The Judge Who Halted Obama's Immigration Reform

U.S. President Barack Obama (R) participates in the taping of an MSNBC/Telemundo town hall discussion on immigration with host Jose Diaz-Balart (L) at Florida International University in Miami, February 25, 2015. Jonathan Ernst/Reuters

"This is just one federal judge," President Barack Obama said on the night of February 25 at a Miami Town Hall on immigration reform. "We have appealed it very aggressively. We're going to be as aggressive as we can."

Brownsville, Texas, Judge Andrew S. Hanen is a former Houston attorney and partner in his own firm. He replaced Filemon Vela, Sr., a Lower Rio Grande Valley native whose family traced its history to mid-1700 Spanish land grants.

"We call him Double-Bush," a Brownsville lawyer told me. "He was appointed by the first President Bush but wasn't confirmed. Then he was appointed again by George W. Bush and was confirmed. So we knew he would be conservative. We didn't know how extreme he would be on immigration issues."

On February 16, Hanen issued a temporary restraining order blocking Obama's executive action on deportation of undocumented parents of American citizens or permanent legal residents. Texas Governor Greg Abbott was the state's attorney general when he sued the Obama administration in December 2014 in Brownsville, a short walk across the shallow Rio Grande from Matamoros, Mexico.

Abbott chose that court for one specific reason. Hanen was the one federal judge in the state who was almost certain to deliver the decision Abbott and his co-plaintiffs wanted. Twenty-five governors or attorneys general joined Texas in the suit. All Republicans, they were challenging an executive action that extended temporary resident status to 4 million undocumented residents of the U.S.

For these plaintiffs, filing in Brownsville was as good as forum shopping gets. "He can be a good reasonable judge on some issues," said an attorney who has tried cases in Hanen's court. "But not on immigration."

"The Way He Sees Immigrants"

Five attorneys I interviewed, all who have appeared before Hanen, were in agreement about his rulings on immigrant issues. The attorneys requested their names be withheld. Three of them are quoted in this story.

The judge's animus towards immigrants, one lawyer said, is evident in his written opinions. He referred me to Hanen's February 16 immigration decision.

"That ruling was not about immigration," the lawyer said. "The core issue is whether a federal agency can establish these sort of enforcement authorities. The judge says that in the beginning of the opinion. So why are there 50 pages on the advantages and disadvantages of illegal immigration?"

The opinion is indeed a disquisition on illegal immigration.

It details the financial burden undocumented immigrants impose on states, from uncompensated emergency-room expenses to the cost of educating immigrants in public schools.

"Evidence shows that Texas spends $9,473 to educate each illegal alien child.… Texas also complains of the millions of dollars it must spend each year in providing uncompensated health care for these increasing numbers of undocumented workers."

It characterizes immigrants as a burgeoning criminal class:

"This influx, for example, is causing the States to experience severe law enforcement problems … And in [Arizona's] most populous county, these aliens are responsible for disproportionate share of serious crime."

The opinion also warns of a demographic explosion:

"In 1992, the Attorney General estimated that the country's immigrant population was as low as three million individuals. Today, California alone is said to have at least that many illegal aliens residing within its borders."

Is the opinion reflective of Hanen's beliefs about immigrants?

"He's not from here. He doesn't see any of the decent, wonderful people who live here," the lawyer who described him as "Double Bush" said. "There are only two judges in Brownsville and the other judge has taken senior status. So Hanen gets all the drug dealers and traffickers. That's the way he sees immigrants."

The second attorney quoted above agreed:

"The vast majority of his cases, day in and day out, are drug dealers, repeat illegal entries, sex traffickers, repeat illegal entries. That influences his views on immigration in all the civil cases he manages."

Anything But Ordinary

Abbott—who has described his typical workday as, "I go into the office, I sue the federal government, and I go home"—was aware of Hanen's rulings on immigration. He was also keenly aware of an immigration-related criminal case the judge was concluding at the time Abbott filed his immigration lawsuit.

In 2013, a "resident alien" woman living in the region was apprehended while smuggling a 10-year-old Salvadoran girl across the international bridge at Brownsville. The child's mother, undocumented and living in Virginia, had paid $8,500 for the woman to bring her daughter from El Salvador to the U.S.

Hanen sentenced the woman who brought the child into the United States, an ordinary criminal case on the Mexican border. What followed was anything but ordinary.

After the sentencing hearing, the judge issued an order that had no binding legal authority and was directed at the Department of Homeland Security (DHS)—not a party in the case. Although reuniting children with their parents was a common DHS practice at the time, in his 10-page opinion Hanen described the act as a crime committed by federal officials.

"Instead of arresting [the mother] for instigating the conspiracy to violate our border security laws, the DHS delivered her child to her, thus completing the mission of the criminal conspiracy. It did not arrest her. It did not prosecute her," he wrote. "The taxpayers of the United States pay for delivering these minors."

The judge's written order was followed by a flood of news reports from right-wing media outlets. The Washington Times ran its story under a headline that read: "Homeland Security helps smuggle illegal immigrant children into the U.S." National Review reported that a federal judge has issued a "searing indictment of the Obama administration's immigration policy."

Brietbart News reported: "A United States federal judge has accused Barack Obama's Department of Homeland Security of being complicit in helping Mexican drug cartels and felons inside America smuggle illegal aliens into the country."

Missing in conservative news outlets' framing of Hanen's order was a disclaimer that stands in contrast to the February 16, 2015, ruling on the Obama administration's immigration reform. "This court takes no position on immigration reform, nor should one read this opinion as commentary on that issue," the judge wrote. "That is a subject laced with controversy and is a matter of much political debate which is not the province of the judicial branch."

Shaping Policy From the Bench

In his current decision on the Obama's immigration policy, Hanen makes immigration the province of the judicial branch.

"Consider what he did," the second lawyer quoted said. "To get a temporary injunction, you have to prove irreparable harm. States have to show they would suffer irreparable harm. But the harm he cites is that it would cost Texas $173 each to issue drivers licenses to a new class of immigrants. That's money. Money is the quintessential reparable harm."

"Temporary," he added, is a relative term. "Immigration advocates are saying that it's just an injunction. It's not the decision on the case. If they undo the injunction, then the case continues. The programs were not declared unconstitutional.

"But for the plaintiffs, it's a huge victory. This is what they wanted. Who cares what they are doing two or three years from now when there is another president? When the case is resolved? They wanted to stop this and they did it—36 hours before the programs were going to come in force. That's a huge political victory for them."

If Obama decides to appeal, he will have to do so in the Fifth Circuit in New Orleans, one of the most conservative (and whitest) appellate benches in the nation. Twelve of the 15 active judges on the court were appointed by Ronald Reagan, George H.W. Bush and George W. Bush.

Republican presidents select judges who are young and conservative, like Hanen who was confirmed to the federal bench at age 48. (He was 37 when Bush I appointed him in 1992.) These judges shape public policy long after the presidents who appointed them are out of office.

Lou Dubose is editor of the Washington Spectator. This article first appeared on the Washington Spectator website.