Is the politically charged Texas immigration case about to become more politically charged?

As the 9 justices of the U.S. Supreme Court ponder whether to review the Republican lawsuit attacking President Obama’s immigration executive actions, back in Brownsville, Texas U.S. District Judge Andrew Hanen—whom Republican politicians, led by the state of Texas, sought out late last year to block the actions known as DAPA and DACA expansion—appears to be making an already brazenly political lawsuit more political.

In a little noticed order issued earlier this month Hanen commanded the parties to appear in his courtroom on Tuesday December 15 to explain the effect of a procedural decision of the 5th Circuit Appeals Court “on the rights of individuals to intervene in the case.” (The intervenors are people who have expressed an interest in becoming parties to the Texas immigration case).

When I read Hanen’s order the first question that came to my mind was: Why have a hearing now?  Hanen’s temporary injunction blocking the immigration executive actions is currently on appeal to the Supreme Court.  If the Court agrees to hear the case this term the lawsuit will not likely return to Hanen’s court room for months, if ever.  Most legal scholars and observers believe that Hanen was wrong to block the president’s executive actions last February.  If the Supreme Court hears the case this term there’s a pretty good chance they’ll toss out the entire case, rendering a hearing on the intervenors pointless.

Wouldn’t it make more sense for Hanen to put the whole case on hold until after the Supreme Court reviews it?  Why waste precious tax payer dollars and limited judicial resources on a procedural hearing about the role of the intervenors if there is a chance the case won’t survive Supreme Court review?  On that point even the GOP politicians who brought the case seem to agree. They’ve joined the Obama administration in a motion asking Judge Hanen to shelve the case until after the Supreme Court makes a decision.

What’s driving Hanen to go forward with a hearing at this point? Doesn’t he have other cases on his docket that need his immediate attention?

Maybe Hanen’s sense of urgency has more to do with who the intervenors are? Among those seeking to impose themselves on the litigation are Orly Taitz, queen of the disgraced and discredited birther movement, which challenged President Obama’s U.S. citizenship and legitimacy as President (Taitz specifically sought out Hanen to file several anti-immigrant lawsuits) and the infamous Maricopa County Sheriff Joe Arpaio, who’s built his brand by terrorizing Latino neighborhoods, surreptitiously investigating the wife of a federal judge and violating folks’ civil rights.  Arpaio lost a case on this same issue in the D.C. District and on appeal at the D.C. Circuit Court of Appeals.  It’s difficult to imagine that either Taitz or Arpaio have a “concrete, personalized, and legally protectable” interest in the case as required for intervention. Yet Hanen has set the hearing for Tuesday, December 15 and that presumably means the interests of Taitz and Arpaio will be heard.

All this underscores the real nature of the Texas GOP attack on DAPA and DACA which, as a panel of the 5th Circuit appeals court observed in its order affirming Hanen’s hold on DAPA and DACA expansion, involves “policy disagreements masquerading as legal claims”. Taking the court’s apt description a step further, the Republican challenge to the deportation deferrals is more about the party’s rabid disdain for “anything Obama” than the sanctity of the law.  DAPA and DACA wouldn’t have even been necessary if the GOP House leadership had allowed an up or down vote on comprehensive immigration reform in 2013.  Everyone knows that immigration reform would have passed Congress and the President would have signed it into law obviating the need for a deportation deferral.  In the aftermath of the House GOP’s intransigence Obama set forth immigration enforcement priorities which target felons, national security threats and recent border crossers rather than DREAMers and undocumented parents.  While he was able to slap a temporary hold on DAPA and DACA expansion, Hanen—who has not shied away from launching gratuitous attacks on the Obama administration’s immigration enforcement policies—knows that the President’s enforcement priorities are unassailably legal.

Is that why Hanen appears so eager to open his courtroom to a discussion of the role of the intervenors, including the infamous Sheriff Joe Arpaio and birther queen Orly Taitz, as the Supreme Court decides whether it will hear the Texas immigration case this term?

It seems that the participation of Apraio and Taitz will do little more than inject more nasty politics into the GOP’s shamelessly political lawsuit.

About David Leopold
Past President American Immigration Lawyers Association (AILA), In-the-Trenches practicing immigration Attorney, Blogger, Activist, Photographer, Educator, World Traveler. All opinions are my own.

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