Larry Klayman
The Supremes, amnesty and Sheriff Joe
By Larry Klayman
January 26, 2016

On Tuesday, the Supreme Court agreed to hear an appeal of amnesty that was granted to 5 million illegal aliens by Barack Hussein Obama through executive action. After publicly announcing 22 times that he did not have the legal authority, Obama gave amnesty and work permits to illegal aliens because Congress failed to agree with him. Oral argument is predicted as early as April in Case No. 15-674, United States of America, et al. v. State of Texas, et al., with a decision sometime before the 2016 elections.

So what will this mean for the future of our country? On the one hand, in that case, the Obama administration is seeking to overturn the preliminary injunction blocking Obama's amnesty programs. The Honorable Andrew Hanen in Texas issued an order, and the 5th Circuit upheld Judge Hanen's injunction. So, technically, at least four of the Supreme Court's nine justices voted to consider whether to overturn the 5th Circuit, vacate Judge Hanen's injunction and allow Obama's amnesty to go forward immediately.

But, on the other hand, the Supreme Court also expanded the scope of the briefs from the issues the parties identified: "In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: 'Whether the Guidance violates the Take Care Clause of the Constitution, Art. II, Sec.3.'" (That clause says "[The President] shall take Care that the Laws be faithfully executed. ...")

So the Supreme Court is interested in considering the constitutional questions of this case. Normally, federal courts try to decide a case while dodging constitutional issues, unless absolutely necessary. Here, at least four justices went out of their way to request briefing on the ultimate constitutional question. This tends to suggest, even though it is extremely early, their intention to uphold the Constitution. In other words, the high court could find many non-constitutional issues (such as standing) to use for striking down Judge Hanen's injunction in Obama's favor. They would be wrong, in my analysis. But they could, in theory, side with Obama without delving into the constitutional issues. Thus, it is an encouraging sign that the Supreme Court singled out the "Take Care Clause" for special attention.

As I have warned at Freedom Watch, as bad as Obama's immigration policies are, the precedent of tearing up our Constitution and letting a president rewrite laws Congress enacted is even worse. In this election year, voters of both parties should consider how they feel about the other party's candidate having such lawless, dictatorial power in the future.

Founding Father and second President John Adams declared just days before signing the Declaration of Independence in this writer's native city of Philadelphia that we were to be a nation of laws and not men. Whether anyone likes or dislikes our current president or whoever they hope our next president will be, are they willing to entrust such lawless power to a president of the opposite political party?

That is why the very next day, I filed our lawsuit defending the Second Amendment and challenging the same type of lawlessness concerning gun control. On Jan. 4 and 5, the Obama administration announced a re-interpretation of existing gun control laws, worthy of a Hollywood "re-envisioning" of a classic movie. Once again, Obama claims the authority to rewrite laws passed by Congress because Congress had the audacity not to agree with him. We are asking the U.S. District Court for the Southern District of Florida to strike down Obama's arbitrary and capricious rewriting of gun control, dealer licensing and firearm background-check laws.

Shockingly, in one of the two congressional hearings this week, Sen. Barbara Mikulski, D-Md., declared: "So let's solve the problem. Let's not get involved in constitutional arguments. ..." The hearing was about whether President Obama's executive actions expanding gun control regulation infringes on the Second Amendment rights of citizens. So avoiding constitutional issues appears to be dodging the entire controversy.

In the amnesty case, we also asked the Supreme Court to take Sheriff Joe Arpaio's appeal of the same amnesty programs ordered by Obama. While having the Supreme Court ever take anyone's appeal is extremely rare, like winning the $1.5 billion Powerball, we were disappointed that at least four justices did not vote to take both cases together. We argued to the court the value of considering both cases, and the contrast between them, to better evaluate the issues.

Recall that in June 2012, Obama gave amnesty to 1 to 1.5 million illegal aliens who illegally entered the country as children. The amnesty was ordered by memoranda from Janet Napolitano, secretary of homeland security. On Nov. 20, 2014, Obama gave amnesty to another 4.7 to 5 million illegal aliens, most of whom are relatives of other amnesty recipients or naturalized citizens or residents. Sheriff Arpaio immediately filed a lawsuit that night, weeks ahead of Texas and the other states.

Both Arpaio's case and the Texas case include the Obama administration attacking the "standing" of the plaintiffs. The 5th Circuit and D.C. Circuit came to opposite conclusions, using inconsistent analyses.

In Arpaio's case, the government offered no evidence whatsoever to challenge the sheriff's allegations and sworn affidavits supporting his standing and injury. Arpaio challenged both the 2012 amnesty as well as the 2014 amnesty. So the costs Arpaio experienced in his jails in 2014 are a direct result of the 2012 amnesty, not a projection or prediction. Because the government offered no evidence in response, the issues are clear and simple in Arpaio's case, compared with the hundreds of pages of competing affidavits in the Texas case.

Therefore, I have filed a motion asking the high court to reconsider and take both cases together. See Important issues of "standing" may be left unresolved without hearing Arpaio's appeal. The Texas case challenged only the 2014 amnesty, when we believe both the 2012 and 2014 programs should be considered together.

It would appear that the court may have shied away from initially granting Sheriff Arpaio's petition for writ of certiorari as he is a so-called controversial figure in the mainstream media, and the nine justices are establishment jurists, by whatever standard applies to their different political backgrounds and ideologies. But, this is no reason to shy away from his case. Sheriff Arpaio's case presents even more crucial issues than does the Texas case. I trust that the Supreme Court will now put politics aside and act in the best interests of all Americans, not just their own social standing in the smoky establishment boudoirs of Washington. D.C.

© 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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