Larry Klayman
The beginning of the end of Obamnesty!
By Larry Klayman
February 23, 2015

At about 11:04 p.m. Eastern time Monday, the political and legal world changed. In Brownsville, Texas, the Honorable Andrew Hanen ordered a halt to the Obama administration's amnesty program for illegal aliens. Judge Hanen issued a "temporary injunction" from the U.S. District Court for the Southern District of Texas in the case filed by 26 states, State of Texas, et. al. v. United States of America, et. al., Case No. 1:14-cv-254.

We at Freedom Watch got the notice electronically, because we had filed a Friend of the Court brief on behalf of Sheriff Joe Arpaio. Sheriff Arpaio's own separate lawsuit is now on appeal in the U.S. Court of Appeals for the District of Columbia Circuit. Sheriff Arpaio filed his opening brief on Jan. 29, 2015. We are expecting Eric Holder's Justice Department to file an opposition brief by March 3, 2015.

It is beneficial to pursue this issue in several of the federal circuits nationwide at the same time. Since the U.S. Supreme Court may ultimately decide this issue, creating decisions in different circuits can be important. The Republican-controlled Congress is making noises about filing a third major lawsuit, but who believes John Boehner and company is serious at this point?

Defenders of amnesty by presidential fiat have been handed a public rebuke, that Obama's action is illegal and likely unconstitutional. The fight in Congress over whether to include a rider blocking amnesty by executive action in the appropriations bill for the U.S. Department of Homeland Security now looks very different. Yet, so far, Senate Democrats haven't budged.

It may help political analysts, strategists and observers to clarify the ruling.

First, getting a preliminary injunction isn't easy. A plaintiff must convince a judge that the plaintiff is highly likely to win on the merits. The lawsuit continues. The coalition of 26 states can now take discovery to obtain information and documents and take depositions. There will be a trial, unless the 5th Circuit rules that Judge Hanen was wrong and the plaintiff states do not have "standing."

However, Judge Hanen's analysis required him to predict – absent surprises – that the 26 states will win at trial. He must remain open to the U.S. government defendants proving otherwise. But both sides furiously and exhaustively briefed every aspect of the case already. Hanen's injunction says far more than it might seem.

Second, news reports emphasized that Judge Hanen ruled on the Administrative Procedures Act (APA). Actually, Judge Hanen explicitly states in his 123-page memorandum opinion that he found the APA argument sufficient to issue an injunction. Therefore, he simply did not consider the other two arguments in the case – yet.

The 26 plaintiff states also argue that the Obama administration's programs are unconstitutional and violate the constitutional duty that the president "shall take Care that the Laws be faithfully executed." Hanen found it unnecessary to get into the constitutional violations at this point. So that constitutional claim is still pending there and in Sheriff Arpaio's lawsuit.

We remain confident that the constitutional abuses by this president, and frankly previous presidents as well, will be clearly rejected by the federal courts. Hanen's analysis under the APA was only a start. Everyone concerned about the future of our country wants to draw a line in the sand for our nation's "leaders" to stop trampling on our U.S. Constitution.

Similarly, the 26 plaintiff states brought two different APA claims: The APA's procedural requirements require an elaborate "notice and comment" process. "Notice and comment" can delay a federal regulation for months and even years. Obama's IRS abandoned plans to strip 501(c)(4) nonprofit organizations of the right to participate in public policy debates when the tea party swamped the IRS with public comments. All those public comments must be analyzed or the regulation could later be invalidated as "arbitrary and capricious."

But also, the substantive challenge in Sheriff Arpaio's case and the states' case, which the sheriff and I also participated in, require Executive Branch action to conform to congressional statutes and the U.S. Constitution. Obama's executive over-reach violates both the Constitution and the congressional statutes. Therefore, the Court could also overturn Obama's amnesty for that independent reason.

Third, the Obama administration boasts that they expect to overturn Hanen's ruling on appeal in the 5th Circuit. Unlikely. Judge Hanen wrote a meticulous, 123-page opinion clearly designed to survive appeal. The judge gave away a few points he didn't need to, but he was plainly writing with the 5th Circuit sharply in mind.

Fourth, the two big battles are government challenges to plaintiffs' "standing" and whether the government can grant amnesty on the basis of prosecutorial standing.

Across the board, Eric Holder's Justice Department is taking the position that even if the Obama administration broke the law, no one is qualified to challenge their lawbreaking. Plaintiffs must have "standing" – that is, a personal stake in a lawsuit. The government is trying to beat back all challenges to government lawbreaking by attacking the standing of plaintiffs in all sorts of lawsuits.

Failing that, the government argues that Obama's amnesty is merely a routine use of prosecutorial discretion. Hanen's case turned largely on exactly how the Obama program actually works. Hanen ruled that it isn't prosecutorial discretion because the program grants affirmative benefits and also because everyone who meets the broad criteria automatically gets those benefits plus immunity from deportation. Hanen rejected claims of case-by-case decision-making as only a pretext. That is, the administration recited certain buzzwords only to pass legal muster, but the program doesn't actually work the way the Administration recites.

Maybe I shouldn't say I told you so. But I will. Those who love our country and are fighting to preserve it should not so be so quick to forget the courts and the tools of litigation. No tool is right for every job. Most repair jobs can't get done without using several tools in combination. And despite one's best efforts and best techniques, there is never a guarantee of success at anything in life. But we are guaranteed to fail if we never try.

I created Judicial Watch in 1994, and later founded Freedom Watch, because I saw the importance of holding public officials accountable to the rule of law. Many organizations promoting a socialist transformation of America and a bigger government have been aggressively using the courts for decades. Patriots also have to be aggressively represented in the courts.

But if the courts do not help patriots restore the nation to greatness, the alternative is revolution. With more judges like Hanen, perhaps this can be avoided.

© 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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