Earlier this month, U.S. Citizenship and Immigration Services was supposed to start accepting applications for the Deferred Action for Parents of Americans and Legal Permanent Residents program, otherwise known as DAPA. Instead, the DAPA program, along with an expansion of the Deferred Action for Childhood Arrivals, or DACA, program, remains blocked since February by a forum-shopped judge, U.S. District Judge Andrew Hanen. This week, the 5th Circuit Court of Appeals denied the emergency stay request filed by the U.S. Department of Justice to lift the injunction currently blocking the implementation of deferred action programs DACA and DAPA.
Together, the DACA expansion and DAPA programs would have allowed more than five million parents of citizen and permanent resident children, and DREAMers—young unauthorized immigrants—to seek a discretionary reprieve from deportation and a temporary work permit. Instead of getting the peace of mind and stability these programs would offer to people without legal status, millions of American families are now stuck in legal limbo as the case Texas v. U.S. winds its way through the courts. This political agenda is affecting millions of American families while choking our nation’s economic growth.
Texas v. U.S. is only the latest evidence of a sustained attempt by some conservative interests to leverage the courts to hamper public policy and achieve policy outcomes they were unable to attain legislatively. In this instance, even some Senate Republicans once supported comprehensive immigration reform in the Senate, only to later back away from their support after seeing conservatives in the House fail to call it up for a vote.
This same dynamic has played out elsewhere—most notably with regard to Obamacare and climate change: Where courts are starved of the necessary resources to hear cases due to unfilled judicial vacancies, plaintiffs find ideologically-aligned judges to hear their cases. In other words: Federal courts matter, and conservatives know it.
Conservatives have long recognized the importance of the federal courts. For example, the 30-year-old Federalist Society, the leading conservative lawyers group, has played a prominent role in promoting legal attacks on progressive causes. Indeed, the federal judiciary still bears the marks of President George W. Bush’s greatest judicial legacy, appointing many of the conservative legal movement’s brightest young minds to the federal bench. Ten years into the Roberts Court, the U.S. Supreme Court has gutted the important protections of the Voting Rights Act of 1965, undermined our campaign finance system, and upheld gender-based pay discrimination, among other significant decisions.
One of the biggest cases before the Supreme Court this year, King v. Burwell, showcases the true impacts of this legacy. More than five years since its passage, the Affordable Care Act is still under attack. Even after the law was previously upheld by the Supreme Court, there is still an effort, as columnist George Will describes, to “blow Obamacare to smithereens.” King is a lawsuit that seeks to strip premium tax credits from people who live in states with a federal insurance marketplace under the ACA. Doing so could cause health care premiums to spike, causing a so-called death spiral of higher premiums for fewer, sicker customers. For Brian Beutler of the New Republic, the fictitious wall “separating political and legal arguments is breaking down in King, because the challenge itself is such a farce.” The impact of a poor decision, however, will be that millions of Americans lose their health insurance, spiking premiums and gutting protections for millions of others.
There is a similar legal attack on the U.S. Environmental Protection Agency’s proposed Clean Power Plan. This challenge follows a similarly aggressive legal strategy—in two separate lawsuits, coal companies and conservative state attorneys general have sued the EPA over the proposed plan, one that is not expected to be finalized until this summer. To challenge the president’s climate change agenda, conservatives have turned to the courts as a first resort to block the final rule from going into effect, as they know their legislative prospects are dim.
As with health care and climate change, some conservatives have used the federal court to undercut the DHS immigration directives announced by President Obama in November. In bringing their lawsuit, Texas and 25 other state Attorneys General and Governors “forum shopped,” choosing to bring their case in the Southern District of Texas, and hand-picked Judge Hanen.
In previous opinions, Judge Hanen—a George W. Bush appointee—has shown animus both toward immigrants and toward the Department of Homeland Security. Hanen has routinely used his opinions to rail against immigration policy, even when the decisions themselves had little to do with immigration. In one case, he went out of his way to criticize a decision not to bring immigration charges against an undocumented mother who was reunited with her daughter, stating that nothing would prohibit bringing criminal charges against the mother after reuniting her with her daughter.
And it is not only the district court that is so heavily stacked against the DACA and DAPA programs, but the Fifth Circuit court of appeals, in which the Southern District of Texas falls, as well. According to the American Bar Association Journal, the Fifth Circuit is “one of the most controversial, rancorous, dysfunctional, staunchly conservative and important appellate courts in the country.”
The Department of Justice appealed to this Fifth Circuit to seek an emergency stay of Judge Hanen’s injunction stopping the DACA expansion and DAPA programs from going into effect. The three-judge panel picked to hear the review includes Judge Jerry E. Smith, who once described himself, somewhat tongue-in-cheek, as a former “rightwing activist,” and Judge Jennifer Elrod, an appointee of President George W. Bush, who is well-known for reinstating Texas’ restrictive abortion law last year. Judges Smith and Elroy were two of the five judges who dissented from a 2013 ruling striking down an anti-immigrant local ordinance passed by the City of Farmer’s Branch, TX.
The plaintiffs in this case knew, with a reasonable degree of certainty, that by filing their suit in the Brownsville-based district court they would appear before their ideal judges. How could they be so sure? The Brownsville-based district court has only two federal district court judges, with Judge Hanen as the only “active status” judge.
