Larry Klayman
November 9, 2015
Obama's illegal amnesty heads to Supreme Court
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By Larry Klayman

Sheriff Joe Arpaio and Freedom Watch's legal team are now filing his petition with the Supreme Court to challenge President Barack Obama's executive grant of amnesty for illegal aliens. Doing the job most U.S. politicians won't do, Sheriff Arpaio of Maricopa County, Arizona, was the first to bring a challenge when Obama ordered his Department of Homeland Security (DHS) on Nov. 20, 2014, to rewrite and circumvent the laws passed by Congress. Now Arpaio, with Freedom Watch as his counsel, is the first to go to the Supreme Court!

In essence, we are asking the high court to resolve conflicting approaches among the nation's appellate court circuits. We are reminding the justices that America's system of law and order and our nation's experiment in self-government (unique in human history) cannot long survive if the judiciary refuses to play its part by upholding the Constitution.

The Constitution can only have meaning if we are disciplined to live by it, even when politicians are tempted to cheat. If neither the courts nor elected politicians will protect and defend – and follow – the Constitution, they leave every door closed for a peaceable resolution of our citizens' refusal to stand by and watch our country slowly die.

Even as Freedom Watch was drafting Sheriff Arpaio's Supreme Court appeal came more news of Obama's unbridled arrogance and tyranny. A leaked memorandum from DHS outlined plans for new executive-action usurpations of the role of Congress – which bypasses even the federal court in Texas that ordered Obama and his minions at DHS to cease and desist from implementing his illegal executive amnesty. Thus, some of the plans mapped out at a DHS retreat are designed to barrel full-speed ahead on granting amnesty to millions of illegal aliens while technically side-stepping the injunction that is still in place from Judge Hanen in the U.S. District Court for the Southern District of Texas, as reported in The Hill. A coalition of 26 states led by Texas had sued the Obama administration last December. In the jurisdiction of U.S. Court of Appeals for the 5th Circuit, the Honorable Andrew Hanen issued a preliminary injunction blocking implementation of Obama's amnesty. The 5th Circuit upheld the preliminary injunction (refused to order a stay) on May 26, 2015.

So in the 5th Circuit, the states were found to have standing to bring a lawsuit from the costs that amnesty imposes on them. In the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), Sheriff Arpaio on almost identical facts – in fact, much stronger – was found not to have standing, and that is why we are going to the Supremes to break this impasse.

How can that be? Different judicial circuits and courts are following widely different and dramatically inconsistent rules and standards to govern standing. That is one reason the Supreme Court must step in and end the judicial chaos.

In the D.C. Circuit, Judge Janice Rogers Brown on the appeals panel explained in her concurring opinion what her problem is:
    Some may find today's outcome perplexing. Certainly Sheriff Arpaio cannot be blamed for believing he had standing. The relevant judicial guide-posts do not exactly "define" standing "with complete consistency." Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982). And some cases suggest standing can be satisfied based on fairly ephemeral injuries and attenuated theories of causation.
Brown stated: "I write separately to ... note the consequences of our modern obsession with a myopic and constrained notion of standing." And: "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 (unconstitutional) non-enforcement of the immigration laws."

For several decades, the federal courts have been building higher walls to avoid doing their jobs and refusing to uphold the Constitution against the lust for power of politicians. As a result, the judicial invention of "standing" has continually grown like a cancer. Lawsuits against the government have become increasingly impossible – unless the plaintiff is pursuing a liberal, big-government agenda.

There is no mention of standing in the Constitution or in laws governing court procedures. Based on nothing, standing rules are completely inconsistent from one circuit to the next and one case to the next. In Massachusetts v. Environmental Protection Agency (EPA) 549 U.S. 497, 516–26 (2007), the Supreme Court found that plaintiffs had standing from the mere possibility that in 50-100 years coastline will be lost to a rising ocean. The inconsistency deeply troubled Judge Brown in her dispute in our case with the D.C. Circuit's thinking.

The D.C. Circuit essentially applied a standard of "beyond a reasonable doubt," used in criminal cases: "We have required 'substantial evidence of a causal relationship between the government policy and the third-party conduct, leaving little doubt as to causation and the likelihood of redress,'" wrote the D.C. Circuit in inappropriately dismissing Sheriff Arpaio's case.

By contrast, the 5th Circuit presented the correct rule of law: "The Supreme Court has held that a plaintiff has standing if the injury alleged is both 'fairly traceable to the Government conduct ... challenge[d] as unlawful. ..." "Fairly traceable" is a very different rule of law from "substantial evidence ... leaving little doubt as to causation." The analysis is in sharp conflict among the circuits.

Since last November, we heard tough talk from the Republican-led Congress seeking votes that they would block Obama's unconstitutional amnesty. Yet Republican leaders in Congress have funded Obama's amnesty. We still have not seen the lawsuit former Speaker John Boehner promised, and he and his dishonest legacy are now toast. The courts and especially the Supreme Court must now finally do their duty and protect We the People from the tyranny of Obama's executive branch, which thanks to the cowardly and do nothing Republican Congress who has rolled over to him, likely for fear that they will be branded racists if they challenge and block an African-American president in the years leading up to the presidential elections in 2016. Whether its illegal immigration, Obamacare, the Iran nuclear treaty, or halfhearted and useless congressional hearing allegedly to investigate the myriad of Obama-Hillary Clinton scandals like Benghazi, IRS-gate, or Fast and Furious, this has been the Republican establishment's modus operandi, which ironically has taken a seat at the back of the proverbial government bus ever since Obama was elected president. It's why conservative, libertarians, people of faith and anyone who believes in representative government has had it with them and now are prepared, if necessary, to take matters into our own legal hands!

We at Freedom Watch are not cowardly and neither are the readers of this column. Let us hope our Supreme Court finally does its job and steps in to protect the citizenry before revolution eventually breaks out!

© 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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