Did the Obama Administration Lie to the Federal Court About Implementation of Executive Amnesty?

We wrote here about State of Texas et al. v. United States, in which 26 states sued to enjoin the Obama administration from implementing its illegal executive amnesty program. On February 16, Judge Andrew Hanen granted the states’ motion for a preliminary injunction, barring the administration from taking any steps to effectuate the changes to the nation’s immigration laws that had been announced by the administration:

[T]his temporary injunction enjoins the implementation of the DAPA program that awards legal presence and additional benefits to the four million or more individuals potentially covered by the DAPA Memorandum and to the three expansions/additions to the DACA program also contained in the same DAPA Memorandum.

Since Judge Hanen’s order was issued, it has come to light that by the date of the order, the Obama administration had already granted expanded DACA benefits (three years rather than two years) to approximately 100,000 illegal aliens. The Department of Justice disclosed this fact to Judge Hanen in a surprise filing:

In a “Defendants’ Advisory” filed with Hanen’s court late Tuesday, the Justice Department notified the judge that it has already implemented significant parts of the Expanded DACA program, and indeed that it has already granted expanded DACA protections and work permits to “approximately 100,000” people.

The government’s lawyers essentially admitted that they were disclosing this fact because it was contrary to what they had previously told the court. That has led to a motion by the State of Texas to be allowed to conduct discovery to find out what happened. Here is Texas’s brief in support of that motion. It is damning:


The State quotes this colloquy with the court:

MS. HARTNETT [DOJ lawyer]: In that document [Defendants’ January 14 motion for extension of time] we reiterated that no applictions for the revised DACA — this is not even DAPA — revised DACA would be accepted until the 18th of February, and that no action would be taken on any of those applications until March the 4th.

THE COURT: But as far as you know, nothing is going to happen in the next three weeks?

MS. HARTNETT: No, Your Honor.

THE COURT: Okay. On either.

MS. HARTNETT: In terms of accepting applications or granting any up or down applications.


MS. HARTNETT: For revised DACA, just to be totally clear.

On the basis of that representation, the court extended the briefing schedule on the motion for a preliminary injunction. As the State’s brief explains cogently, if the State had known that the Obama administration was already moving forward with implementation of the revisions to DACA that were at issue in the case, it would have moved for a temporary restraining order to block such actions. No doubt such a motion would have been granted.

It seems beyond dispute that the Obama administration misrepresented to the federal court what it was doing (hence the “Defendants’ Advisory”). However, the word “lie” is a strong one. It may well be that the government’s lawyers were not aware of the zeal with which certain federal agencies had moved forward to re-write the nation’s immigration laws. Of course, lawyers should not make representations to courts unless they have verified that they are true. One way or another, it seems clear that the Obama administration misled the court and opposing counsel, and as a result has granted 100,000 applications that otherwise would have been barred by the court’s preliminary injunction. If my extensive experience with federal judges is typical, the court is likely to be unhappy with this state of affairs.

The damage the Obama administration has done to the United States falls into three broad categories: 1) its extreme leftism, 2) its incompetence, and 3) its lawlessness. It may well be that when historians assess the wreckage, the administration’s lawlessness is considered the most damaging quality of all.

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