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The Joe Arpaio of the Federal Judiciary

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joe-arpaio

Strikes again:

A federal judge with a history of anti-immigrant sentiment ordered the federal government to turn over the names, addresses and “all available contact information” of over 100,000 immigrants living within the United States. He does so in a strange order that quotes extensively from movie scripts and that alleges a conspiracy of attorneys “somewhere in the halls of the Justice Department whose identities are unknown to this Court.”

It appears to be, as several immigration advocates noted shortly after the order was handed down, an effort to intimidate immigrants who benefit from certain Obama administration programs from participating in those programs, lest their personal information be turned over to people who wish them harm. As Greisa Martinez, Advocacy Director for United We Dream, said in a statement, the judge is “asking for the personal information of young people just to whip up fear” — fear, no doubt, of what could happen if anti-immigrant state officials got their hands on this information. Or if the information became public.

The judge is Andrew Hanen, who conservative attorneys opposed to President Obama’s immigration policies appear to have sought out specifically because of his belief that America does not treat immigrants with sufficient hostility. Texas v. United States was filed shortly after President Obama announced policy changes that would permit close to 5 million undocumented immigrants to temporarily work and remain in the country. As the name of the case suggests, the lead plaintiff is the State of Texas, yet the Texas Attorney General’s office did not file this case in Austin, the state’s capitol. Instead, they filed it over five hours away in the town of Brownsville.

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  • Murc

    Clever. Evil, but clever.

    Unless I’m badly misreading this, it’s an effort by a judge to get his hands on the identities and locations of a bunch of people who he perceives as being illegally in the country (and in a technical sense he may even be correct) and then transfer that information to state and local authorities who don’t give a good goddamn about any highfalutin’ federal “amnesty” program so they can begin legal harassment in the hopes of driving said people out.

    Have I got that right?

    • Rob in CT

      Sounds like it.

    • Scott Lemieux

      Yes. Yes, you do.

  • Sooooooo Trump’s first Supreme Court pick?

  • brad

    I’m amazed that this part is even legal;

    Additionally, Hanen ordered potentially hundreds of attorneys to attend remedial courses, regardless of whether those lawyers have ever appeared in his courtroom or even set foot in the state of Texas. Under his order, every single lawyer “employed at the Justice Department in Washington, D.C. who appears, or seeks to appear, in a court (state or federal) in any of the 26 Plaintiff States” must “annually attend a legal ethics course.” The Attorney General must appoint someone to provide annual reports to Hanen for five years, which must include “the name of the lawyer, the court in which the individual appeared, the date of the appearance and the time and location of the ethics program attended.” And, in case that’s not enough, he also ordered the Attorney General herself to “report to this Court in sixty (60) days with a comprehensive plan to prevent” the alleged misconduct that Hanen believes happened in his courtroom “from ever occurring again.”

    How does he assert authority to penalize lawyers who have never even set foot in a professional sense in his jurisdiction?

    • Anonymous Troll

      It is legal because he is not an activist judge appointed by a Democrat. He is a Bush appointee who just calls balls and and strikes.

    • SamChevre

      I have no clue about legal rules specifically, but this is extremely common in financial regulation.

      “Financial Corporation X had an employee who broke the know-your-customer rules; Financial Corporation X must ensure that all employees are re-trained on know-your-customer law.”

      • ajay

        But that is being issued by a judge who has jurisdiction over Company X. It doesn’t matter that its employees are all over the place. The judge (or regulator) is ordering Company X to make sure something happens, and he’s entitled to do that.

        • Anonymous Troll

          And it is because Company X has done wrong. Not just employees, but the company itself

          Thank you for the explanation. I wrote five paragraphs, but deleted because your comment was clearer

    • searcher

      I’m amazed that this part is even legal

      So I know there are various processes for removing a judge when they go crazy (eg, Roy Moore was just suspended as the Chief Justice of the Alabama Supreme Court).

      Is a ruling like this how that process starts? As one of the many not-lawyers on the internet, I don’t know if this “conservative justice uses his powers to their very limits” or “conservative justice completely loses touch with reality and oversteps his bounds”.

      It’d be hilarious if the net result of the jurisdiction shopping was getting favorable judges removed by provoking them beyond reason.

      • delazeur

        He’s an Article III judge, subject to impeachment by majority vote in the House and two thirds vote in the Senate. Don’t hold your breath for that.

