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Justice Department appeals Hanen sanctions to Fifth Circuit

Missed this over the weekend.

Escalating its constitutional battle with a federal judge over the ethics of government lawyers in the major test case on presidential power over immigration, the Justice Department late Friday night asked a federal appeals court to swiftly nullify the judge’s order of sanctions.  In a massive filing of nearly four hundred pages, the department also asked that the judge’s order be put on hold while it is being challenged in the U.S. Court of Appeals for the Fifth Circuit.

This new conflict between the Obama administration and U.S. District Judge Andrew S. Hanen of Brownsville, Texas, is separate but related to the case that the Supreme Court is expected to decide this month on the legality of the immigration policy that the president announced in November 2014; it has not gone into effect.  If the government wins in that case, its lawyers told the Fifth Circuit, that would undermine a key part of Judge Hanen’s ethics order — a part that would affect some 50,000 young undocumented immigrants.


The large file of papers submitted to the Fifth Circuit included a petition for mandamus seeking to have the ethics order set aside, a motion for a stay until the mandamus plea is decided, and — if there is no stay — a request for an administrative delay while the stay plea is considered. Review of the mandamus plea should be expedited if no delay is granted of the Hanen order, the government suggested.

In addition, demonstrating that the government was using every legal maneuver it had to challenge Judge Hanen on the ethics question, it notified the Fifth Circuit that it believed that the merits of the ethics orders are now subject to an appeal, which the government will also be filing.

Even without that separate appeal, however, the petition for mandamus sought to lay before the Fifth Circuit the full scope of the government’s complaint against Judge Hanen in the controversy over ethics. It included details of the Justice Department’s version of the events that led Judge Hanen to find ethical violations, and explained the potential impact of the ethics order. It argued that the ethics dispute arose mainly from misunderstandings between the judge and the lawyers about just what was at stake, and not from a ploy by government lawyers to mislead the court.

The filings contended that the judge had no basis for his order (1) finding any ethical violation, let alone an intentional one; (2) imposing any sanctions without advance notice of just what they would be and a chance to contest them; (3) imposing broad new ethical training obligations on some 3,000 Justice Department lawyers, thus unconstitutionally intruding on the Justice Department’s management of its own employees; (4) imposing requirements on those attorneys as they appear in any court, federal or state, in any of the twenty-six states that had sued in the case, since his authority to deal with ethics extends only to cases directly in his court; and (5) ordering the government to hand over a vast amount of personal data about some 50,000 young undocumented immigrants who were given an extra year of deferral of potential deportation under the new policy, thus intruding on those individuals’ privacy and disrupting the government’s management of immigration policy.

See here, here, and here for the background. Judge Hanen ordered the information in question to be turned over to him by this Friday, so the DOJ is asking the Fifth Circuit to take action on this by tomorrow. In the meantime, there is a hearing today in Judge Hanen’s court on the request by the DOJ to stay his own order. I kind of feel like they’re not going to get any joy out of that, but you never know. One way or the other, things will happen quickly in this case. The WaPo has more.

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