A lawyer representing Sheriff Joe Arpaio of Maricopa County, Arizona, in his precedent-setting lawsuit against President Obama’s immigration executive actions is asking the Supreme Court to reconsider its decision not to hear his case while accepting a similar case brought by Texas and 25 other states.
The motion submitted to the Supreme Court argues the justices are violating their own past practice and evaluating Arpaio’s case based on personal rather than legal reasons.
Attorney Larry Klayman of Freedom Watch wrote the petition that the granting of a hearing in the states’ case but not in Arpaio’s is “in conflict with this court’s well-established practice of relying upon conflicts among the circuits to better inform this court’s considerations – creates the appearance that the court is evaluating and passing judgment upon the parties rather than the legal issues which parties bring before the courts.”
“Indeed, this has already been the message of public commentary. The court gives the impression that it merely disfavors a party before the federal courts, lawfully elected sheriff of one of the nation’s largest counties at four million residents, larger than 22 states, Sheriff Arpaio and/or his legal counsel.”
Arpaio’s case was the first to challenge Obama’s executive actions allowing an estimated 5 millions illegal aliens to remain in the United States.
Arpaio argues that as a sheriff of a county near the Mexican border, his constituents would be adversely impacted by the illegal aliens.
In the Texas case, which was filed two weeks after Arpaio’s case, an appeals court affirmed an injunction against Obama’s actions, prompting the Obama administration to lobby the Supreme Court for review, which it now has promised.
The rehearing request said: “This court cannot be completely and thoroughly briefed and cannot properly consider that appeal without contrasting the treatment of the exact same government programs and legal issues between the Fifth Circuit … and the U.S. Court of Appeals for the District of Columbia.”
Klayman argues Arpaio’s case “has consistently broken new ground on this topic and now briefs the court on additional legal issues, concerns, and precedents which are lacking in the [states’ case].”
“For example, Sheriff Arpaio challenges both the government’s June 2012 Deferred Action for Childhood Arrivals (‘DACA’) program covering an estimated 1 to 1.5 million illegal aliens, as well as the government’s November 20, 2014, expansion of deferred action covering an estimated 4.7 to 5 million additional illegal aliens. Because both arise from the same legal concepts, the petitioner contends that logically and as a matter of substance any court needs to consider both to fully understand the legal analysis.”
The administration says the illegals must stay because Congress has failed to allocate money for their removal.
But Arpaio’s case pointedly notes how the executive agencies under Obama “received more funding each year from Congress than they asked for over the last decade,” “have never asked for more funding” and “are falsely assuming as deceptive sophistry that all illegal aliens must be deported in a single fiscal year.”
Among the important issues that likely would be unaddressed without adding the Arpaio case to the arguments are standing, jurisdiction and the “take care” clause, he wrote.
“Our Founding Father and second President John Adams declared just days before signing the Declaration of Independence in the undersigned’s native city of Philadelphia that we were to be a nation of laws and not men. Thus, Sheriff Arpaio’s case should respectfully be considered on the merits and certiorari granted in the interests of justice as set forth above, without regard to his very unfair vilification by certain politically motivated persons and press organizations. … For his views and actions to combat illegal immigration.”
Analysts say the case could result in a new balance of power between the president and Congress. Obama has concluded on multiple occasions that he must arbitrarily act because Congress has failed to do what he wants.
His critics have said that regarding immigration, he is not merely exercising ordinary discretion in deciding to exempt millions from the law, but is setting aside the law of Congress.
“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 non-enforcement of the immigration laws,” wrote Judge Janice Rogers Brown at the time.
She said that while precedent requires the appeals court to uphold the dismissal of the case, “I write separately to … note the consequences of our modern obsession with a myopic and constrained notion of standing.”
She explained that “what the government views as permissible prosecutorial discretion, Sheriff Arpaio views as a violation of the president’s duty to ‘take care that the laws be faithfully executed’ … and the non-delegation doctrine.”
His concerns, Brown wrote, “run deeper than a difference in philosophy or politics.”
“He claims [Obama’s amnesty orders] impose clear and ‘severe’ harms on his ability to protect the people of Maricopa County. In particular, he argues that deferring removal proceedings and providing work authorizations to undocumented immigrants ‘harmed … his office’s finances, workload and interfered with the conduct of his duties.'”
Brown said it’s logical for the sheriff to believe he has a case. But Brown concluded the case had to be dismissed because of precedent, even though “the relevant judicial guideposts do not exactly ‘define standing ‘with complete consistency.”
“And some cases suggest standing can be satisfied based on fairly ephemeral injuries and attenuated theories of causation.”
Brown said court precedents would describe as “overly speculative” claims of links between an amnesty program-inspired “flood of immigration” and an increase in crime by illegal aliens.
But she turned sarcastic in that comparison.
“Of course, the link may be no more attenuated than that connecting a potential twenty-centimeter rise in sea level with greenhouse gas emissions from new vehicles.”
She concluded: “Today’s holding puts the consequences of our standing jurisprudence in stark relief. If an elected sheriff responsible for the security of a county with a population larger than 21 states cannot bring suit, individual litigants will find it even more difficult to bring similar challenges.”
Even Obama has admitted the Constitution barred him from acting alone.
Former House Speaker John Boehner listed 22 times when Obama has made such statements.
For example, in October 2010, Obama said: “I am president, I am not king. I can’t do these things just by myself. … I’ve got to have some partners to do it. … If Congress has laws on the books that says that people who are here who are not documented have to be deported, then I can exercise some flexibility in terms of where we deploy our resources, to focus on people who are really causing problems as opposed to families who are just trying to work and support themselves. But there’s a limit to the discretion that I can show because I am obliged to execute the law. … I can’t just make the laws up by myself.”
The Texas case marked the second time federal courts have ruled against Obama’s amnesty actions. WND reported the ruling of a federal court in Pennsylvania.
“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.”