I have never heard of of a situation where [union employees] sued their supervisor and you for blocking them from following the law. They weren't complaining about pay, working conditions or benefits. [...] - Jefferson Beauregard Sessions
In an amazing display of "concern" for working union folk, Republican Senator Jefferson Beauregard Sessions is very concerned about the public sector union, led by one Chris Crane, that represents some ICE agents. Of course this is not a typical management-labor dispute over "pay, working conditions, or benefits." For if it was, we know what Jefferson Beauregard Sessions, or any Republican, would be saying. something like this:
Democrats in Congress are pushing to extend union protection to 43,000 federal airport security workers, reviving a debate that stalled the creation of the Department of Homeland Security and could now derail broad antiterrorism legislation. The proposal has provoked opposition from Senate Republicans and the Bush administration. It is the latest in a series of labor-related fights in Washington as Democrats try to use their new majority to push long-delayed proposals that benefit rank-and-file workers, like increasing the minimum wage. [...]So "flexibility to manage and deploy their workforce" is important when issues like "pay, working conditions or benefits" is at issue—no mooching unions then. But, as Jefferson Beauregard Sessions, makes clear, this is not about that. What is it about? It is about getting rid of the brown people:
“Existing authority permits T.S.A. the flexibility to manage and deploy their work force,” Scott Stanzel, the White House deputy press secretary, said. “We do think that it is important that T.S.A. maintain that flexibility for personnel performing key homeland security roles.”
Disgruntled Immigration and Customs Enforcement agents are suing their bosses over changes made to deportation policy by President Barack Obama. A lawsuit filed Thursday on behalf of 10 ICE agents against the head of the Department of Homeland Security, Janet Napolitano, and ICE Director John Morton asks the courts to overturn the June 15 directive by Obama to suspend deportation proceedings and offer work authorization to some immigrants brought here illegally as children. [...]It appears that Chris Crane and these "disgruntled" ICE agents want to dictate immigration policy. As of yet, none has announced that they are running for President of the United States. Last I looked, it was the president and his designees who set the policy for enforcement of immigration laws, among many, many others. Hell, even generals have to follow the directives of the president. What makes Chris Crane so special? Nothing. But, when it comes to brown people, Republicans will embrace any means necessary, including the embrace of public sector service unions, to accomplish their stated goals, getting rid of brown people.
“The Directive commands ICE officers to violate federal law,” the lawsuit says. Chris Crane, the president of ICE agents' union who is suing Napolitano and Morton, accused the Obama administration of ignoring the demands of ICE agents when formulating the new policy. “We’ve repeatedly tried to work with the administration and they’ve just excluded us from everything since day one,” Crane said on a conference call with reporters announcing the lawsuit.
More on the multipronged attack on brown people by Republicans in all branches of government on the flip.
So Joe Arpaio wannabe Chris Crane wants to form his own posses to root out the brown people. Say this for Arapaio, at least he runs for office. Chris Crane works for the President. He is certainly entitled to his opinions and to state them, but what is his job? Janet Napolitano explained how she sees it:
Here's what I expect as a former federal prosecutor and attorney general: and that is law enforcement agents will enforce the law in accord with the guidance they are given from their superiors and that is what we ask of ICE, that's what we ask of border patrols and what we ask throughout the department and I believe that is consistent with all law enforcementI'm not sure who would disagree with that, except of course, Republicans when it comes to their goal of getting rid of brown people by any means necessary. If it serves that goal, then Republican love public sector unions who parrot their nonsense, they love employee challenges to directives set by their superiors, and they love lawsuits.
Agents don't set enforcement priorities, those are set by their superiors and they are asked to obey that guidance in accord with the law.
For Chris Crane did not stop with his press conferences and shilling for the GOP war on Latinos, he decided to file a suit instead. A lawsuit filed by Kris Kobach, the mastermind behind such brown people hating laws like Arizona's struck down SB 1070.
