WASHINGTON — The federal district court judge who ruled against President Obama's expanded immigration executive action earlier this year slammed Justice Department lawyers on Tuesday night for what he called "misconduct" in the case.
U.S. District Court Judge Andrew Hanen formally denied the government's request that he put his ruling in the case on hold while the government appeals his decision in favor of Texas and several other states that have challenged the actions. The Justice Department, expecting that Hanen either would deny their request or not rule at all, already has asked the 5th Circuit Court of Appeals to issue a stay of Hanen's ruling during their appeal of it.
In addition to that, though, Hanen issued a second ruling, ordering the government to provide drafts and other information about a March 3, 2015 Advisory that the government had filed in the case.
The technical nature of that order, however, understates Hanen's action. The March advisory concerns a small, but substantial change to the previous deportation deferral program that Obama implemented in 2012, called Deferred Action for Childhood Arrivals (DACA). Although the government had not granted any deferrals to undocumented immigrants covered only by the expanded terms of the 2014 actions yet, the advisory explained the government had granted three-year deferrals to those eligible under the 2012 terms of DACA. Previously, only two-year deferrals were allowed; the 2014 order allows for three-year deferrals.
The states raised questions about whether these actions conflicted with the federal government's previous statements in the case; the government had said that it would take no actions regarding the 2014 changes until Feb. 18. The federal government has argued that its representations to the court were only intended to mean no actions would be taken as to the expanded class of people covered by the program.
The states disagreed and asked Hanen to allow additional discovery, or evidence-gathering, about the issue.
In granting additional discovery on Tuesday night, Hanen harshly criticized the federal government's actions — clearly siding with the states on this side-issue.
"[E]ven under the most charitable interpretation of these circumstances, and based solely upon what counsel for the Government told the Court, the Government knew its representations had created 'confusion,' but kept quiet about it for two weeks while simultaneously pressing this Court to rule on the merits of its motion," Hanen wrote.
Later, he noted, "Fabrications, misstatements, half-truths, artful omissions, and the failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life; but in the courtroom, when an attorney knows that both the Court and the other side are relying on complete frankness, such conduct is unacceptable."
Referring to the federal government's actions in these circumstances as "misconduct," Hanen wrote that "further investigation" of the issue was merited and went on to state:
The Court orders the attorneys for the Government to file, complete with courtesy copies to the Court and Plaintiffs, the following: (i) any and all drafts of the March 3, 2015 Advisory [Doc. No. 176], including all corresponding metadata and all other tangible items that indicate when each draft of the document was written and/or edited or revised; and (ii) a list of each person who knew about this Advisory, or about the DHS activity discussed therein, and each person who reviewed or approved its wording or filing, as well as the date and time when each person was apprised of this document and/or its contents, or of the DHS activity that is the subject matter thereof. No documents, electronic mails, texts, communications, or tangible items (including without limitation all computer records, hard drives, and servers) of any kind that deal with the Advisory or the subject matters discussed in the Advisory, whether or not owned by the Government, are to be destroyed or erased.
The federal government is to provide the information ordered by April 21.