        • Denverite

          The Fifth Circuit can also administratively sanction him. Which they won’t do but should. My guess is this judge hears more immigration cases than any other AIII judge in the country. He’s certainly in the top five. That’s wildly inappropriate.

        • searcher

          Does that ever happen? I have to assume that even with a favorable Congress that’s a “dead girl/live boy” situation.

          • Denverite

            It happens but not often. Since 1900, ten judges have been impeached. Six were convicted, two were acquitted, and two resigned prior to trial.

            • Just_Dropping_By

              It’s probably worth noting that besides those judges who were actually impeached some number of judges have also resigned at the mere threat of potentially being impeached (e.g., Edward “Naughty” Nottingham of D. Colo.).

              • Denverite

                Edward “Naughty” Nottingham of D. Colo.

                I used to run by his love shack (LoDo condo right on Cherry Creek) all the time. I swear I remember seeing an escort leaving early in the morning one time but that’s probably just a false memory.

              • rea

                Alcee Hastings–somewhat controversially impeached as a federal judge for corruption, subsequently elected to Congress

    • Tyto

      Also–oddly–the judge essentially ordered all of those attorneys to do what they need to do anyway to keep their bar cards. Well, not annual classes necessarily, but multiple ethics courses over the course of an MCLE compliance period. The California Bar requires four hours of ethics, plus two hours of ethics-related credits, every three years. Texas requires three ethics hours every two years.

      • efgoldman

        Texas requires three ethics hours every two years.

        As a non-lawyer but an observer of our largest crazy state, I’m wondering what a Texas ethics course even looks like. Wouldn’t Tailgunner Teddy Cruz and the current wacko AG, for instance, be required to take them?

      • Warren Terra

        I’m rather skeptical about Ethics Courses. They’re a mandatory part of training in Biology, but the lessons/exercises basically fall in two categories: (1) situations for which anyone can make a fairly clear judgment about what is or isn’t ethical (should you let someone get away with faking data? why, no, you shouldn’t), such that spending any significant time rehashing the question is patronizing and a waste of everybody’s time; and (2) situations that lack clear answers. There is some utility to making sure people have encountered a variety of these unanswerable questions, so they’re not completely blindsided when such arise later, but as you can’t actually prescribe answers all you can do is recommend a process, a recommendation that amounts to little more than “don’t be a dick”. Getting every student in the department into a stuffy room for several hours once a year is not a good way to teach this.

        • mds

          On the other hand, the university administrators have covered their asses. And isn’t that a lot more important than students’ and faculty’s time?

        • Murc

          My understanding is that part of the reason for them is to prevent people from piously claiming “I was never taught anything different, and my only professional obligation is to my paycheck.”

          That sort of thing tends to make entire professions look back, and they understandably want to be able to say, or at least pretend, “No, actually, we did teach this asshole different, and his professional obligations do NOT start and end with getting paid.”

          They may not mean it, of course. The ABA is famous for its reluctance to ethically censure lawyers, and the legal profession as a whole has a real “only loyal to my paycheck” problem. But it provides a useful fig leaf and if necessary a needed cudgel.

        • so-in-so

          Yeah, businesses require them yearly as well. Actually, I suspect there are some tricky biology ethics issues about suffering by human or animal subjects in experiments. My Dad was a biology professor, and earned the ire of a few colleagues by refusing permission for the animal experiments they wanted to conduct (with somewhat ill-defined criteria compared the the pain the animals would have endured).

          • Warren Terra

            I’m certainly not saying there aren’t important ethical issues deserving of serious contemplation; I’m just saying that the mandatory annual ethics classes are unlikely to greatly improve how such get handled.

  • SamChevre

    moved to correct thread.

    • rea

      Denied, counsellor!

  • CP

    A federal judge with a history of anti-immigrant sentiment ordered the federal government to turn over the names, addresses and “all available contact information” of over 100,000 immigrants living within the United States.

    Wouldn’t mind the feds “accidentally” “damaging” the “only” available list of these immigrants.

    I mean, fuck, if the CIA can do it without consequences, why not everyone else? At least this one would be for a good cause.

  • rewenzo

    Could have been worse! Apparently the Judge considered striking DOJ’s pleadings in their entirety, but decided not to because that wouldn’t be fair to the Supreme Court. (He also considered making the DOJ pay the plaintiff states attorneys fees but that wouldn’t work because the taxpayers are paying everybody’s fees anyways.)

