A brief in a lawsuit by Maricopa County Sheriff Joe Arpaio challenging President Obama's executive actions granting amnesty to as many as 5 million illegal aliens argues a district judge who determined the case doesn't belong in court should be overturned because she was influenced by "politics."
The brief filed with the U.S. Court of Appeals for the District of Columbia Circuit by attorney Larry Klayman of Freedom Watch contends federal Judge Beryl Howell "strongly appears to have been influenced more by the politics of the topic than by the legal analysis."
"For example, Judge Howell concluded that the litigation was only a dispute over national policies rather than the governing statutes, U.S. Constitution and legal requirements," Klayman writes. "Judge Howell analyzed the issues as only a dispute between the political branches and Sheriff Arpaio seeking to intervene in that national policy 'conversation.'"
Klayman concludes that as a result "of the opinion's fixation on national policies, Judge Howell concluded that the case is not a justiciable case which the district court could adjudicate, but a dispute between the Congress and White House."
Klayman contends, however, the president's actions are unconstitutional.
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"Appellees' announced the legal grounds for their programs as their claim to have inherent legislative authority to disregard wholesale the laws passed by Congress," he writes. "The Office of Legal Counsel made explicitly clear in its legal opinion that the executive branch does not have the authority to disregard or rewrite the laws. Yet that is exactly what appellees have done."
In short, Klayman explained to WND in an interview, the judge perceived the dispute as a difference of opinion of two equally and fully legal and constitutional options. In fact, he explained, the existing law, written by Congress and signed by a president, is legal. Obama's plans to change the law simply by writing executive memos isn't legal, he said.
The appellate brief was filed in accordance with an expedited schedule the court imposed on both sides in the case.
Klayman said in an announcement about the filing: "Not only did Judge Beryl Howell, an Obama appointee, strangely and inexplicably find that her court could not adjudicate a dispute between the president and Congress over who has the constitutional authority to change our immigration laws – and in Obama's case unilaterally granting amnesty to over 5 million illegal aliens – but she also strained to find that the sheriff did not have standing to bring suit.
"Our case will be the first to result in real law, which will undoubtedly wind its way to the Supreme Court. Time is short, and the appeals court has expedited the appellate ruling at our request, because Obama's illegal and unconstitutional executive actions will take near full effect in mid-February. That is why we have pushed the courts to move quickly, to avoid more damage not just to the people of Maricopa County, but the nation as a whole," Klayman said.
Another case making similar challenges has been filed by 24 states and is enmeshed in the court system in Texas. And just within the past few days, House Speaker John Boehner has indicated he will take court action against Obama, too.
The White House "cannot rewrite the laws enacted by Congress," the brief argues. "Appellees are refusing to 'take care that the laws be faithfully executed.'"
It notes that even the Office of Legal Counsel said, "The executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.
"Yet the appellees are doing exactly what OLC warned them not to do. Appellees' programs are not prosecutorial discretion but rewriting the statutes. Appellees seek to grant amnesty to an estimated 6 million (53 percent) of the estimated 11.3 million illegal aliens that congressional enactments command them to deport."
WND reported earlier when Arpaio said his local government had spent at least $9.2 million extra on detention and other costs because of Obama's first "deferred action" plan providing some of the benefits of citizenship to illegal aliens in the United States.
Arpaio alleges he suffers direct economic harm from the defendants' executive action amnesty for citizens belonging to a foreign country.
In their case filings, Arpaio and Klayman have argued that some aspects of amnesty already have begun taking effect, and the federal government is preparing to hired thousands of workers to process illegal aliens under amnesty.
The goal of the case at the outset was to obtain a ruling from the Supreme Court on Obama's strategy to use notes to federal agencies, called executive memoranda, to change the law, rather than going through Congress.
Klayman has contended Obama "cannot end-run Congress based on his own 'emperor-like' actions."
"By his own admission 22 times in the past, Obama lacks the power to take this unconstitutional executive action," Klayman said. "To allow this to stand would amount to trashing our constitutional republic and set a bad precedent for future presidents."
He argued the status quo should be maintained until Congress changes the national law.
WND reported when a federal judge in Pennsylvania declared the amnesty unconstitutional.
"President Obama's unilateral legislative action violates the separation of powers provided for in the United States Constitution as well as the Take Care Clause, and therefore, is unconstitutional," said U.S. District Judge Arthur J. Schwab.
The judge noted Obama "contended that although legislation is the most appropriate course of action to solve the immigration debate, his executive action was necessary because of Congress' failure to pass legislation, acceptable to him, in this regard.
"This proposition is arbitrary and does not negate the requirement that the November 20, 2014, executive action be lawfully within the president's executive authority," the judge wrote. "It is not."
Quoting from a previous precedent, the judge said that in the "framework of our Constitution, the president's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."
"The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad," Schwab said.
The judge said Obama's contention that Congress had not worked in his time frame was largely irrelevant.
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