And remarkably, a federal judge in Dallas, Reed O'Connor, a George W. Bush appointee to be sure, decided Chris Crane and his fellow "disgruntled" ICE agents had standing to challenge the directives of their superiors regarding immigration enforcement priorities. How in gawd's name did he manage to do that? By making it up of course:
[T]he ICE Agent Plaintiffs assert that they have suffered an injury-in-fact by virtue of being compelled to violate a federal statute upon pain of adverse employment action. Pls.’ Resp. Mot. Dismiss 2–7, ECF No. 30. Plaintiffs allege that the Directive and the Morton Memorandum require them to choose between (1) complying with the Directive and the Morton Memorandum and consequently violating their statutory duties under federal law and (2) violating the Directive and the Morton Memorandum and being disciplined as a result. Id. Defendants’ response to this basis of standing is essentially the same as their response to the issue of violation-of-oath standing: Defendants contend that the ICE Agent Plaintiffs have not alleged a sufficient injury-in-fact because they have not alleged that they will “personally suffer any adverse consequence as a result of implementing the challenged memoranda.” Defs.’ Reply Mot. Dismiss 1, ECF No. 33. For the reasons set forth below, the Court finds that the ICE Agent Plaintiffs have alleged a sufficient injury in-fact to satisfy the constitutional requirements of standing.
The ICE Agent Plaintiffs allege that compliance with the Directive and Morton Memorandum would require them to violate their statutory obligations under the Immigration and Nationality Act (“INA”). Pls.’ Am. Compl. ¶¶ 37–40, ECF No. 15; see generally 8 U.S.C. §§ 1101–1537. The INA provides that “[a]n alien present in the United States who has not been admitted . . . shall be deemed for purposes of this chapter an applicant for admission.” 8 U.S.C. § 1225(a)(1). All applicants for
admission “shall be inspected by immigration officers.” Id. § 1225(a)(3). “[I]f the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a [of the INA].” Id. § 1225(b)(2)(A). The ICE Agent Plaintiffs assert that these statutory provisions require them to arrest or issue an NTA to illegal aliens whenever those aliens “are not clearly and beyond a doubt entitled to be admitted” to the United States. Pls.’ Am. Compl. ¶¶ 37–40, ECF No. 15; Pls.’ Resp. Mot. Dismiss 2–3, ECF No. 30. Because Directive-eligible aliens may not be “clearly and beyond a doubt entitled to be admitted,” Plaintiffs allege that federal law requires them to arrest
those aliens or issue an NTA. Pls.’ Am. Compl. ¶¶ 37–40, ECF No. 15; Pls.’ Resp. Mot. Dismiss 2–3, ECF No. 30. The Directive and the Morton Memorandum, in contrast, require the ICE Agent Plaintiffs to defer action against Directive-eligible aliens. Pls.’ Resp. Mot. Dismiss 3, ECF No. 30. The ICE Agent Plaintiffs “fear, based upon official communications to them, . . . that if they follow the requirements of federal law, contrary to the Directive, and arrest an alien or issue an alien a notice to Appear (NTA) in removal proceedings, they will be disciplined or suffer other adverse employment consequences.” Pls.’ Am. Compl. ¶ 49, ECF No. 15.
Here, the Directive and the Morton Memorandum require Plaintiffs to defer action against illegal aliens who satisfy the criteria set out in the Directive. Pls.’ Am. Compl. Ex. 1 (Directive), at 2, ECF No. 15-1. Plaintiffs have made it clear that they do not intend to comply with the Directive and the Morton Memorandum by deferring action for Directive-eligible aliens. Pls.’ Am. Compl. ¶¶ 50–58, ECF No. 15. Rather, Plaintiffs intend to comply with what they believe to be their statutory obligations by arresting or issuing an NTA to any illegal aliens who are not “clearly and beyond a doubt entitled to be admitted” to the United States, which may include some Directive eligible aliens. See 8. U.S.C. § 1225(b)(2)(A). Plaintiffs face the threat of disciplinary action if they engage in this intended course of conduct and violate the commands of the Directive by arresting or issuing an NTA to a Directive-eligible alien. See Pls.’ Am. Compl. ¶ 49, ECF No. 15. There is “no question” that the ICE Agent Plaintiffs have sufficient standing as plaintiffs under these circumstances: the Directive and the Morton Memorandum are specifically directed at the ICE Agent Plaintiffs; the Directive and the Morton Memorandum require them to make significant changes in the way they carry out their duties; and if they fail to comply with the Directive and the Morton Memorandum they will be exposed to adverse employment consequences. See Abbott Labs. v. Gardner, 387 U.S. 136, 154 (1967). An adverse employment action, or the threat thereof, constitutes an injury-in-fact. See United States v. City of Miami, Fla., 664 F.2d 435, 446 (Former 5th Cir. Dec.
