Sunday, August 2, 2015

Obama Administration Asks Judge to Wink at Its Disobedience

Bloomberg Business reports that the US Department of Homeland Security has requested that Judge Andrew Hanen, the federal judge hearing Texas v. United States, to forego a planned hearing on a charge of contempt of court against the Secretary of the Department of Homeland Security and other DHS officials. 

Here is a link to the story.

Remember, this case, brought by Texas, along with Alabama, Arizona, Arkansas, Florida, Georgia, Idaho (and the Idaho Governor), Indiana, Kansas, Louisiana, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wisconsin, as well as Michigan’s attorney general and the Governors of Mississippi, Maine, and North Carolina. Tennessee and Nevada have also sought to join the lawsuit. This map gives you a quick grasp of the States lined up to complain about the impact of the Obama administration programs at stake in the case on their people:

Texas v. United States charges that a program of the Obama administration -- Deferred Action for Parents of Americans ("DAPA") -- is causing, or will cause, substantial, irreparable economic harms to the complaining States. Obama announced DAPA in November 2014. The States, led by Texas, sued shortly thereafter. You can read the complaint in the case here.

DAPA is different than the Obama administration's other highly controversial immigration initiative, Deferred Action for Childhood Arrivals ("DACA"). While DACA beneficiaries are now or about to be, young adults brought to the USA in childhood and who have completed or are completing their education, are gainfully employed, and have no significant criminal history, DAPA benefits the parents of children born in America, the so-called "anchor babies," or children that have acquired permanent legal resident status.

The key to both programs is the phrase, "Deferred Action."

"Deferred Action" simply means that the government does not take adverse immigration action (removal, or institution of removal proceedings) where, by law, the government otherwise could properly do so. You could equate the programs with a kind of clemency or discretionary refusal to prosecute.

Because Judge Hanen concluded that the States-Plaintiffs were likely to succeed in the claims of their lawsuit, that the States would suffer irreparable injury if the Obama administration went forward with DAPA, he issued an injunction against the DAPA program pending the outcome of the case. The injunction prohibited the Obama administration from issuing work permits to program beneficiaries.

Despite the Court's Order, the Department of Homeland Security and its Office of Citizenship and Immigration Services issued work permits. TWENTY-FIVE HUNDRED WORK PERMITS.

At that point, Judge Hanen expressed his outrage at the administration's defiance of the Court's Order, and gave DHS Secretary Johnson, the DHS and the USCIS until July 31, 2015, to correct their disobedience of his Order. Here's the relevant part of his July 7, 2015, Order:
[N]o reasonable person could possibly consider a direct violation of an injunction a side issue. Furthermore, [] when a non-compliant party refuses to bring its conduct into compliance, one must conclude that the conduct is not accidental, but deliberate. If these violations have not been corrected by the end of this month, [] the only logical conclusion is that the Government needs a stronger motivation to comply with lawful court orders. Neither side should interpret this Court’s personal preference to not sanction lawyers or parties as an indication that it will merely acquiesce to a party’s unlawful conduct.
So the United States, which had been under a federal court's injunction not to issue temporary work permits under the challenged programs, did so despite the Court's Order. Now we have the government saying, "your Honor, we acknowledge defying your Order 2500 times, but we have now corrected our misconduct by recapturing 2475 work permits and electronically invalidating the other 25. Please do not find us in contempt."

Hmmmmmmmm ... if this were the plea of the "common man," would the Court act mercifully, or bring to bear its full power of judgment? How does a court vindicate the authority reposed in it by Congress under the Constitution? Courts treat disobedience of their Orders as an offense ... and so do the laws of virtually State and of the United States.

The word "contempt" covers other things beside directly disobeying a court order. Courts will treat a physical attack on the judge, or on lawyers, witnesses, jurors, and court personnel as contempt. Swearing at the judge, talking while the judge is talking, all manner of breaches of social etiquette can be transformed into contempt of court. Years ago, before law school, I witnessed a debate of the North Carolina Civil Liberties Union on taking on a case in which an elderly man that parked in the judge's streetside space had been charged with contempt of court and held in a courthouse holding cell for a day.

As it turns out, though, just as different things can be contempt, contempt actually has two basic forms:  criminal contempt of court and civil contempt of court. These two categories have to do with the purpose of the Court's Order finding someone in contempt of court, and with the "punishment" to be applied to the contemnor (the person charged with contempt).

Well, in fact, much depends on the reason for the Court's initial contemplation of a contempt order.

If the Court was punishing the violation of its Order, then the correct response by the Court is to hold the contemnor in CRIMINAL CONTEMPT, a form of contempt that punishes a prior act or prior acts.  If, on the other hand, the Court was seeking to coerce the government to obey its Order, then the correct step is CIVIL CONTEMPT.

Now, having read the Court's July 7 Order, it is clear that he threatened the Defendants with Civil Contempt to force them to bring their conduct into compliance with his Order. If, as their filing at the end of July claims, they have done so, then typical coercive actions -- including, for example, jailing officials until they obey, or imposing a daily fine in contempt every day until the government complies -- are not appropriate.

But don't lose sight of what the Executive Branch has done here. It disobeyed the law, then later sought to make corrections to its disobedience, and beg forgiveness. As ever, I think an important first question to ask is whether this administration agree that forgiveness should be granted to its political opponents and enemies?