Last Thursday, immigrants' rights advocates received yet another unexpected chapter in United States v. Texas. This case has affected countless families by blocking DAPA (Deferred Action for Parents of Americans) and the expansion of DACA (Deferred Action for Childhood Arrivals), the Obama administration's initiatives to allow certain immigrants to come forward and apply for the opportunity to live free from fear of deportation and receive work authorization. This twist came from the federal district court, which issued a blistering order that raised legal eyebrows even among those who support Texas's anti-immigrant position.
Judge Andrew S. Hanen claims to live by the Constitutional rulebook in his latest opinion. He fails to recognize, however, that this order includes an unconstitutional overreach of its own, effectively deputizing himself as overseer-in-chief of private, personal information about those who have applied under the original DACA initiative, a different immigration relief program announced by President Obama in 2012, and which Texas is not challenging.
Experts on both sides of the aisle agree that this order is likely to be appealed, and it's highly unlikely to ever take effect in its current form. Even so, this opinion should be exposed for what it -- and for what this entire case -- is: yet another politically-motivated attack on immigrant communities and those who stand with us.
Judge Hanen's order has been characterized as an attempt to chastise the Justice Department. I can sympathize with the lawyers at Justice who must be reeling and worried about this attack on their professional integrity. But Judge Hanen's order is much worse: He attempted to scare people like "A," a 20-year-old nurse in Houston with one of the three year work permits. Judge Hanen has demanded A's personal information, including her home address and her A-number (her immigration file number maintained by the federal government), along with information for tens of thousands of other young immigrants who received their DACA notifications in late 2014 before Judge Hanen blocked the new programs. Judge Hanen has promised to release this information to proper authorities in plaintiff states if they show "good cause" for its release.
Again, the 2012 DACA initiative has not been challenged in this lawsuit. In fact, Judge Hanen took care in his February 16, 2015, ruling to say that the original DACA was not at issue in this case, with a few exceptions. Judge Hanen now says that in an earlier order, he halted the issuance of three-year work authorization documents (as opposed to a two-year work authorization document). Yet, before this earlier order, Texas had not separately requested as a part of its legal complaint that these three-year work authorizations be limited. The Department of Justice's attorneys have maintained that they did not mislead the court, though Judge Hanen clearly does not believe them. A close impartial reading of the record shows great ambiguity and it is unclear that work permit length was at issue.
Judge Hanen claims he is issuing this order to reprimand the Justice Department for an ethical breech. But in what world should we punish young people who have done nothing wrong for such a breech, whether perceived or real?
This case, and this order, is ultimately about families. Immigrant families fought for American children to live free from the fear that their parents won't be home to tuck them into bed at night. Young immigrant leaders before them fought to live free from fear that they'll be torn from the only home they know.
Judge Hanen has attempted to put some of that fear back into immigrants' daily lives. He will fail. Our movement is stronger than a single judge and his anti-immigrant agenda. As a lawyer, I continue to believe in the integrity of our judiciary as one of the best in the world. But given the partisan way Judge Hanen has handled this case from the beginning, my trust now lies in the Supreme Court. I hope a majority of the Court will finally put this issue to rest, but in the meantime, we will continue to fight for basic dignity for people like A, who should not have her privacy stripped at a judge's whim.