extrajudicial information that he appears to have found on the Internet.
Given Judge Hanens obvious hostility towards the Obama administration and its immigration policiesalong with an angry and emotionally involved approach to judging in these cases that at times seems to regard facts and truth as optionalit should hardly be surprising that some have characterized him as the Donald Trump of the federal judiciary. Interestingly, just as Trump has found it difficult to pivot to a more restrained and less controversial campaign for the general election, Judge Hanen, too, has found it difficult to tone things down and stay out of the headlineseven as the litigation has been pending before the Supreme Court.
Just last monthafter oral argument had been held before the Supreme Court, but before its decision was issuedJudge Hanen issued a bizarre, almost paranoid order accusing Justice Department lawyers of intentionally lying to him about the manner in which the Obama administrations 2014 initiatives were being implemented. As Stephen Legomsky and David Leopold have discussed at length, the factual basis for Judge Hanens accusation is highly dubious. Remarkably, in the course of his order, Judge Hanen proved incapable of even reciting the question presented to the Supreme Court in an impartial mannermaintaining that the resolution of whether the Executive Branch can ignore and/or act contrary to existing law or whether it must play by the rulebook now rests entirely with [the Supreme] Court. (The order also quotes at length from two movie scripts.)
To remedy the governments supposed misconduct, Judge Hanen took the freakish step of ordering all DOJ lawyers to undergo ethics reeducation, conducted under his own ultimate superintendence, before being permitted to appear in court in any of the twenty-six states that have sued to challenge the Obama administrations immigration initiatives. Judge Hanen also supplemented that continuing legal reeducation requirement with what effectively amounts to court-ordered doxing, directing the government to provide detailed personal information on over 108,000 unauthorized immigrants for whom deferred action under DACA was renewed prior to Judge Hanens February 2015 injunctionwithout even pretending to offer a plausible rationale that would justify those steps as appropriate remedies for the Justice Departments alleged misconduct.
In this context, when the Supreme Court granted certiorari to review Judge Hanens preliminary injunction in United States v. Texas, it squarely and necessarily presented itself with the choice of whether it would embrace or reject the trumpisprudence and judicial truthiness that formed the basis for Judge Hanens decision-makingjust as, in the realm of electoral politics, mainstream Republican politicians this year have been forced to choose whether to embrace or reject Trump himself as the partys presidential standard bearer. In the political realm, that latter choice has caused many Republican politicians to squirm as they struggle to explain and justify their decisions. Or if they can get away with it, to try to have things both ways or to avoid explaining their choices at all. Witness, for example, the cringeworthy spectacle of Paul Ryan criticizing Trumps attacks on Judge Gonzalo Curiel as the textbook definition of racismbefore reaffirming his endorsement of Trump due to their common ground. And then multiply that by several hundred.
Faced with an analogous choice, Chief Justice Roberts and Justices Kennedy, Thomas, and Alito must be understood as having effectively endorsed Judge Hanens anti-immigration trumpisprudence and judicial truthiness. But unlike Paul Ryans endorsement of Trump, the justices endorsement of trumpisprudence will less easily face public scrutiny, for it has come silently and behind the cloak of a one-sentence per curiam opinion. With no judicial opinions giving reasons for their endorsement (and indeed, without even any formal documentation of how they voted) the justices have evaded any responsibility to explain and justify their decisionan obligation ordinarily understood as central to the judicial role. Ironically, some of the politicians squirming in the face of the choice whether to endorse Trump have performed better than the justices did in United States v. Texas in attempting to give reasons to explain and justify their choiceswhich is only to say that unlike the justices, at least some of them at times have made minimal attempts to do so, even if unpersuasively and unsuccessfully.
As noted above, the litigation in this case is by no means overthat is, assuming that Paul Ryans man Trump does not win the election and moot the lawsuit altogether by rescinding the Obama administrations initiatives. But assuming that Trump does not win, the litigation will likely proceed to trial, after which it may return to the Fifth Circuit and eventually the Supreme Court, which might or might not by then (or ever) have a ninth justice. In the meantime, Judge Hanens other shenanigans, concerning the sanctions he wants to impose upon the Justice Department, will likely result in a separate trip to the Fifth Circuit and perhaps even the Supreme Court as well.
But regardless of what might later transpire in this litigation, public confidence in the judiciary as an institution has been disserved by how the Supreme Court and lower courts have handled this lawsuit to date. The bottom line for many will be this: partisan political actors maneuvered to steer a legally dubious lawsuitone that seeks to invalidate initiatives that were lawfully instituted by a democratically legitimate president, and that deeply affect millions of peoplebefore a rogue judge with a checkered history of gratuitous, anti-immigration commentaries, and successfully obtained a partisan result from that judge even though the factual and legal bases for their claims were highly questionable. Four justices of the Supreme Court not only endorsed and gave effect to that politicized judicial assault, but also evidently have embraced modes of contention more appropriately relegated to the political process, if even there. And they did so without giving any reasoned explanation for that endorsement. In the process, the traditional norms of judicial fact-finding and reasoned adjudication have taken a significant hit. It is difficult to disagree with Dellinger's conclusion that the result constitutes a signal failure of democracy.
Pure garbage.
Sorry.
What did any of this have to do with
Texas?
The review is biased in that it claims that Judge haney used unscrupilous means to make decision. If Judge haney’s means were Unconstitutional would not the Supreme Court instead dismiss the case. Instead the Supreme Court stated that the lower Court judge Haney’s rulings stand. So in essence the federal Governments lawyers did some things that were not constitutional. correct me if I am wrong. The article is kinda of pointing a finger that the Judge was wrong - and that the judge supported a weak arguement. me thinks this article is trying to revise what was done so the case can be reheard by another set of judges that the Odumbo Administration will chose to get the verdict that it wants
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.