Two judicial rulings yesterday, one in Obama’s favor and one against. However, the ruling released late last night shows a crafty piece of judicial chess.

The first ruling yesterday was a 5th Circuit Court of Appeals decision in Mississippi VS DHS (more here). The 5th circuit ruled against the State of Mississippi, and in favor of the Obama DOJ, by essentially ruling the State failed to prove a burden of harm.

The second aspect inherent within the same 5th CCA ruling disregarded concerns of ICE/DHS retaliation -against border patrol enforcement- by asserting DHS rules forbid the retaliation; ergo the concerns were unfounded.

In the second issue, the ICE agents’ argument that they would receive retribution if they detained an illegal immigrant eligible for DACA, the court sided with ICE and DHS referencing handbooks and rules which forbid the administration from retribution.  (link)

However, in the second case, the ruling late last night, Texas vs DHS, under the authority of Judge Andrew Hanen, the expanded Obama Executive Action was blocked from implementation in February.

Judge Hanen issued an emergency injunction stopping the expanded deferment authorization as  outlined in President Obama’s November 2014 executive action.

Since the initial ruling the DOJ was now arguing for a lifting of that injunction, and Judge Hanen was having none of it.

A significant statement from Judge Hanen toward the DOJ attorneys was his admonishment for their prior misrepresentations to the court regarding implementation taking place.  The DOJ had previously stated in court that DHS was not implementing the new “expanded executive action” yet, and any injunction would stop any adverse action.

It was later discovered –by an admission to the court– that DHS had, in actuality, already begun to implement the November “executive action”. Judge Hanen was understandably angered by the misrepresentation.

The entire ruling last night is embedded here for your review.

[scribd id=261200521 key=key-zKSkQMAj0tCjpo0MmwBU mode=scroll]

However, I would like to draw your attention to the timing, and aspect of the Hanen ruling which overlaps with the earlier 5th Circuit Court of Appeals ruling.

Judge Hanen knows that his decision is going to be appealed to the same federal circuit court of appeals who ruled earlier in the day. Hanen is obviously fully anticipating his ruling being challenged in the 5th CCA, and it appears he keenly awaited their ruling in the Mississippi case to see how they responded to the more innocuous aspect of the Border Patrol Retaliation concern.

Hanen was not concerned about the issue of provable harm because in his court the harm was already outlined (expanded work authorization or a new category of eligible employment status).   Hanen was more interested to see how the 5th CCA would rule on the concern about retaliation for border patrol agents who did not comply with the expanded executive action.

The DHS/ICE execution aspect, and the consequences for ICE Agent/Border Patrol non-compliance is a consideration in both cases.   In the Mississippi case the 5th CCA disregarded the concern as unfounded and without merit.

[Page 14 …]  The Agents claim a number of different injuries. First, they allege that they are being compelled to violate their oath to uphold the laws of the United States if they follow the Directive. Second, the burden of complying with DACA is causing injury to the Agents. Finally, the Agents argue that they are threatened with employment sanctions if they do not follow the Directive.

[…]  As we stated above, Plaintiffs must allege an injury that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.”  The threat of a future injury can suffice as a sufficient injury in fact, but only if it is “certainly impending.” “[W]e have repeatedly reiterated that . . . ‘[a]llegations of possible future injury’ [is] not sufficient.”   

We begin with the observation that Plaintiffs have provided no evidence that any agent has been sanctioned or is threatened with employment sanctions for detaining an alien and refusing to grant deferred action under DACA. (link)

By Judge Hanen waiting to see how the 5th CCA ruled in the Mississippi case he was better positioned to formulate his order as to withstand a similar scrutiny (argument) by the appellate court. He did so brilliantly.

You’ll note in his ruling (pgs 4, 5, 6) Judge Hanen cited a Town Hall discussion Obama held with Univision.  The timing of the Town Hall was between Hanen’s injunction order blocking implementation, and the affirmation of that injunctive order last night.

Why is that important? Judge Hanen is using President Obama’s own words about enforcement to deconstruct the 5th CCA decision in the Mississippi case.

Note excerpt from Hanen ruling:

In response to a question from an individual upset over a deportation action, the President said:

THE PRESIDENT: “I would have to know the details of what exactly happened. But what I can tell you is that until we pass a law through Congress, the executive actions that we’ve taken are not going to be permanent; they’re temporary. We are now implementing a new prioritization. There are going to be some jurisdictions, and there may be individual ICE officials or Border Patrol who aren’t paying attention to our new directives. But they’re going to be answerable to the head of the Department of Homeland Security, because he’s been very clear about what our priorities should be. And I’ve been very clear about what our priorities should be.”

MR. DIAZ-BALART [the moderator]: “But what are the consequences? Because how do you ensure that ICE agents or Border Patrol won’t be deporting people like this? I mean, what are the consequences?”

THE PRESIDENT: “José, look, the bottom line is, is that if somebody is working for ICE and there is a policy and they don’t follow the policy, there are going to be consequences to it. So I can’t speak to a specific problem. What I can talk about is what’s true in the government, generally.

In the U.S. military, when you get an order, you’re expected to follow it. It doesn’t mean that everybody follows the order. If they don’t, they’ve got a problem. And the same is going to be true with respect to the policies that we’re putting forward“.

Press Release, Remarks by the President in Immigration Town Hall – Miami, FL, The White House Office of the Press Secretary (Feb. 25, 2015), available at https://www.whitehouse.gov/the-press-office/2015/02/25/remarks-president-immigration-town-hall-miami-fl (emphasis added).

[Judge Hanen continues…] The President’s message, specifically to those law enforcement officials employed within the Executive Branch, and more generally to the nation, is clear. First, immigration laws (INA), which those officials are charged with enforcing, are not to be enforced when those laws conflict with the 2014 DHS Directive. Second, the criteria set out in that Directive are mandatory. Third, if DHS officials (or other Executive Branch officials) fail to follow the specified criteria, there will be consequences for this failure.

Just as there would be consequences if they were in the military and disobeyed an order from the Commander in Chief. In summary, the Chief Executive has ordered that the laws requiring removal of illegal immigrants that conflict with the 2014 DHS Directive are not to be enforced, and that anyone who attempts to do so will be punished.

BOOM ! By using Obama’s own words Judge Hanen deconstructs the previous 5th CCA assertion of “no possibility for punitive harm” in the Mississippi ruling; and simultaneously puts an affirmative consideration into his own ruling – which proves the “possibility for punitive harm” in the Texas case before him which he is deciding.

Brilliant Judicial Chess Move.

By waiting to see the outcome of the Mississippi case (5th Circuit Appeal) Judge Hanen has essentially removed one weapon which the DOJ attorneys could use against his own ruling when it enters the same appellate court.