I filed a lawsuit Thursday night against President Barack Obama on behalf of Maricopa County Sheriff Joe Arpaio, to oppose Obama’s unilateral grant of amnesty. The damaging impact of illegal immigration upon Sheriff Arpaio’s community and the burden on his law enforcement resources, as with other border states, have been extensively reported for years.
Everyone is asking what comes next. Well, we at Freedom Watch are asking for a court injunction to block implementation of Obama’s “executive action,” pending review. Right now, news reports of Obama’s speech throughout Mexico, Central America and South America are suggesting that anyone can illegally enter the United States and then get a job here. Not really understanding U.S. law, reporters will lose the details in translation. Sheriff Arpaio’s community will be swamped with a flood of new arrivals, regardless of whether or not they qualify.
Within hours of his speech, Obama sent out fundraising emails asking for $1,000 donations to his Organizing for Action PAC. At Obama’s direction, Secretary of Homeland Security Jeh Johnson issued memorandum orders that about 5 million illegal aliens be granted the right to stay and work legally in the United States. Johnson’s orders are posted at the agency’s website. These illegal aliens will now outrageously receive Employment Authorization Cards the same as legal immigrants.
Sheriff Arpaio explained: “This unconstitutional act by the president will have a serious detrimental impact on my carrying out the duties and responsibilities for which I am charged as sheriff. Specifically, it will severely strain our resources, both in manpower and financially, necessary to protect the citizens I was elected to serve.”
What Obama calls “executive action” is sparking a brushfire among other law enforcement officials as well. Sheriff Scott Jones of Sacramento County released a video statement highlighting the tragic murders of Sacramento Sheriff Deputy Danny Oliver and Placer County Sheriff Detective Michael Davis Jr. by an illegal immigrant suspect who had been removed from the U.S. and had returned repeatedly across the porous border. Other sheriffs issued warnings. Don Rosenberg, whose son Drew was killed by an illegal alien, asked with irony if Obama would issue an executive order to bring his son back to life. This helpful support by the other sheriffs aside, as usual, it was Sheriff Arpaio who had the courage and guts to fire the first legal shot. The man is a hero among heroes.
Obama is claiming legal authority based on prosecutorial discretion. That is, Congress has failed to give the Executive Branch the resources to fully enforce the law, so the government must prioritize which categories of illegal aliens it will deport. The focus is on deporting “felons, not families.”
Among the many problems with this: Sheriff Arpaio has arrested 4,000 illegal aliens for committing non-immigration crimes in Arizona. When Sheriff Joe asks Immigration and Customs Enforcement to come and get them, they often refuse. When ICE does take custody of illegal aliens, Arpaio has been forced to re-arrest over 36 percent for new crimes. The Obama administration is really not interested in enforcing immigration law at all. It helps Obama and his leftist-Democrat minions politically to pander to these illegal aliens.
A second problem is that Obama’s “executive action” is clearly legislating, because it sets up a system covering broad categories with detailed requirements. It confers benefits like the right to work. A decision not to prosecute applies to an “adjudication” of an individual defendant. Creating rules for broad categories is legislating. Prosecutorial discretion is adjudicatory, that is, deciding particular cases one by one.
Third, the Executive Branch has not asked Congress for more resources. Each year, the budget process legally compels government agencies to tell Congress what they will need.
The government has not used the other tools Congress provided. The government has not enforced the prohibition on employers hiring illegal aliens, even though fines would probably cover the costs of enforcement.
The Secure Fence Act of 2006 required an additional 700 miles of double-layer fence and operational control of the border within 18 months. Largely because of “designed to fail” bad planning, that hasn’t happened.
Obviously, a law must pass both houses of Congress before being presented to the president. Even the Department of Homeland Security’s website admits that Obama’s 2012 DACA was “unprecedented.”
The U.S. Supreme Court has struck down actions as unconstitutional because they violate the inherent structure of the Constitution. In INS v. Chadha, 462 U.S. 919 (1983), the high court found a legislative veto of Executive Branch actions unconstitutional. That offended the constitutional design that Congress enacts laws and then sends them to the president.
In Train v. City of New York, 420 U.S. 35 (1975), the Supreme Court ruled that President Nixon had to spend all of the money Congress appropriates in each budgetary category. The Court observed, “The president cannot frustrate the will of Congress by killing a program through impoundment.” The Court overturned a longstanding practice in which a president would “impound” (return to the Treasury) some of the funds Congress appropriated.
One can’t resist noting that on Oct. 2, 2014, we at Freedom Watch petitioned the Department of Homeland Security to deport Barack Hussein Obama, due to his use of falsified identity documents. Perhaps Obama has a personal soft spot for not wanting the United States to deport people not legally in the country. Freedom Watch calls for all illegal aliens to be returned to their country of birth, including Obama. To view the complaint I filed on behalf of Sheriff Arpaio, go to freedomwatchusa.org.
Media wishing to interview Larry Klayman, please contact [email protected].