Larry Klayman
A republic, if you can keep it
By Larry Klayman
May 4, 2015

As I go this Monday, May 4, to argue for Sheriff Joe Arpaio before the U.S. Court of Appeals for the District of Columbia Circuit, I feel that the future of our constitutional republic hangs in the balance. I hope to inspire every reader to similarly move from agreement to action, not single myself out. Every action we take or fail to take is altering our nation's future.

Freedom Watch filed the first challenge to President Barack Obama's executive order amnesty on behalf of Sheriff Joe Arpaio on Nov. 20, 2014. But, as I told the Honorable Beryl Howell in the hearing on Dec. 22, 2014, this is about the rule of law – not just about immigration. The primary issues on appeal are whether our Constitution must be considered as well as the Administrative Procedures Act. President Obama circumvented both in illegally issuing executive orders which flout the law of the land.

As we watch riots in Baltimore, we remember that the unemployment rate is over 51 percent among black youth in West Baltimore, partly because illegal immigrants are taking away their jobs. That will grow worse under Obama's amnesty. We recently learned that Obama's Department of Homeland Security has stolen – er "reprogrammed" – funds that Congress appropriated for enforcement to mail 9 million letters begging green-card holders to hurry and get their full U.S. citizenship. Democrats need votes in the 2016 elections.

Obama calls these executive actions. But they are tearing at the heart and fabric of our U.S. Constitution. It is Congress that makes our laws. The president is a servant of the people and our elected Congress. The president is charged with the sacred duty that he "shall take Care that the Laws be faithfully executed ..." – Article II, Section 3. The president is bound by the Constitution and the laws passed by Congress no less than any other American.

Judge Howell, an Obama appointee, dismissed our case at the trial level, calling it just a dispute over policies. However, Sheriff Arpaio respectfully disagrees. He asks that the laws Congress passed be obeyed. I always expected the issues to be resolved by the appeals courts, including the U.S. Supreme Court. We appealed. Our briefs are filed. On Monday, I will state our case and answer the learned judges' questions. It is with great anticipation that I am preparing and rehearsing for every possible question.

As everyone knows by now, in Texas, the Honorable Andrew Hanen issued a nationwide injunction against Obama's Nov. 20, 2014, amnesty programs. A coalition of 26 states led by Texas – that's more than half the country rejecting Obama's plans – similarly filed a lawsuit to challenge Obama's executive action. I also intervened there for Sheriff Arpaio.

Eric Holder's Justice Department appealed to the U.S. Court of Appeals for the Fifth Circuit. On April 17, in New Orleans, there was a hearing on whether to "stay" the preliminary injunction. We are waiting for that shoe to drop.

There, with the massive resources of 26 state attorneys general – and also I am convinced guided by the lessons learned from our pioneering case that went first – the plaintiffs in State of Texas, et. al. vs. United States of America, et. al. exchanged a massive barrage of pleadings, factual affidavits and exhibits. Judge Hanen thoroughly documented his decision in a 123-page memorandum opinion. This bodes well for success of that case on appeal.

Yet, on Monday, it is just Sheriff Joe and Freedom Watch and our meager resources. But we have riches the Obama administration does not have: the truth.

It is important that challenges be brought in different circuits of the federal courts by different types of plaintiffs, to make sure we prevail in at least some. Also, the U.S. Supreme Court often will not hear an appeal until several circuits have digested and hashed through the issues.

On Monday, our biggest challenge is "standing." The U.S. government is increasingly hiding behind this ploy. Why are they so brazen? Because they believe that the courts will dismiss legal challenges to their illegal behavior. If this is not changed, there is no bottom below us once the floor gives way.

Incredibly, there are about 4 million Arizona citizens and residents in Maricopa County, where Joe Arpaio is sheriff. It is beyond dispute that Arpaio's office has and will suffer a huge drain on resources as a result of Obama's amnesty. We documented more than $9 million in costs in part of 2014 alone, just inside Arpaio's jails, from Obama's 2012 "Deferred Action for Childhood Arrivals," or DACA, program. Unlike the Texas case, Freedom Watch and Joe Arpaio are seeking to throw out the 2012 DACA as well as the November 2014 expansions. They are conceptually related. Yet the U.S. government tries to sell the idea that the harm that everyone knows will occur from amnesty is just speculation.

Standing rules have always been different. Litigation challenging environmental regulation or government action is given a green light even on flimsy connections between the plaintiff and the alleged cause of pollution or possible harm to some frog. So we have seen litigation allowed on claims of harming some endangered species even while the population is flourishing. Litigation against an EPA regulation passed standing muster even though the plaintiffs suffered no harm, only a fear of future harm, maybe, from a rule that allowed the burning – maybe – of alternative fuels only if the alternative fuel was just as safe. The decision to use alternatives was left up to each independent, third party.

Traditionally, litigation brought by liberals easily passes standing scrutiny. But conservatives face different standards. If radioactive medical waste always makes people sick, it is a reasonable prediction that doing the same thing again will produce the same result. Yet the U.S. government insists in our case and in Texas that it is totally speculative that repeating the same amnesty policies now will cause the same harm again that has always resulted in the past.

Obama has made it clear that he is planning a series of power grabs. Obama is just getting started. Unless this is stopped now, the United States as we know it will be fundamentally transformed into something the Founders would never recognize.

© 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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