1981) (en banc) (per curiam) (finding that plaintiffs suffered the requisite injury-in-fact to satisfy the requirements of Article III where decree allowed plaintiffs who passed a civil service test to be passed over for promotions); see also Shanahan v. City of Chi., 82 F.3d 776, 780 (7th Cir. 1996) (finding that plaintiff suffered an adequate injury-in-fact when he was demoted to his former position). The Court finds that the potential disciplinary action that results from failing to comply with the Directive and the Morton Memorandum constitutes a sufficient injury-in-fact to satisfy the constitutional requirements of standing.5 Accordingly, the Court finds that the ICE Agent Plaintiffs have alleged a sufficient injury-in fact to satisfy the constitutional requirements of standing. Furthermore, the alleged injury is directly traceable to the Defendants’ conduct in issuing and enforcing the Directive and Morton Memorandum, and a favorable decision by this Court would likely redress the injury. Accordingly, the Court finds that the ICE Agent Plaintiffs have met their burden of establishing the constitutional requirements of standing to challenge the portions of the Directive and the Morton Memorandum related to the exercise of prosecutorial discretion.
It would not be surprising if your head is spinning after reading this utter nonsense. The ICE agents complaint boils down to they do not want to follow the directives of their superiors because they do not agree with their superior's (1) interpretation of the law and (2) policy priorities, and they intend to disobey their superiors. Voila! Standing!
Would that this "federal employee standing doctrine" had existed when Bush was President. Can you imagine all the SEC, EPA, DOJ and other agency employees going to court to challenge all the stupidities and illegalities that Administration perpetrated? But of course there is no such standing doctrine and nor should their be. Heck, this rogue judge points to why in the same opinion:
Defendants assert that Finch and Donelon establish that, in the Fifth Circuit, if an alleged violation of one’s oath “is the only consequence that flows from upholding a challenged law, a plaintiff cannot establish standing by suggesting that a refusal to uphold the law will result in injury.” Defs.’ Mot. Dismiss 14, ECF No. 23. The Court agrees. Here, the ICE Agent Plaintiffs are suing to ensure that the Directive and Morton Memorandum comply with their opinion of what federal law requires. See Donelon, 522 F.3d at 568; see also Finch, 585 F.2d at 774. The ICE Agent Plaintiffs have alleged that they will be disciplined if they refuse to comply with the Directive and the Morton Memorandum. However, they have not alleged that they will be disciplined if they comply with the Directive and Morton Memorandum. They allege, instead, that complying with the Directive and Morton Memorandum will cause them to violate their oaths to uphold the Constitution and laws of the United States. Because the ICE Agent Plaintiffs have not alleged that any negative consequence apart from the violation of their oath will flow from complying with the challenged Directive and Morton Memorandum, they have failed to allege a sufficient injury-in-fact under the Fifth Circuit’s interpretation of violation-of-oath standing. See Donelon, 522 F.3d at 568; Finch, 585 F.2d at 774.4.How this rogue judge can square that with his finding of standing, only he can explain. To an honest rational person, they are irreconcilable. The irony drips, of course, because a key Republican judicial project for decades has been to block people from vindicating their rights in court:
The Supreme Court’s Article III standing doctrine has plagued liberal
groups for nearly forty years. Recently, however, the doctrine has blocked a number of conservative lawsuits opposing gay marriage, the 2010 health care law, and the expansion of federal funding for stem-cell research. What can we learn from these cases? Because contemporary criticisms of standing doctrine have usually come from the left and defenses from the right, it is commonplace to associate arguments for broad standing with left wing political agendas. But, as some scholars have shown, older versions of standing doctrine served liberal purposes in the New Deal and its immediate
aftermath. The current strict standing doctrine, now keeping conservative activists out of federal court, may have returned to its roots.
For a judge who wants to decide a case, any contortion is acceptable. And yes, this judge wanted to decide the case, and decide it he did, he found the directives illegal, which should surprise precisely no one.
After all, like most Republicans, this rogue judge believes in getting rid of brown people by any means necessary.