Constitution Check: How far can a federal judge go to punish lawyers’ ethical misconduct?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the controversy over a Texas-based federal judge who has filed sanctions against Justice Department lawyers.

THE STATEMENTS AT ISSUE:

“Federal judge Andrew S. Hanen did not have enough with blocking [President Obama’s immigration orders].  He has now assigned himself the role of ethics supervisor of the Department of Justice and manager of the personal information of over 100,000 immigrants benefitting from the [President’s] actions….It is unusual to punish someone who has not committed any faults, like the 100,000 recipients [of deportation delay and work permits].”

– English translation of an editorial May 23 in La Opinion, which describes itself as the nation’s largest Spanish language newspaper, reacting to the sweeping new order by a federal judge in Brownsville, Texas, in the case on the Obama delayed deportation policy.  Judge Hanen imposed broad remedies for what he concluded were serious and intentional ethical violations in his court by at least two Justice Department attorneys in 2014 and 2015.  His order came in the same case, United States v. Texas, that is now awaiting a Supreme Court ruling on the legality of the President’s policy.

"Whatever misconduct the United States and its lawyers may have committed does not warrant imposing on thousands of immigrants the fear of disclosure and the actual threat of being targeted by states whose hostility to [the President’s policy] is epitomized by their participation in this suit….We expect to take action in court to prevent private information submitted in good faith to the federal government from being released to hostile parties."

 – Excerpt from a news release on May 20 by Thomas A. Saenz, president and general counsel of the Mexican-American Legal Defense and Education Fund, in reaction to the new order by Judge Hanen.

WE CHECKED THE CONSTITUTION, AND…

No words or phrases in the Constitution spell out the scope of the power of a judge in a federal court to impose sanctions on attorneys who engage in ethical lapses in that judge’s presence.  It has long been understood, however, that the dignity of the court – a quality that is believed to be essential to a court’s work and to its ability to have its work widely accepted by the public – depends upon the judge having the authority to discipline misconduct that disturbs the tribunal’s decorum.

It is widely accepted, of course, that a judge can impose contempt-of-court sanctions on a misbehaving lawyer, without waiting for federal prosecutors to do so. That, in fact, is one of a series of potential disciplinary actions a federal judge can impose, under several federal laws.

But clearly the most expansive power exists under what is called the “inherent power of the court” to do what is necessary to be able to perform its function.  Whenever the phrase “inherent power” comes into play in a discussion of government authority, it conveys almost as much authority as a royal prerogative – its scope is said to lie largely within the discretion of the judge.

The Supreme Court engaged in a deep discussion of the concept of “inherent power” to preserve judicial decorum in a famous 1991 case, Chambers v. NASCO, Inc.   And, while the Justices split 5-to-4, “inherent power” won out over limited and specific grants under congressionally-approved rules for federal courts.

The majority in that case did stress, though, that the judge should use that awesome authority with care. “Because of their very potency,” the opinion said, “inherent powers must be exercised with restraint and discretion.”  In that case, the judge used that power only to impose on the misbehaving lawyer and his client a duty to pay the other party’s legal fees.

Would the Supreme Court still take that broad position today?  It is interesting to note that, among the nine Justices who took part in that 1991 decision, only one continues to serve on the court: Justice Anthony M. Kennedy.  And he was among the four dissenters.

The sweep of a judge’s authority in this area may well be tested for the actions last week by a federal judge in Brownsville,Texas – Andrew S. Hanen. He is the same judge who, early last year, blocked the enforcement of President Obama’s program to delay deportation of close to 4 million undocumented immigrants.  (That policy puts priority for deportation on people who pose threats to public safety and seeks to benefit people – youths and their parents -- who have lived peacefully, though illegally, in the country for years.)

The judge’s grievance with Justice Department lawyers was that they did not keep their word, after they had told him, and told the lawyers for the 26 states that sued to challenge the Obama policy, that the government would do nothing to implement the program until after the judge had a chance to decide whether to block its enforcement.  He has now concluded that he and the states had been duped.  It turned out that, before the judge issued that blocking order, some 108,000 young people were given three-year deferrals of potential deportation, along with a document allowing them to get jobs, even though none of them was entitled to more than a two-year delay (under a prior program whose legality is not now in question.)  It also turned out that more than 2,100 youths were given three-year deferrals even after the judge had ordered no enforcement.

While the complained-of misconduct occurred in late 2014 and early 2015, Judge Hanen has just now decided to take steps to sanction the government for what he considered to be deeply serious affronts to the court.

Although the Justice Department has taken steps to withdraw the extra-year grants to those who got that benefit after the judge barred enforcement, it has not taken similar action for the more than 100,000 who were granted those benefits prior to the judge’s order.   The Justice Department takes the position that those were not illegal, because enforcement had not yet been stopped when those benefits were extended.

Judge Hanen, however, is firmly convinced that he had specific assurances from the government’s lawyers that they would not issue any such benefits while the overall program was under review in his courts, and is firmly convinced that the lawyers intentionally went back on their word.

In the broadest part of his order, he has told the Justice Department to come up, by June 10, with a list of all of those who got the benefits and have not had them withdrawn.  He has insisted on having detailed personal information about each one of those individuals, and has said he may release them to the 26 states, eventually.

He also has ordered every Washington-based Justice Department lawyer who appears, over the next five years, in any federal or state court in any one of the 26 states to get training in ethics at classes every year during that period.   And he has ordered the Justice Department to draft new policies to make sure there are no further such ethical lapses in the future.

Judge Hanen has not spelled out the sources of the power he has exercised, but it is a fair bet that his order will be tested in court, to see whether “inherent powers” reach as far as he has presumably assumed that they do.