Larry Klayman
February 9, 2015
End in sight to Obama's immigration tyranny
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By Larry Klayman

Stopping amnesty granted to millions of illegal aliens by President Barack Hussein Obama is driving much of the controversy this week throughout America's political world.

We at Freedom Watch just filed Sheriff Joe Arpaio's opening brief in his appeal. In Texas, 25 states – half of the country – are suing the Obama administration to halt Obama's amnesty by executive action.

MSNBC reported Feb. 5: "Activists prepare for the worst in lawsuit to block immigration actions." Hopefully shortly, a preliminary injunction will stop Obama's executive amnesty in the U.S. District Court for the Southern District of Texas. "Prominent immigration advocates have all but conceded that federal judge Andrew Hanen – a staunch critic of the Obama administration's immigration policies – will block the president's executive actions just weeks before the measures are slated to kick in," says MSNBC's Amanda Sakuma.

With the considerable resources of 25 states in play, the Texas case has been briefed extensively, with considerable evidence presented. Freedom Watch filed a "Friend of the Court" brief for Joe Arpaio in the Texas case. It is probable that a preliminary injunction will be issued by the end of February, blocking Obama's executive action amnesty schemes.

Sheriff Arpaio, however, was the first to sue. His lawsuit is further advanced, now already in the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit"). And it is important for opponents of executive amnesty to win in several judicial circuits to get the issue settled. The question will probably be decided ultimately by the U.S. Supreme Court. Therefore, a win is needed in both D.C. Circuit and the U.S. Court of Appeals for the 5th Circuit, which oversees federal cases in Texas.

It is clear that Obama's various programs granting amnesty to illegal aliens are unconstitutional and/or illegal under statutes like the Administrative Procedures Act (APA), which requires notice and comment by the public before even regulations can be put into effect.

The Executive Branch has no legislative authority except that delegated from Congress. Statutes passed by Congress, not administrative policy, are the exclusive authority on these questions. For example, 8 U.S.C. 1229a (a)(3) provides: "Exclusive procedures: Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States."

Of special interest, the Executive Branch's own legal team at the Office of Legal Counsel (OLC) in Eric Holder's U.S. Department of Justice warned Obama not to do what he is doing. In a 33-page legal memorandum, OLC repeatedly warned that the Executive Branch cannot abdicate its responsibility to enforce the law or rewrite the law: "Second, the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. ... Third, the Executive Branch ordinarily cannot, as the Court put it in Chaney, "'consciously and expressly adopt a general policy' that is so extreme as to amount to an abdication of its statutory responsibilities." And "Immigration officials cannot abdicate their statutory responsibilities under the guise of exercising enforcement discretion."

However, Judge Beryl Howell, an Obama appointee, dismissed Arpaio's case incorrectly. Judge Howell's decision strongly appears to have been influenced more by the politics of the topic than by the legal analysis. The judge viewed the litigation as only a dispute over national policies, not the law. As a result, Howell concluded that the case is not a justiciable, case but a dispute between the Congress and the White House.

But the immediate battle is over "standing." Obama's team believes they can evade scrutiny of the illegal substance of their actions by arguing that no one has "standing" to bring a lawsuit in court to challenge Obama's illegal conduct. In both Arpaio's case in D.C. and the states' case in Texas, Eric Holder's Justice Department is trying to convince the courts to sidestep the lawsuits.

Federal courts can avoid deciding many cases on the grounds that a plaintiff must show a direct, personal injury or harm. Therefore, the Executive Branch hopes to get away with an obviously illegal over-reach of its role. They believe they won't have to comply with the law if the cases are dismissed on technicalities. They are leaning heavily on their opinion that the plaintiffs will not be directly harmed.

As but one example of harm to the sheriff's office, from Feb. 1, 2014, through Dec. 17, 2014, the costs of holding inmates flagged with INS "detainers" in the sheriff's jails was $9,293,619.96. The first amnesty program started in 2012. Harm has resulted in 2013 and 2014 and is continuing. Therefore, I believe the D.C. Circuit will reverse Judge Howell's dismissal.

Arpaio is the elected sheriff of Maricopa County, Arizona, who has just announced his bid for re-election. The county has about 4 million residents. Sheriff Arpaio is responsible for the safety and security of around 60 percent of the population of Arizona. Arpaio's county is bigger in population than 24 states, the District of Columbia and Puerto Rico. As a result, the impact on his office from Obama's amnesty schemes is considerable.

The showdown continues in the U.S. Senate over appropriations for the U.S. Department of Homeland Security (DHS). Conservative Republicans are fighting to strip funding for Obama's executive amnesty. Unfortunately, preserving our constitutional system through Congress requires political courage that appears to be absent among Senate Republicans. While Democrats hang tough and are united, Republicans are not.

Last fall's continuing resolution for funding of DHS expires on Feb. 27. The U.S. House of Representatives under Republican control passed a true appropriation for DHS that fully funds the agency but forbids the spending of any funds for amnesty by the president's executive authority, unsupported by congressional legislation. Now the U.S. Senate is debating whether or not to pass the same funding bill as the U.S. House.

In a contest of wills, Senate Democrats have blocked for a third time legislation that would finance DHS but defund Obama's executive actions. Democrats are refusing to accept funding without including full funding for Obama's amnesty schemes. In this battle, Sen. Jeff Sessions, R-Ala., is a key leader. Sessions argues that all of the 1 million new jobs created since 2007 went to foreign workers, according to the Bureau of Labor Statistics. But Senate Republicans like John McCain are fracturing from the Republican position.

In short, justice will come only from our case on behalf of Sheriff Arpaio and the similar case of 25 states in Texas. If Obama and his leftist comrades are not legally stopped in the courtroom, the American people will be forced to use other means to end government tyranny.

© Larry Klayman

 

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Larry Klayman

Larry Klayman, founder of Judicial Watch and Freedom Watch, is known for his strong public interest advocacy in furtherance of ethics in government and individual freedoms and liberties... (more)

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