    • delazeur

      Amusing to see a teabagger’s insistence that government budgets are “taxpayer dollars” override his desire to take money from a federal agency and give it to state agencies.

  • This being LGM, doesn’t tradition require a mention of how this goes to show how there isn’t a dime’s worth of difference, and the important thing is to keep your hands clean by refusing to vote for Hillary?

    • Bill Murray

      This being written by Scott, it has a very good chance of being written again, with a few changes, a few dozen more times

      • Dr. Ronnie James, DO

        …and such small paragraphs!

        • Bruce B.

          Small, but perfectly formed.

  • rewenzo

    I’m honestly conflicted about this. If the judge is right, and the DOJ intentionally lied to him and opposing counsel, this would indeed be huge breach of ethics. More disturbingly, government lawyers lying to a federal judge about their immigration actions under President Trump or Ryan would be a pretty scary thing. So, I guess two questions:

    1) Is Judge Hanen correct that the DOJ lied to him?
    2) What would be an appropriate remedy?

    • ajay

      The appropriate remedy for a judge who believes he’s been lied to in court is, I would think, to bring a charge of contempt of court or perjury, and/or a referral to the bar council or other professional body. But the linked article makes a good case that, at worst, the DOJ lawyers misunderstood the question he was asking, and that the judge is massively overreaching.

      • Denverite

        But the linked article makes a good case that, at worst, the DOJ lawyers misunderstood the question he was asking, and that the judge is massively overreaching.

        Right. Basically what happened is that the DACA program has been “revised” or “expanded” in two ways. First, and much less controversially, DACA status must be renewed every three years, not every two. Because the plaintiff states weren’t challenging the original DACA program, the government attorneys didn’t think they were challenging this aspect of DACA.

        Second, and much more controversially, the eligibility requirements were expanded so that more people qualified. There is no dispute that this is being challenged.

        At some point during the litigation, the court asked the federal government attorneys whether “revised” or “expanded” DACA applications were being approved. The federal government attorneys understood (or at least say they understood) this to be referring to the expanded eligibility aspect of the program, which was not in effect. The court is basically saying that it meant both the expanded eligibility aspect of the program and the increase in the renewal term. It cites a couple of briefs or oral statements made in a completely different context to “show” that everyone always understood that “revised” or “expanded” DACA meant both eligibility and renewal term. If you actually get down in the weeds and look at what the court is citing, it’s horseshit.

        • rewenzo

          Thank you, Denverite. Your explanation sounds persuasive.

          So then, is this judge just throwing a tantrum because he doesn’t think the case will be remanded?

          • Anonymous Troll

            He is not throwing a tantrum, he is merely enforcing the plain meaning of the words of the constitution as the framers intended. It is clearly set out in Art XXIV, clause LXI of the apocrypha of the constitution.

            • Murc

              I would like to read your spec script for National Treasure III.

              • Anonymous Troll

                See Antonin’s Epistle to the Federalists, chaps. 837 – 962. Et seq.

                • Gotcha! That’s not in the Apocrypha, it’s in the Pseudepigrapha!!

                  Back to Ethics Boot Camp for you. “If you don’t like Texas, push it away!!!”

    • DrDick

      Frankly, from the sounds of it, this has a level of reality comparable to UFO, 9/11, and Kennedy assassination conspiracies.

    • Hob

      If this is a serious question… did you read the section of the article that starts with “DOJ’s Explanation”? Do you not consider the DOJ’s explanation at all plausible, and if not, how would you propose to establish “what the Justice Department’s attorneys believed they were being asked to disclose to Judge Hanen” and why they would have lied about information that was already “stated explicitly in the document at the very heart of this case”?

      • Denverite

        The court addresses this by citing briefs and oral statements made in a different context that purport to reflect that the DOJ lawyers knew that everyone understood the “revised” or “expanded” DACA program to include the increased renewal term. It’s not persuasive.

    • SamChevre

      That’s my big fear–I do not want any precedent set in this case that makes prosecutors lying to the courts or concealing evidence even easier to ignore than it already is.

  • timb

    Entertainingly, IF the pre-modern Fifth Circuit adopted this finding, Loretta would be flying to Brownsville every 6 months to educate this bigot. Kennesaw Mountain Landis wished he had this kind of authority.

    Forum shopping , not just for evil plaintiff’s lawyers, but now, the secessionist govt of Texas.

