An appeals court has affirmed the
dismissal of Sheriff Joe Arpaio’s lawsuit against the Obama
administration over his amnesty-by-executive-order plan because the
District of Columbia Court of Appeals determined he didn’t have
“standing” to bring a complaint.
That is, he couldn’t identify a specific and personal injury that he would suffer because of the amnesty.
But one judge said it’s time for changes.
“Today we hold that the elected sheriff of the nation’s fourth
largest county, located mere miles from our border with Mexico, cannot
challenge the federal government’s deliberate non-enforcement of the
immigration laws,” wrote Judge Janice Rogers Brown.
She said while precedent requires the appeals court to uphold the
dismissal of the case, “I write separately to … note the consequences of
our modern obsession with a myopic and constrained notion of standing.”
She explained “what the government views as permissible prosecutorial
discretion, Sheriff Arpaio views as a violation of the president’s duty
to ‘take care that the laws be faithfully executed’ … and the
non-delegation doctrine.”
His concerns, Brown wrote, “run deeper than a difference in
philosophy or politics. He claims [Obama's amnesty] impose clear and
‘severe’ harms on his ability to protect the people of Maricopa county.
In particular, he argues that deferring removal proceedings and
providing work authorizations to undocumented immigrants ‘harmed … his
office’s finances, workload and interfered with the conduct of his
duties…’”
Brown said it’s logical for the sheriff to believe he has a case. But
Brown wrote that the case had to be dismissed because of precedent,
even though “the relevant judicial guideposts do not exactly ‘define
standing ‘with complete consistency.”
Ann
Coulter is back, more fearless than ever, writing about the untouchable
subject in American politics: immigration. Her “Adios, America!”
tackles “the disaster that is U.S. immigration policy.”
“And some cases suggest standing can be satisfied based on fairly ephemeral injuries and attenuated theories of causation.”
Brown said court precedents would describe as “overly speculative”
claims of links between an amnesty program-inspired “flood of
immigration” and an increase in crime by illegal aliens.
But she turned sarcastic in that comparison.
“Of course, the link may be no more attenuated than that connecting a
potential twenty-centimeter rise in sea level with greenhouse gas
emissions from new vehicles.”
She concluded, “Today’s holding puts the consequences of our standing
jurisprudence in stark relief. If an elected sheriff responsible for
the security of a county with a population larger than 21 states cannot
bring suit, individual litigants will find it even more difficult to
bring similar challenges.”
She pointed out that the opinion only concludes that “general conditions” do not support a lawsuit.
“Our decision holds only that Sheriff Arpaio lacks standing … not
that [amnesty] programs are categorically shielded from suit,” she
wrote. And, she said, “Today’s decision does not take issue with the
claim that unlawful immigration carries consequences.”
“Our jurisprudence on standing has many shortcomings,” she said.
The result?
“By prohibiting abstract, general claims, the doctrine aims to ensure
that the president’s ‘most important constitutional duty, to ‘take care
that the laws be faithfully executed” is not transferred to the
courts,” she wrote. “But what if the chief executive decides not to
faithfully execute the laws?
“In that case our doctrine falls silent. Paying a nominal filing fee
guarantees access to the federal courts, but challenge the executive’s
decision to undermine the rule of law and you will likely find your fee
wasted.”
Attorney Larry Klayman of
Freedom Watch said the case will be appealed, and may end up providing a conduit for the Supreme Court to clarify the issue of standing.
He said he would forgo asking the circuit court for a hearing en banc, and move directly to the Supremes now.
He also pointed out that Arpaio hardly “lost” in the case. After he,
he’s joined a Texas case as amicus in which another federal judge
already has enjoined Obama’s amnesty orders.
That case, brought by 26 states, now is pending before the 5th Circuit Court of Appeals.
In fact, WND reported only
days ago that judge, Andrew S. Hanen issued an order that he wants the
federal government in full compliance of his orders before a hearing
next week.
“The court does not consider mere substantial compliance, after an
order has been in place for six months, to be acceptable and neither
should counsel,” Hanen wrote in his newest order in a case brought by 26
states.
Hanen’s injunction, issued last winter, disrupted Obama’s plan to
delay deportation for up to 5 million illegal aliens under a 2014
initiative called Deferred Action for Parents of Americans and Lawful
Permanent Residents, or DAPA.
DAPA would offer three-year work permits to illegal aliens who have
been in the United States since 2010 and have children who are American
citizens or lawful permanent residents. The Obama administration, in
compliance with Hanen’s order, apparently hasn’t enacted that provision.
