Nonetheless, the opinion is worth noting for three reasons: first, what it says about the depressing politicization of the federal judiciary; second, and related, what it suggests about the conservative face of judicial activism; third, what its implications may be for the coming showdown on funding for the Department of Homeland Security.
The New York Times report on the ruling contained a jarring phrase, describing its author, U.S. District Judge Andrew Hanen, as “an outspoken critic of the administration on immigration policy.” My instinct was that the reporter had gone too far in that characterization; surely, a federal judge — even a federal judge appointed by George W. Bush — could not fairly be described that way.
Turns out, he can. Hanen sits in Brownsville, Tex., on the border with Mexico, and it can fairly be assumed it was no accident that the 26 states challenging the executive actions sued in that court, where they had a 50/50 chance of having the case heard by Hanen. (The other judge in Brownsville is a Bill Clinton appointee.)
Hanen has a remarkable history of blasting the Department of Homeland Security for what he views as its lax approach to immigration enforcement. In his court, where you stand depends, literally, on where he sits — Hanen’s rulings bristle with frustration over the influx of illegal immigrants at the border and what he views as the feckless governmental policies in dealing with them.
In a 2013 case involving the smuggling of a 10-year-old girl from El Salvador, Hanen went after DHS for reuniting the girl with her undocumented mother, rather than prosecuting the mother for having hired the trafficker. “This court is quite concerned with the apparent policy of the Department of Homeland Security . . . of completing the criminal mission of individuals who are violating the border security of the United States,” Hanen wrote.
As to that ruling, its weakest link is its strained conclusion that Texas, at least, had legal standing to challenge Obama’s actions. Time was, conservatives, and conservative judges, were most reluctant to grant standing, an approach in keeping with their conception of the modest judicial role.
So how did Hanen deal with the federal government’s argument that the states had failed to show the individual injury required to allow them to challenge the executive actions?
It came down — this is not a joke — to driver’s licenses. Texas argued that the expanded class of individuals eligible to remain in the country would be entitled to apply for licenses, and that the $24 fee for obtaining a license did not cover the state’s actual cost. Thus, Hanen found, the states have shown the the program “will directly injure the proprietary interest of their driver’s license programs and cost the states badly needed funds.”
Hanen’s conclusion that he should prevent the immigration actions from going into effect rests on a similarly slender reed. He concluded that an injunction was justified because the states could suffer “irreparable harm” in the form of having to issue driver’s licenses and other benefits.
Seriously, the irreparable harm to Texas is that it spends some money on driver’s licenses? Please, you conservatives who applaud this outcome — not another word about judicial activism.
Finally, because the clock is ticking on funding for the Department of Homeland Security, Hanen’s ruling raises the question of whether it offers a face-saving exit to Republicans seeking to avoid a shutdown or instead will further inflame conservatives.
My answer is: both. Those who rail against presidential usurpation of authority will seize on Hanen’s opinion to assert that they cannot appropriate a dime for the Department of Homeland Security. (No matter that Hanen’s opinion only reached the not-so-sexy topic of whether the administration’s actions complied with the, yawn, Administrative Procedure Act, not whether they overstepped constitutional boundaries.)
The cannier move would be for Senate Republicans to seize on the case as an escape from their untenable corner: The executive actions are under court review, now we can move on with funding essential government services. Smarter? Yes. More likely? Not in the current poisonously partisan environment.