    Seriously, have you heard Abbott is going George Wallace on bathrooms? These people are more hits than ever

    • Denverite

      not just for evil plaintiff’s lawyers

      Not evil, just deeply misguided.

    • NewishLawyer

      Plaintiff’s lawyers aren’t evil.

      Also everyone forum shops.

      • lunaticllama

        Yes and yes. For example, arbitration clauses in consumer contracts is a type of forum-shopping.

        • Denverite

          Federal court forum shopping by state governments is relatively unusual.

          • Anonymous Troll

            It is the competition between the courts to attract more shoppers that gives us the highly efficient court system we enjoy today. Free markets are always the answer.

            If only criminal defendants could forum shop the system would be perfect

            • Bill Murray

              can’t they if they are rich enough?

            • cpinva

              “If only criminal defendants could forum shop the system would be perfect”

              they can, it’s simply a matter of picking the right venue to commit your crime in. do some research, find out the names of the judges who have demonstrated a higher level of sympathy for past defendants who’ve committed the same crime.

              see, easy-peasy!

      • vic rattlehead

        In fact, I would argue that not researching the best possible forum for your client(s) (in which you have a good faith basis to file of course) is malpractice.

        And if it weren’t for all of us scumbag plaintiff’s lawyers, how would all those hotshot mass tort defense lawyers in big law pay the bills? You guys need us a lot more than we need you.

  • Warren Terra

    did not file this case in Austin, the state’s capitol. Instead, they filed it over five hours away in the town of Brownsville.

    I’ve never been to Texas, let alone to Brownsville, but the impression I get form what I hear is that this estimate is off by about four orders of magnitude, that places like Brownsville are not five hours but instead twenty-five years away from Austin.

    • Hogan

      Poor Mexico–so far from God, so close to Brownsville.

  • LeeEsq

    Immigration is my bailiwick so I can offer more informed commentary than my usual fonts of enlightenment. The Federal Judge is accusing Obama’s DOJ of really offering amnesty even though the amnesty filing has been challenged. He is taking something truthful and turning it into a big lie to make a political point like so many other Republican ideologues.

    The Immigration Courts are over booked. In order to cut down on the case load, DHS, who provide government lawyers for the Immigration Courts, and the Executive Office of Immigration Review, the part of Justice Department that includes the Immigration Courts, have been offering prosecutorial discretion to certain undocumented aliens. If an alien arrived in the United States before January 1, 2014 and has no or little criminal history than the alien may make or might be offered to have his or her case closed. This isn’t status and they don’t get work authorization unless they already had it before their case was closed. It could be reopened at anytime by either the alien or DHS. Sometimes the alien has to make the motion and sometimes DHS will offer it to the alien or the alien’s counsel.

    • Gary K

      Would Comic Sans be a font of enlightenment?

      • Just_Dropping_By

        I’d think that would be a font of primitivism. Palatino Linotype is the most enlightened font, in my view.

        • Pseudonym

          Like Hell it is.

      • cpinva

        Times New Roman

    • aidian

      If an alien arrived in the United States before January 1, 2014 and has no or little criminal history than the alien may make or might be offered to have his or her case closed.

      Is this routinely done? And do you know if it’s just in courts/circuits you practice in or if it’s more widespread? Sounds like something pretty close to backdoor legalization. Would be nice to see this sort of prosecutorial discretion used on a much broader swath of cases, but that ain’t likely.

    • Ken

      My (snarky) opinion is that we are getting exactly the amount of immigration enforcement that Congress has authorized, and if they want more, they should increase the INS funding.

      (As an alternative, the INS could self-fund by using civil forfeiture against companies convicted, or suspected, of employing persons not authorized to work in the United States.)

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  • aidian

    Huh.
    I think I’d likely side with the judge on the question of providing the personal details of the people benefiting from this action.
    In general, I’ll always side with disclosure. If the government has the info, the default position should be that it’s public.
    This is especially true when some people are receiving a benefit not given to anyone. There’s a lot of malfeasance that gets hidden because governments are able to avoid releasing personal info. My personal example is the local Sheriff giving CCW permits to campaign contributors (in a jurisdiction where issuing was up to the Sheriff’s discretion). It was tough to prove because of the resistance to releasing personal information about CCW permit holders.

    Of course, this judge is a nutjob winger with an ax to grind, but bad cases make bad law.

    • Ken

      Should they have to inform you before they publish your tax returns on the internet, or will it be OK if they just send you an e-mail with the URL?

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