When Republican state officials opposed to the immigration policy learned that George W. Bush-appointed Judge Andrew Hanen would hear their lawsuit challenging much of that policy, it was obvious that they had hit the jackpot. Hanen has a history of handing down opinions calling for harsher treatment of immigrants in cases that have only a tangential relationship to the views Hanen expresses in those opinions. In one case, he called the federal government’s decision to permit an undocumented mother to be reunited with her child without facing criminal charges a “dangerous course of action.”
So when Hanen ordered President Obama’s recently announced immigration policies halted, policies that include the Deferred Action for Parental Accountability (DAPA) program and that could enable nearly 5 million undocumented immigrants to temporarily live openly in the United States for a period of time, that decision was not a surprise.
Hanen did not stay his February 16 decision halting the new immigration policies, which was handed down just over a day before immigrants were supposed to begin registering to benefits from one of these policies (a stay would put a hold on his decision and allow these policies to take effect). As a result, a single judge in Texas who holds no elected office and who few Americans have ever heard of effectively prevented the United States of America from implementing a policy impacting millions of people. When the Justice Department requested a stay from Hanen, Hanen gave the plaintiffs seven days to respond to that request. On Monday evening, he handed down yet another order delaying resolution of that stay request — declaring that he would “not rule on any other pending motions” until he conducts a hearing on a different motion filed by the state officials. That hearing won’t take place until March 19.
Stay requests are subject to a multi-factor test, but the primary inquiry when a party requests a stay is whether that party has demonstrated a “substantial case on the merits.” The remaining factors overlap considerably with matters Hanen already considered in deciding to halt DAPA in the first place. For this reason, Hanen’s request for additional briefing and a considerable amount of time to consider the Justice Department’s motion for a stay is an odd request, as he is already familiar with the issues presented in the case and has, indeed, already decided several questions that are relevant to the issue of whether his original order should be stayed.
There is, however, a practical reason why a judge like Hanen, who appears to feel very strongly about thwarting President Obama in this particular case, would want to delay his resolution of the government’s stay request for as long as possible: Hanen may be able to prevent a higher court from ruling on the Justice Department’s stay request if he simply sits on that request and refuses to decide it.
Federal Rule of Appellate Procedure 8(a)(1) provides that “[a] party must ordinarily move first in the district court” for “a stay of the judgment or order of a district court pending appeal.” Thus, under normal circumstances, the Justice Department may not seek a stay of Hanen’s order from the United States Court of Appeals for the Fifth Circuit and, if necessary, the Supreme Court, until after they first ask Hanen to stay his own order. Moreover, in a normal case, when DOJ does request a stay from an appellate court, they must first show that the trial judge denied that request.
Rule 8 does account for certain unusual circumstances where an appeals court may bypass a trial judge and stay that judge’s order before the judge weighs in on the stay request — Hanen can be bypassed if “moving first in the district court would be impracticable” or if DOJ can show that Hanen “failed to afford the relief requested.” But motions asking an appeals court to bypass a trial judge are extraordinary motions. We searched the legal database Lexis and were only able to find one Fifth Circuit opinion where the court permitted such a bypass.
Nevertheless, given Hanen’s indication that he will delay resolution of the Justice Department’s stay request indefinitely, it is likely that DOJ will file a stay request in the Fifth Circuit soon — where they could argue that Hanen’s repeated decisions to delay resolution of their stay request amounts to a failure to “afford the relief requested.”
When DOJ does seek relief in the Fifth Circuit, they may want to consider making another, even more unusual request. Federal law provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” and federal appeals courts have, on very rare occasions, relied on this provision to remove judges from cases where their actions create an “appearance of partiality.”
Smart attorneys are reluctant to file a motion asking an appeals court to remove the trial judge from their case, as such motions typically are not granted and they anger the judge. In this case, however, Hanen has already displayed such disdain for the Obama administration’s policies that DOJ may have nothing to lose if they ask for him to be removed.
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