Federal judge signs off on DOJ and Oklahoma's sham anti-immigrant lawsuit

Judge Ronald White did not even consider a brief arguing the court lacked jurisdiction to hear the matter before issuing an order striking down a decades-old Oklahoma law.

A federal judge on Friday allowed the Trump administration and an aligned Oklahoma official to use his court to subvert democracy through a sham lawsuit manufactured to get rid of a state law they don’t like without needing to go through the trouble of actually repealing the law.

This practice is “a threat to the democratic process,” a lawyer with Public Justice who tried to stop the lawsuit from proceeding told Law Dork on Saturday.

Heading into a holiday weekend, U.S. District Judge Ronald White on Friday approved a “consent judgment” to strike down a two-decade old Oklahoma law that allowed certain undocumented individuals to get in-state tuition for college.

White, a George W. Bush appointee, allowed the anti-immigrant Trump administration and anti-immigrant attorney general in Oklahoma to use their sham lawsuit — and the federal courts — to reach that goal.

White did so after completely ignoring a filing from Public Justice that argued the court lacked jurisdiction to even consider the matter.

As Law Dork reported earlier this month, the U.S. Justice Department and Oklahoma Attorney General’s Office made clear this was not actual litigation. Oklahoma Attorney General Gentner Drummond’s office declared in a news release: “Trump DOJ and Drummond partner to end in-state tuition for illegal immigrants.“ The same day that the complaint was filed on August 5, Oklahoma and DOJ filed a Joint Motion for Entry of Consent Judgment.

Two days later, as Law Dork previously reported, a federal magistrate judge recommended that White go along with this manufactured dispute and strike down the law. Further, U.S. Magistrate Judge Edward Snow only gave parties three days to file any objections to his recommendation, instead of the usual 14 days.

Three business days later, on August 12 — the deadline listed on the docket for objections — Public Justice sought leave to file an amicus curaie brief in the case. Amicus briefs are filed by non-parties to alert the court to issues of fact or law that the court otherwise might not have access to when deciding a matter.

Public Justice — a nonprofit that, as it notes on its website, is “stepping in to ensure accountability when the government refuses to do so” — explained quite plainly why it was looking to file an amicus brief here.

“The Court should not enjoin a democratically enacted law on which so many students depend without careful deliberation informed by arguments on both sides of the issues,” the lawyers wrote in the request.

In its proposed amicus brief, Public Justice laid out the fundamental problem posed by the DOJ-Oklahoma action:

Putting aside that the 22-year-old statute they seek to erase—like the nearly two-dozen similar statutes enacted by states across the country—is fully consistent with federal law, this Court lacks jurisdiction to grant the parties’ joint request. The Constitution limits the federal “judicial power” to adjudicating “actual controversies arising between adverse litigants.” Muskrat v. United States, 219 U.S. 346, 361 (1911). The founders did not authorize courts to set aside laws in “friendly suit[s]” between partners. Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346 (1936) (Brandeis, J. concurring).

Put most simply: This is not a “case” or “controversy,” as is required to invoke federal court jurisdiction under Article III of the U.S. Constitution.

As such, Public Justice asked the court to “deny the motion for a consent decree and dismiss this case for lack of jurisdiction.” If not that, “it should give affected parties thirty days, rather than three, to object to the magistrate’s report and recommendation.”

Initially, the Justice Department consented to the filing of the amicus brief. Later that same day, however, DOJ withdrew its consent because, it decided, the brief was “untimely.” In a filing on August 26, the Justice Department and Oklahoma Attorney General’s Office — two entities that claim they are doing law — explained their opposition to the filing of Public Justice’s brief in a joint brief:

Yes, in a lawsuit where Oklahoma said DOJ and the state are “partners,” they jointly opposed the filing of a brief aimed at providing the court with information about whether the court has jurisdiction to hear the case at all.

Public Justice explained in its reply the next day why the amicus brief should be considered — both as to why it was not untimely and why it should be accepted for its value to the court.

On Friday, however, White rejected the amicus brief — denying the motion requesting that it be filed in the case. White did so in a “minute order,” providing no analysis or reasoning for rejecting the brief.

Shortly thereafter, and after accepting no adversarial arguments in the case, White accepted the magistrate’s recommendation. Noting, as only a person with lifetime tenure would do, “No objection has been filed and the time allotted for doing so has expired,“ White then issued an order from the U.S. District Court for the Eastern District of Oklahoma permanently blocking Oklahoma officials from enforcing the law.

With Friday’s action, White joins U.S. District Judge Reed O’Connor on the U.S. District Court for the Northern District of Texas as being the type of federal judge who allows his court to be used for this sort of sham litigation. O’Connor, a far-right judge who is regularly in the news for his actions benefiting far-right litigants, took a similar action — on an even more concerning six-hour timeline — earlier this year in a DOJ-Texas lawsuit addressing the same sort of law.

As Sean Ouellette, the Public Justice lawyer who filed the request before White told Law Dork on Saturday, “Even more conservative judges ... generally tend to be jurisdiction hawks.“ At least, they used to be. Citing Justice Antonin Scalia, Ouellette explained that cases with no “adversariness” have previously prompted sharp criticism from conservative justices.

“The reasons why it’s a threat to the democratic process are technical,” Ouellette said, “but the way I explain it is that a court needs arguments on both sides.” Without it, he warned that courts risk not only getting cases wrong — but doing so improperly. “You abuse your discretion when you decide an issue without any adversary position on both sides, which is what happened here.”

In a follow-up email, Ouellette explained his concern looking forward.

“The obvious danger here is that, if federal and state executives could pop into court to nullify a state law whenever they can come up with some plausible argument it's preempted, they can effectively repeal state laws that the people's representatives passed, even when the court would have upheld the law if it heard both sides of the issue,” he wrote.

With White showing on Friday that O’Connor’s acquiescence was not just a Reed O’Connor exception, this will not be the end of these anti-democratic moves.