Texas has the most judicial vacancies in the country, and like so many other places across the nation, is facing a dire judicial vacancy crisis. Texas currently has seven federal district court and two circuit court vacancies. One seat in the Southern District of Texas, the same district court as Judge Hanen, has been vacant for nearly 1,800 days. Seven of these vacancies have been classified as “judicial emergencies” by the Administrative Office of the U.S. Courts, including both circuit court vacancies. Unsurprisingly, Texas has the most judicial emergencies in the country. These judicial emergencies are the judicial districts where “judges are overworked and where justice is being significantly delayed for the American public.” For the 10 vacancies, Texas Senators Cruz and Coryn have only nominated one candidate, Jose Olvera, who was only confirmed last week. Failing to fill these pressing vacancies has also allowed conservative lawyers to pick and choose where to bring their newest case.
The federal courts should be beyond partisanship. The real-world consequences, as in Texas v. U.S., are clear: Delaying the DACA expansion and DAPA programs not only harms millions of American families, but fails to capture the sizeable economic benefits of granting deferred action. Failing to nominate and confirm judges to federal vacancies, including judicial emergencies, also denies aggrieved parties their day in court, imposes unnecessary financial burdens, and denies access to justice to all.
Instead of promoting justice and fairness for all, conservative activists are turning to overworked and understaffed federal courts as a first resort to promote policy outcomes they could have failed to achieve through Congress. Ultimately, it is justice that suffers and Americans families who are hurt.
Michele L. Jawando is the Vice President for Legal Progress at American Progress.
Why do you think Bush tried to fire every single AG in every state that wasn’t Galt friendly.
The laws on the local and state levels are just a mess and a mish mash in their attempt to negate our Federation.
There are still ‘dry counties’ in the USA where they never overturned prohibition.
It’s not really clever so much as conservatives use every tool available to achieve their policy aims, and only respect offices/institutions when said support those aims. Stacking the judiciary is just another way that allows them to game the system to get their way regardless of how the rest of the political system is arrayed.
An excellent article, but the author failed to emphasize one other important point. The Federalist Society has not only “…played a prominent role in promoting legal attacks on progressive causes,” the Society has also played a key role as a federal judicial system talent source for the most conservative justices.
They spot promising talent early and groom them for the future. Then when the GOP has the reins of power in the White House the Society has a handy list of good (from their viewpoint) candidates ready to push forward for appointments to fill in gaps throughout the system. John Roberts himself is a prime example of this system.
And even when the GOP does not have the lever of power immediately at hand, they use the system to block appointments of anyone with remotely progressive credentials, while continually pushing candidates whose learnings are as far right as t hey can get away with.
They have been extremely successful in driving this system for several decades now and the American judicial system reflects it in increasingly conservative justices in lifetime posts throughout and a powerful tool to go after even those few successes progressives win at the ballot box or in Congress.
It is a reflection of the fact that whatever else its shortcomings, the Conservative movement has a very long-term vision and has proven exceptionally skilled at winning battles even as the electorate’s views and their actual numbers trend in opposite directions.
Courts, gerrymandering, voter ID laws, blocking progressive judges and views. They are losing battles, but winning the war.
The AGs who got fired lost their jobs because they were not (in the eyes of GOP zealots and the Bush Justice Department) being zealous enough in their pursuit of evidence of voter fraud.
They were pressured to do so. Many did and found nothing. They reported back and were told, look again and look harder. Some refused saying that it was not a critical issue, they had found nothing and they didn’t want to waste limited time and resources continuing a fruitless search.
Result: Fired.
Result: Refusal of the Justice Department to pursue claims of voter discrimination
Result: Pressure at the state level (often successful) to pass voter ID laws, despite any evidence of fraud.
I can’t ‘like’ this . . . but I can agree.
I met an aide to Pete Wilson in 1981. He explained that he had just attended a strategic planning session. I was only 18 at the time and truth be told he was kind of a 20-something smirking frat boy who was trying to pick me up in the bar at the Sir Francis Drake Hotel in Union Square San Francisco. He wanted to impress me as well as demonstrate what an ‘idiot’ I was for believing that social security would apply to me at some point in the future. (I’m now 53 . . . and I still believe in Social Security).
I’ve wished ever since that I had put down what he said to me that day in a sealed envelope.
He explained to me how they determined during this session the best way to dismantle the entirety of the social safety and business regulatory laws enacted to protect workers and the environment. (I remember it vividly because I had never heard of ‘strategic planning’ until that day).
He said: "We want to get rid of social security and all social benefit programs. We have three high level strategies to achieve this goal:
We need to convince the general public that the government gives money to undeserving black people. That it takes money out of their pockets and raises prices to pay wages to people who don’t deserve it and that they will personally benefit if they cut wages and benefits to “those people” because they are more deserving and hardworking and uniquely capable and exceptional who did everything on their own without help.
We need to drive home that at the very worst the government is there to actively harm them as hardworking americans and at the very best it is incompetent and useless. That the general public gets no benefit at all from the government and that the government is really there to harm them and to take from them; and
That at all times that the media is unrepentantly liberal and out of touch with the concerns of real americans. (on this point, he leaned in and said–we know the media is very status quo but because by the end of the civil rights movement most supported equal rights and it doesn’t sound very good not to support civil/equal rights we will just make the word “liberal” a dirty word so that people feel uncomfortable and ashamed to be called liberal.
I think back on this day constantly. How successful their three high level goals were and how they really used the racist nature of white middle class Americans to roll back the very worker’s rights and supports earned by just one generation before them. This same narrative is still in play today.