But when the federal government began carrying out a DAPA provision
that changes a 2012 program called Deferred Action for Childhood
Arrivals, Hanen reacted. The provision extends a two-year reprieve on
deportation to three years, and federal government lawyers granted the
extra year to 100,000 applicants, prompting a rebuke from Hanen.
Hanen’s new order released “individual defendants,” including
Department of Homeland Security Secretary Jeh Johnson, from an order to
testify, but he said he still has concerns about illegal aliens who have
“credentials issued in violation of the court’s injunction.”
The government “needs to be prepared to discuss the reasons that
these individuals are not in compliance,” Hanen ordered, “the steps the
government has taken and will continue to take to achieve complete
compliance and the time table to achieve that goal in the very near
future.”
It was Feb. 16
when Hanen granted a preliminary injunction
to the 26 states that sued Obama for changing immigration law through
executive action rather than by proposing legislation to Congress.
Ann
Coulter is back, more fearless than ever, writing about the untouchable
subject in American politics: immigration. Her “Adios, America!”
tackles “the disaster that is U.S. immigration policy.”
Government attorneys now are attempting to satisfy the judge,
explaining they are trying to fetch the documents they issued that were
in violation of his order.
The change in attitude is in sharp contrast to previous reactions from the administration.
Shortly after the judge’s order, the Washington Times reported
Cecilia Munoz, White House domestic policy director, addressed the
issue: “It’s important to put [Hanen's order] in context, because the
broader executive actions are moving forward. The administration
continues to implement the portions of the actions that the president
and the Department of Homeland Security took, which were not affected by
the court’s ruling.”
But Hanen’s original order had said: “The United States of America,
its departments, agencies, officers, agents and employees and Jeh
Johnson, secretary of the Department of Homeland Security; R. Gil
Kerlikowske, commissioner of United States customs and Border
Protection; Ronald D. Vitiello, deputy chief of United States Border
Patrol, United States Customs and Border Protection; Thomas S.
Winkowski, acting director of United States Immigration and Customs
Enforcement; and Leon Rodriguez, director of United States Citizenship
and Immigration Services are hereby enjoined from implementing any and
all aspects or phases of the Deferred Action for Parents of Americans
and Lawful Permanent Residents.”
And even Obama himself said the Constitution barred him from acting alone.
House Speaker John Boehner has listed 22 times when Obama has made such statements.
For example, in October 2010, Obama said: “I am president, I am not
king. I can’t do these things just by myself. … I’ve got to have some
partners to do it. … If Congress has laws on the books that says that
people who are here who are not documented have to be deported, then I
can exercise some flexibility in terms of where we deploy our resources,
to focus on people who are really causing problems as opposed to
families who are just trying to work and support themselves. But there’s
a limit to the discretion that I can show because I am obliged to
execute the law. … I can’t just make the laws up by myself.”
‘Unilateral legislative action’
Hanen’s ruling marks the second time federal courts have ruled against Obama’s amnesty actions.
WND reported the ruling of a federal court in Pennsylvania.
“President Obama’s unilateral legislative action violates the
separation of powers provided for in the United States Constitution as
well as the Take Care Clause and, therefore, is unconstitutional,”
said U.S. District Judge Arthur J. Schwab.
The judge noted Obama “contended that although legislation is the
most appropriate course of action to solve the immigration debate, his
executive action was necessary because of Congress’ failure to pass
legislation, acceptable to him, in this regard.”
“This proposition is arbitrary and does not negate the requirement
that the November 20, 2014, executive action be lawfully within the
president’s executive authority,” the judge wrote. “It is not.”
Hanen had told the administration officials to show up in his court after discovering they had gone ahead with the immigration program despite his order.
The judge wrote: “The court was first apprised by the government of
the violations of its injunction on May 7, 2015. It admitted that it
violated this court’s injunction on at least 2,000 occasions –
violations which have not yet been fixed. This court has expressed its
willingness to believe that these actions were accidental and not done
purposefully to violate this court’s order. Nevertheless, it is shocked
and surprised at the cavalier attitude the government has taken with
regard to its ‘efforts’ to rectify this situation. The government
promised this court on May 7, 2015, that ‘immediate steps’ were being
taken to remedy the violations of the injunction. Yet, as of June 23,
2015 – some six weeks after making that representation – the situation
had not been rectified.”
He warned, “At some point, when a non-compliant party refuses to
bring its conduct into compliance, one must conclude that the conduct is
not accidental, but deliberate.”
http://www.wnd.com/2015/08/judge-blasts-court-rule-forcing-her-to-dismiss-arpaio-case/
