Disregard of legal standards that apply to everyone to achieve immediate political goals is never good. Politicization tends towards pernicious, unpredictable results. It is particularly erosive when it infects the administration of justice. Developments in Texas v. United States, a federal case testing the limits of the President’s and Congress’s authority to set immigration policy, demonstrate just how—and how much—politicization can undermine the rule of law.
Back in May 2016, Judge Andrew Hanen of the Southern District of Texas found that lawyers representing the United States made a series of misstatements to the court and the 26 plaintiff States and that those lawyers knew the truth when they spoke. In 2014 and 2015 those lawyers misrepresented, among other things, timing under an executive order that expanded an immigration program to millions of additional persons, most of whom were parents of children born here as citizens, for whom permissible work periods were expanded to three years. Arising from the interplay of immigration, constitutional, and administrative law, the legal issues in Texas v. United States were complex.
But the problematic misrepresentations by the Justice Department’s lawyers were straightforward. The lawyers for the United States said that the immigration authorities wouldn’t start implementing the program before February 2015. That led the court and 26 States to forego extraordinary proceedings for emergency relief that might have resulted in a restraining order expressly preventing implementation by the federal government. The same lawyers also misrepresented how many three-year extensions were at issue, and the government granted over 100,000 before the truth came out in court. “[T]he Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.” The misrepresentations enabled the government to do broadly what could have been expressly restrained.
The court, quite reasonably, asked Why? The DOJ gave several reasons, none sufficient. The scores of government lawyers working on the case “lost focus” on the facts which had “receded in memory or awareness.” That excuse gives away the cake: it admits a breach of every lawyer’s duty of competence. The government’s other excuse was that many lawyers were responsible for the case, spread across multiple agencies. The government’s disingenuous conclusion was that any remedy should only apply to the handful of lawyers who appeared in court. Two weeks ago, on the last full day of the Obama administration, the government lost. The court ruled, “[a]t the very least, the Justice Department should, in an organized manner, require its attorneys to review and understand each state’s ethical rules before those attorneys appear in that state. This is a minimum requirement.”
Indeed, the court’s requirement is, if anything, too minimal and the Justice Department escaped by the skin of its teeth the Court’s more fulsome wrath from May. Commentators who previously administered Justice in prior Republican and Democratic administrations, however, suggest a more plausible, but still insufficient, reason for the misconduct: politicization at the Department of Justice. That should trouble everyone, regardless of party affiliation.
The federal government’s omission of facts that have “receded” or “lost focus” in the service of a legal victory for its current political masters must never be acceptable, minimized, or considered “normal” mistakes, regardless of their complexity. Current events show why. The most troubling aspects of Texas v. United States arose during the Obama administration. But headlines during the first weeks of the Trump administration reveal the political staying power of at least four horsemen: Executive Orders, judicial review, immigration, and administration representations. Politicization will undermine the validity of them all.
Mike Geske is counsel at Cause of Action Institute