DOJ to Judge Hanen: There was no bad faith, and your order is illegal

|The Volokh Conspiracy |

Having blogged recently about Judge Andrew Hanen's odd order in the DAPA immigration case, in which Hanen ordered the creation of a new continuing legal education requirement for Justice Department lawyers, I thought I would flag the Justice Department's relatively short response to the order that was filed this morning. The Justice Department is seeking a stay of the order, which presumably will be denied quickly (and perhaps angrily) but will then let the Justice Department bring up the issue to the Fifth Circuit. The gist of the Justice Department's argument is that there was no bad faith in the representations to the court by Justice Department lawyers and that Hanen's order was itself illegal because it exceeded his authority. From the Justice Department's memorandum:

The Department of Justice is committed to maintaining high standards of ethical conduct and professionalism for its attorneys. Department policy requires, with few exceptions, that its attorneys annually complete at least four hours of professionalism training (above and beyond any State bar requirements), including at least two hours of instruction in professional responsibility and one hour in government ethics, to ensure that Department of Justice attorneys receive the training needed to perform at the high level of professional and ethical standards expected of them. Declaration of Lee J. Lofthus, dated May 31, 2016 (filed herewith) ("Lofthus Decl."), ¶¶ 6, 8.3

We submit that this Court has no inherent authority to superimpose additional ethics-training requirements applicable to more than 3,000 Department of Justice attorneys, see id., ¶ 11, for the purpose of assuring that Department lawyers meet qualifications of the Court's choosing when they appear before other tribunals, such as state and federal courts in the Plaintiff States, see May 19 Order at 24. "[T]he limited reach of [a] court's inherent authority" does not extend to policing proceedings in other courts that do not threaten its own judicial authority in the cases before it. Positive Software Sols., Inc. v. New Century Mortg. Corp., 619 F.3d 458, 460-61 (5th Cir. 2010) (citing Maxxam, 523 F.3d at 593); see also In re FEMA Trailer, 401 F. App'x at 883-84. Rather, the purpose of the inherent power is "the control of the litigation before [the court]." Maxxam, 523 F.3d at 591. It cannot be said that judicial supervision over the ethical training of more than 3,000 Department of Justice attorneys who may appear in courts (state or federal) located in one or more of twenty-six States is essential to preserve the Court's authority over the cases pending, or the counsel appearing, before it. Positive Software, 619 F.3d at 460; In re FEMA Trailer, 401 F. App'x at 884.

The Court's Order also exceeds its authority because compelling the Attorney General to implement a prescribed supplementary program of legal ethics instruction for over 3,000 Department Attorneys unconnected to this case, and to appoint an official to implement the Court's order, contravenes the Constitution's separation of powers. "[I]f any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws." Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492 (2010); see Myers v. United States, 272 U.S. 52, 164 (1926). By imposing a different standard as to the qualifications that Department of Justice attorneys must meet in order to appear on behalf of the United States in state and federal courts located in the twenty-six Plaintiff States, the Government respectfully submits that the Court has interfered with the Attorney General's executive authority both to determine who will appear on behalf of the United States in litigation, see 28 U.S.C. § 517, and to direct the attorneys under her supervision in the performance of their duties, id. § 519. We therefore submit that the Court's May 19 Order encroaches on central prerogatives of the Executive Branch as established by the Constitution and statutes, in violation of the separation of powers. See Miller v. French, 530 U.S. 327, 341 (2000); see also Bond v. United States, 564 U.S. 211, 222 (2011); New York v. United States, 505 U.S. 144, 182 (1992).

As always, stay tuned.