On Tuesday, Texas Attorney General Ken Paxton — with an assist from an Obama appointee to the federal bench — successfully manipulated the federal court system to place a challenge to President Obama’s signature immigration program before one of the most anti-immigrant judges in the nation.
Though the immediate issue before Judge Andrew Hanen concerns the fate of the Deferred Action for Childhood Arrivals (DACA) program, Hanen has a history of using immigration cases to threaten the safety of tens of thousands of immigrants not before his court. Now that Hanen has jurisdiction over Texas v. United States, he could potentially use this case as a vehicle to terrorize immigrant communities.
To understand what’s going on here, let’s start with this map. Paxton’s main office is in Austin, the capital of Texas. Yet Paxton filed this case in the Southern District of Texas’ Brownsville Division — more than five hours away.
It’s easy to guess why. The Southern District’s Brownsville Division has two active judges: Hanen, and an Obama-appointee named Rolando Olvera. By making the long drive to Brownsville, Paxton’s lawyers gave themselves even odds that their case would be assigned to a judge who once attempted a dox attack against tens of thousands of undocumented immigrants.
As it turns out, Team Paxton initially lost this bet — the case was randomly assigned to Olvera, not to Hanen. But only a few hours later, Olvera transferred the case to Hanen, effectively rewarding Paxton’s effort to game the court system.
Such transfers are not unusual. During the Obama years, Paxton’s lawyers also made the long trip to Brownsville in order to place a similar challenge to an expansion of DACA and a DACA-like program in Hanen’s courtroom. It is common for a district judge to transfer a case to one of his colleagues when that colleague recently handled a similar matter.
Yet, by treating this case as an ordinary matter and Hanen as an ordinary judge, Olvera all but ensured that Texas will be handled in the cruelest manner possible for undocumented immigrants.
Hanen’s war on immigrants
Hanen’s behavior in the previous immigration case — which was also named Texas v. United States — hints at the tactics he may now deploy. In the first Texas case, Hanen did not simply halt several pro-immigrant policies advanced by the Obama administration, he delayed ruling on the Obama administration’s request for a stay of that order — a delay that made it extraordinarily difficult for the Justice Department to seek a stay from a higher court.
Then things got weirder. At an early stage in the first Texas litigation, Hanen asked a question that provoked a disagreement between him and the Justice Department attorneys litigating the case. The lawyers claimed that they misunderstood the question, while Hanen claimed that they deliberately answered the question in a deceptive way. Rather than chalking this incident up to an innocent mistake, Hanen used it to impose draconian sanctions against tens of thousands of people who were not before his court and who played no role in the Justice Department’s answer to his question.
For example, Hanen ordered hundreds of Justice Department attorneys — most of whom had never appeared before Hanen in their lives — to attend a remedial ethics course. He also ordered the Obama administration to turn over the names and addresses of approximately 50,000 undocumented immigrants. Moreover, Hanen’s doxing order provided that this information could be turned over to “the proper authorities” in 26 states with Republican governors or attorneys general.
Hanen, in other words, used a disputed statement by Justice Department attorneys as a vehicle to intimidate tens of thousands of immigrants who played no role whatsoever in those lawyers’ alleged misconduct. (Hanen eventually stayed his doxing order after an appeals court indicated that it might get involved if Hanen did not issue such a stay.)
Now that the second Texas litigation is before Hanen, he will likely engage in similar tactics. If nothing else, his past conduct is likely to chill immigration advocates who will seek to intervene in this case to ensure that the task of defending DACA will not rest entirely with the Trump administration. As a result, DACA beneficiaries could receive less-than-zealous advocacy on their behalf.
Lawyers defending DACA will live in constant fear that Hanen will use even the most minor misstep on their part as a pretext to sanction these lawyers — and potentially to lash out at immigrants more broadly.
The injunction paradox
One open question is whether Hanen will go so far as to issue an injunction halting DACA. Other courts have issued injunctions requiring the Trump administration to keep DACA alive. If Hanen were to issue a conflicting order, that would place federal immigration officials in the untenable position of having to comply with two court orders that require them to take opposite actions.
As former Obama administration attorney Eric Columbus described this predicament on Twitter, “the immediate effect would be that they’re not allowed to do that which they’re required to do.”
Columbus predicted that Hanen would not issue such an injunction, and he cited to a law review article explaining that, when conflicting injunctions have arisen in the past, “typically one judge or the other backs down, narrowing or staying one of the issued injunctions, or else an appellate court reverses one of the conflicting injunctions.”
Hanen’s past behavior, however, suggests that he is not the kind of judge who will let legal precedent stand in the way. And any order handed down by Hanen will appeal to the United States Court of Appeals for the Fifth Circuit, one of the most conservative courts in the country.
By manipulating the court system to get this case before Hanen, in other words, Paxton could create a chaotic situation where career immigration officials risk contempt sanctions no matter what they do, political appointees use Hanen’s order as an excuse to shut down DACA, and DACA beneficiaries have no idea who is in charge.
All of this is happening amidst a much larger debate about whether litigants should be permitted to manipulate the court system in the very same way that Paxton manipulated it in the two Texas cases.
In a recent speech to the conservative Federalist Society, Attorney General Jefferson Beauregard Sessions III complained about several cases where liberals used Paxton’s tactics against the Trump administration, convincing district judges to issue nationwide injunctions “on issues like DACA, the travel order, sanctuary cities, and the service of transgender people in the military.” During last week’s oral argument on the legality of Trump’s Muslim Ban, Neil Gorusch — who occupies a Supreme Court seat that Senate Republicans held open for a year until Donald Trump could fill it — complained about “this troubling rise of this nationwide injunction, cosmic injunction.”
So, at least among some conservatives, there is a growing understanding that a single district judge should not be permitted to decide questions of national policy for the entire nation (though it remains to be seen whether Gorsuch continues fret about “cosmic” injunctions after he learns about how much they help his allies disrupt progressive policies).
Until someone intervenes — perhaps through an amendment to the Federal Rules of Civil Procedure that would automatically reassign cases requesting a nationwide injunction to a random district judge, or, as Judge Gregg Costa proposed in the Harvard Law Review, assigning requests for such injunctions to a three-judge panel — partisans like Ken Paxton are likely to keep manipulating the court system. And judges like Andrew Hanen are likely to continue abusing their power.