More About New Conservative Judicial Hero Andrew Hanen

While we wait to see if federal district court judge Andrew Hanen of Brownville, Texas’, moment in the sunny glare of conservative adulation lasts a few days or a few months, WaPo’s Ruth Marcus has a nice brisk work-up of the demons that attracted plaintiffs to his court to strike out at the president’s immigration policies, and the most dubious part of his ruling:

Hanen has a remarkable history of blasting the Department of Homeland Security for what he views as its lax approach to immigration enforcement. In his court, where you stand depends, literally, on where he sits — Hanen’s rulings bristle with frustration over the influx of illegal immigrants at the border and what he views as the feckless governmental policies in dealing with them.

In a 2013 case involving the smuggling of a 10-year-old girl from El Salvador, Hanen went after DHS for reuniting the girl with her undocumented mother, rather than prosecuting the mother for having hired the trafficker. “This court is quite concerned with the apparent policy of the Department of Homeland Security … of completing the criminal mission of individuals who are violating the border security of the United States,” Hanen wrote.

The plaintiffs challenging Obama’s plan “got the judge they wanted and they got the ruling they wanted,” Frank Sharry, executive director of America’s Voice, an immigration reform group, told me.

As to that ruling, its weakest link is its strained conclusion that Texas, at least, had legal standing to challenge Obama’s actions. Time was, conservatives, and conservative judges, were most reluctant to grant standing, an approach in keeping with their conception of the modest judicial role.

So how did Hanen deal with the federal government’s argument that the states had failed to show the individual injury required to allow them to challenge the executive actions?

It came down — this is not a joke — to driver’s licenses. Texas argued that the expanded class of individuals eligible to remain in the country would be entitled to apply for licenses, and that the $24 fee for obtaining a license did not cover the state’s actual cost. Thus, Hanen found, the states have shown that the program “will directly injure the proprietary interest of their driver’s license programs and cost the states badly needed funds.”

Hanen’s conclusion that he should prevent the immigration actions from going into effect rests on a similarly slender reed. He concluded that an injunction was justified because the states could suffer “irreparable harm” in the form of having to issue driver’s licenses and other benefits.

Seriously, the irreparable harm to Texas is that it spends some money on driver’s licenses? Please, you conservatives who applaud this outcome — not another word about judicial activism.

The dirty truth of judicial politics is that 98% of the people who express opinions about judicial decisions don’t give a damn about consistent application of legal principles; they’re mainly interested in whose team won. But I’d argue this cynical approach is especially outrageous when adopted by people who claim to be defending the Constitution against the temporary passions of the masses.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.