The Clever Way Conservatives Chip Away At Progressive Victories

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.

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