On Thursday, Judge Andrew Hanen, a George W. Bush appointee to a federal trial court in Texas, will hear a challenge brought by officials in two dozen states that object to President Obama’s recently announced immigration policy. Last month, however, Hanen handed down a strongly worded order claiming that the federal government engaged in a “dangerous course of action” because it allowed an undocumented mother to be united with her child without having criminal charges brought against her. Though it is theoretically possible to draw a narrow legal distinction between the arguments Hanen raised in his December order and the arguments against President Obama’s broader policy, the order leaves little doubt about how Hanen will decide the case currently pending before his court. The Obama Administration might as well attempt to defend its policy before Judge Ted Cruz.
Hanen’s December order involved an undocumented mother, her 10 year-old daughter, and a woman named Mirtha Veronica Nava-Martinez that the judge describes as an “admitted human trafficker.” According to Hanen, the mother hired Nava-Martinez to help bring her daughter from El Salvador to the United States. Nava-Martinez was caught at a checkpoint, arrested, and she pled guilty to charges that she attempted to smuggle the daughter into the United States. The case was in Hanen’s courtroom to resolve this prosecution. Neither the mother nor the daughter were before Hanen or his court.
A 1997 settlement agreement requires the federal government to “release a minor to his or her parent, guardian, or relative, among others, in an order of preference established by the settlement documents,” though Hanen claims that the settlement agreement has expired. In apparent compliance with this settlement agreement, the government reunited the mother and daughter. The terms of that settlement agreement, which arose from an unrelated lawsuit filed in a federal court in California, also were not before Hanen or his court. Federal district judges in Texas rarely, if ever, have the power to alter the terms of a settlement agreement approved by one of their judicial colleagues from a completely different federal district in a completely different state.
Yet despite the fact that Judge Hanen had no apparent jurisdiction over the mother, the daughter, or the settlement agreement, Hanen issued a 10-page “order” expressing his disagreement with the government’s decision not to bring criminal charges against the mother. “There is nothing in this settlement,” he complains, “that prohibits the [federal government] from arresting” the mother. Or, barring that, “from at least initiating deportation proceedings.” Indeed, he characterizes the government’s decision to reunite the undocumented mother and child without charges or the threat of deportation as turning “participat[ing] in and complet[ing] the mission of a criminal conspiracy.” The government’s decision to allow mother and child to remain in the United States without criminal charges, according to Hanen, is “both dangerous and unconscionable.”
Hanen concludes his opinion with a flourish, claiming that the federal government “should enforce the laws of the United States — not break them.”
Judge Hanen’s decision to opine at all on the government’s decision not to bring a particular prosecution is highly irregular. Prosecutors have extraordinarily broad discretion to decide which suspects to charge and actively prosecute, and this kind of prosecutorial discretion is mostly “unreviewable” by federal courts. As the Supreme Court explained in United States v. Armstrong:
Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. “Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.”
So, by opining on the federal government’s decision not to bring prosecutions, Hanen — who is a member of the judicial branch of government, not the executive — intruded upon “a core executive constitutional function.” The fact that he did so in a case where he does not appear to have jurisdiction over the party that the government chose not to prosecute makes his decision to weigh in on this question even more bizarre. None of this bodes well for the men and women who benefit from the Obama Administration’s immigration policy.
The lawsuit currently before Hanen challenges the policy President Obama announced in November to defer deportation proceedings against approximately 4.9 million undocumented immigrants, most of whom are parents of U.S. citizens or legal permanent residents. Deportation is a civil proceeding, not a criminal proceeding, and the scope of prosecutorial discretion is arguably less broad in civil cases. As the Supreme Court explained in Heckler v. Chaney, “an agency’s decision not to take enforcement action . . . is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers.”
Nevertheless, the substantive statutes laying out the executive branch’s role in deportation proceedings gives that branch considerable discretion to decide when to act and when not to act. According to the Supreme Court’s 2012 decision in Arizona v. United States, a “principal feature of the removal system is the broad discretion exercised by immigration officials.” Indeed, “[f]ederal officials . . . must decide whether it makes sense to pursue removal at all.”
There’s also another, more basic reason why the federal government cannot take action against every undocumented immigrant in the United States. According to the Department of Justice, “there are approximately 11.3 million undocumented aliens in the country,” but the federal government only “has the resources to remove fewer than 400,000 such aliens each year.” Thus, it would be impossible for the government to remove more than a fraction of the undocumented population. The question before Judge Hanen essentially boils down to whether the government can be thoughtful about who it deports — prioritizing particularly dangerous individuals and deprioritizing the law-abiding parents of citizens, for example — or whether the government must randomly deport the first 400,000 immigrants the government happens to discover.
As Arizona and other Supreme Court decisions suggest — not to mention the structure of federal immigration law — the Obama Administration has very strong arguments on its side. Yet it does not appear likely that those arguments will matter much in Judge Hanen’s courtroom. Hanen, it seems, has already tipped his hand.