Wall Street Journal (Editorial)
May 22, 2016
The constitutional challenge to President Obama’s executive action on immigration keeps getting more remarkable. A federal judge has now exposed how the Justice Department systematically deceived lower courts about the Administration’s conduct, and he has imposed unprecedented legal measures to attempt to sterilize this ethics rot.
On Thursday District Judge Andrew Hanen of Texas found that Obama Administration lawyers committed misconduct that he called “intentional, serious and material.” In 2015 he issued an injunction—now in front of the Supreme Court—blocking Mr. Obama’s 2014 order that rewrote immigration law to award legal status and federal and state benefits to nearly five million aliens.
When 26 states sued to block the order in December 2014, Justice repeatedly assured Judge Hanen that the Department of Homeland Security would not start processing applications until February 2015 at the earliest. Two weeks after the injunction came down, in March, Justice was forced to admit that DHS had already granted or renewed more than 100,000 permits.
Justice has also conceded in legal filings that all its lawyers knew all along that the DHS program was underway, despite what they said in briefs and hearings. One DOJ lawyer told Judge Hanen that “I really would not expect anything between now and the date of the hearing.” As the judge notes, “How the government can categorize the granting of over 100,000 applications as not being ‘anything’ is beyond comprehension.”
Justice’s only explanation is that its lawyers either “lost focus on the fact” or “the fact receded in memory or awareness”—the fact here being realities that the DOJ was required to disclose to the court. The states weren’t able to make certain arguments or seek certain legal remedies because the program supposedly hadn’t been implemented, leaving them in a weaker legal position.
More to the point, an attorney’s first and most basic judicial obligation is to tell the truth. Judge Hanen concludes that the misrepresentations “were made in bad faith” and “it is hard to imagine a more serious, more calculated plan of unethical conduct.” Many a lawyer has been disbarred for less.
As a result, Judge Hanen ordered that any Washington-based Justice lawyer who “appears or seeks to appear” in any state or federal court in the 26 states must first attend a remedial ethics seminar on “candor to the court.” He also ordered Attorney General Loretta Lynch to prepare a “comprehensive plan” to prevent such falsification. Such extraordinary judicial oversight is usually reserved for companies with a pattern of corruption or racially biased police departments. Justice is sure to appeal, and whether Judge Hanen has the jurisdiction to impose his plan is uncharted legal territory.
Yet the misconduct he has unmasked should trouble Americans of all political persuasions. Prosecutors often abuse their powers in run-of-the-mill cases. But this is a constitutional challenge with major consequences for the separation of powers, and the deceit must have required the participation and coordination of dozens of political appointees and career lawyers. That suggests a serious institutional failure, not mere rogue actors.
Main Justice may have figured that the state challenge would be tossed for lack of standing, and thus its dissembling wouldn’t matter. This would mean that President Obama’s refusal to recognize the legal limits of his executive power has spread a culture of lawlessness among his lawyers too.
AG Lynch could salvage the credibility of the Justice Department by explaining how this breakdown happened. Whether you worry about how Hillary Clinton or Donald Trump would wield government powers, everyone has an interest in an honest accounting of the facts that were denied to Judge Hanen.
For more information, go to: www.beverlyhillsimmigrationlaw.com