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This judge is so anti-immigrant even the Trump administration wants him to chill

If Kris Kobach had a love child with ICE, that child would be Judge Andrew Hanen.

Judge Andrew Hanen (CREDIT: United States Sentencing Commission)
Judge Andrew Hanen (CREDIT: United States Sentencing Commission)

Judge Andrew Hanen may be the most anti-immigrant judge in the United States.

During the Obama administration, Hanen didn’t simply strike down several of President Obama’s signature immigration policies, he ordered a dox attack against tens of thousands of immigrants (though this order was later stayed).

After a dispute arose between Hanen and a handful of Justice Department attorneys defending Obama’s immigration policies — Hanen claims that the lawyers intentionally deceived him, the lawyers claim that they merely misunderstood a question — Hanen ordered hundreds of government lawyers, most of whom had never appeared in his courtroom, to attend a remedial ethics course.

At times, Hanen’s also appeared to manipulate his court’s schedule in order to prevent the Obama administration from appealing his orders.

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He may soon be at it again. On Wednesday, Hanen will hold a hearing in a case that could decide the fate of hundreds of thousands of undocumented immigrants who currently benefit from the Deferred Action for Childhood Arrivals (DACA) program. Given Hanen’s record, it is all but certain that he will strike down DACA. But even the Trump administration appears concerned that Hanen may take his hardline immigration views too far.

DACA permits certain undocumented immigrants who came to the United States as children to live and work in the country. Last year, Trump announced his intention to wind down the program, but the program is now in limbo thanks to a series of court decisions holding that the Trump administration failed to adequately explain its decision to end DACA.

In a document filed in Hanen’s court last June, Trump’s Justice Department warns Hanen not to issue an injunction halting the DACA program — even though the administration believes that DACA is illegal — because such an injunction could create chaos within the immigration system. (Or, if you prefer, more chaos.)

Noting that two federal courts previously issued “nationwide preliminary injunctions requiring Federal Defendants to continue (most of) DACA nationwide,” DOJ warns that another injunction ordering DACA halted would lead to “simultaneous conflicting court orders.”

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To be sure, the Justice Department disagrees with these two federal court decisions protecting the DACA program (as it presumably disagrees with a third pro-DACA decision handed down on Friday), but in a moment of uncharacteristic restraint, the Trump administration urged Hanen not to declare war on several of his fellow judges and force the federal government to stand in the crossfire.

The Trump administration, it is worth also noting, envisioned a relatively gradual phaseout of DACA. Current DACA beneficiaries would not immediately lose their status, but they would be unable to renew their DACA status after its two-year expiration date passes. Hanen, given his record of maximal anti-immigrant rulings and his efforts to punish advocates for more liberal immigration policy, is likely to order the entire DACA program shuttered immediately.

Up to this point, the Trump administration’s behavior in the DACA litigation has frankly been bizarre. Though it is a bit unclear whether this behavior is best explained by incompetence or malice.

Last April, for example, Judge John Bates, a George W. Bush appointee, handed down a complicated decision holding that the Trump administration acted improperly when it announced that it would wind down DACA. Bates’ April decision in NAACP v. Trump is difficult to summarize concisely, but much of his reasoning rested on a distinction between a federal agency’s decision to end a program for legal reasons and its decision to end the program because they disagree with it as a policy matter.

Policy decisions, Judge Bates held, are “presumptively unreviewable” by federal courts. An agency’s conclusion that a program is illegal, on the other hand, may be reviewed by federal courts.

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So its a bit surprising that, in response to Bates’ April order, the Trump administration issued a memo that largely just fleshes out its legal objections to DACA rather than issuing a new document ending DACA for policy reasons. Indeed, in an opinion handed down on Friday, Bates appeared incredulous.

“The Court has already once given [the Department of Homeland Security] the opportunity to remedy” the deficiencies Bates laid out in his April order, “either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review,” the judge wrote in his Friday opinion. “It will not do so again.”

There may be a reason, however, why the Trump administration decided to prolong this legal conflict rather than simply issuing a new decision rooted in policy objections to DACA. In 2016, when the Supreme Court had only eight members, the justices split evenly on whether a program similar to DACA is lawful. The addition of Neil Gorsuch to the Supreme Court — a man who behaves like the villain from a Charles Dickens novel — and the potential promotion of Judge Brett Kavanaugh mean that there will likely be five votes to strike down DACA if it reaches the Supreme Court.

By playing games with Judge Bates and other lower court judges, in other words, the Trump administration may be setting up a Supreme Court showdown that could permanently strip future presidents of their power to create DACA-like programs.

In the meantime, however, Judge Hanen could create significant chaos if he hands down an injunction that is at odds with the decisions of other judges who ordered DACA reinstated. The government will simultaneously be required to maintain and to abolish DACA, placing it in an impossible position.

Even the Trump administration doesn’t want that outcome, but there’s no guarantee that anyone can convince Hanen to stay his hand.