By Anil Kalhan
It may be tempting to regard the Supreme Court’s deadlocked decision last week in United States v. Texas, the Republican lawsuit challenging the Obama administration’s 2014 immigration initiatives, as something of a “non-decision” or “punt.” The Court’s one-line opinion—which, by convention, affirms the lower court’s judgment but has no further precedential effect—does 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 over—making it even more plausible to understand the Court’s decision as one that defers ultimate resolution of those issues.
At the same time, to characterize the Court’s 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 it—which 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 words”—about which he, too, is unmistakably correct.
In addition, by affirming the legally flawed and deeply politicized lower court decisions blocking the Obama administration’s immigration initiatives—the 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 Discourse—the Supreme Court’s 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 Court’s stalemate, the four justices who voted to affirm those decisions—presumably Chief Justice Roberts and Justices Kennedy, Thomas, and Alito—obscure 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 administration’s 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.
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Like Donald Trump, Judge Andrew Hanen—whose preliminary injunction was affirmed by the Supreme Court’s 4-4 decision—is 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 administration’s immigration policies and its policymaking officials at every turn—in 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 administration’s 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 administration’s immigration initiatives—well aware of Judge Hanen’s outspoken criticisms of the Obama administration—filed their lawsuit in Brownsville, Texas, precisely in order to steer its assignment to him. The claims in the lawsuit were rather weak—so 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 administration’s initiatives, in a sweeping 123-page ruling littered with provocative assertions about the ills of unauthorized migration. To substantiate the lawsuit’s weak claims, the opinion played fast and loose with the facts—for 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 Hanen’s injunction sought to rearticulate Judge Hanen’s clumsy and bombastic assertions in more refined terms, their analysis reproduced many of the same basic flaws that appear in Judge Hanen’s own decision.
Later, in denying the government’s 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 Hanen’s obvious hostility towards the Obama administration and its immigration policies—along with an angry and emotionally involved approach to judging in these cases that at times seems to regard facts and truth as optional—it 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 headlines—even as the litigation has been pending before the Supreme Court.
Just last month—after oral argument had been held before the Supreme Court, but before its decision was issued—Judge Hanen issued a bizarre, almost paranoid order accusing Justice Department lawyers of intentionally lying to him about the manner in which the Obama administration’s 2014 initiatives were being implemented. As Stephen Legomsky and David Leopold have discussed at length, the factual basis for Judge Hanen’s 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 manner—maintaining 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 government’s 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 administration’s 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 Hanen’s February 2015 injunction—without even pretending to offer a plausible rationale that would justify those steps as appropriate remedies for the Justice Department’s alleged misconduct.
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cringeworthy spectacle of Paul Ryan criticizing Trump’s attacks on Judge Gonzalo Curiel as “the textbook definition” of racism—before 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 Hanen’s anti-immigration trumpisprudence and judicial truthiness. But unlike Paul Ryan’s 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 decision—an 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 choices—which 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 over—that is, assuming that Paul Ryan’s man Trump does not win the election and moot the lawsuit altogether by rescinding the Obama administration’s 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 Hanen’s 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 lawsuit—one that seeks to invalidate initiatives that were lawfully instituted by a democratically legitimate president, and that deeply affect millions of people—before 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.”