Sheriff Joe Arpaio of Maricopa County, Arizona, is asking an appeals court in Washington, D.C., to rein in the massive power that would be granted to President Obama and future presidents if a lower court’s decision stands.
The ruling threw out a legal challenge to Obama’s executive-memo driven amnesty program for millions of illegal aliens, despite the fact that amnesty was rejected by Congress and the plan would contradict state law.
Arpaio, represented by attorney Larry Klayman of Freedom Watch, is asking the U.S. Court of Appeals for the District of Columbia to step into the case thrown out earlier by Judge Beryl Howell.
Arpaio contends the administration’s claim that “prosecutorial discretion” allows Obama to promise the benefits of citizenship to millions of illegal aliens is wrong.
“What is to stop a future president from simply directing the Internal Revenue Service to stop collecting taxes on capital gains or stop collecting income taxes above a rate lower than set by Congress?” asked a reply brief and request for oral argument filed Monday.
“Indeed, who would have standing to challenge taxes left uncollected from another person? What is to stop a future president from refusing to enforce environmental laws, labor union protections, securities laws, voting rights laws, or civil rights laws, on a claim of prosecutorial discretion?
“May a future president direct the IRS not to collect the penalty supporting Obamacare’s ‘individual mandate,’ producing actuarial collapse?”
“Appellees ask this court to endorse this power grab. Constitutional government in the United States would end in all but name. Any future president may ignore the law claiming ‘prosecutorial discretion’ wholesale.”
The brief contends that the issue is not a “policy dispute” as the government claims.
“The executive branch seeks to raise its own ‘policies’ above congressional statutes. Executive branch policies are not the ‘supreme law of the land’ as congressional enactments are.”
The brief also notes that in a similar case, U.S. District Judge Andrew Hanen already has issued a preliminary injunction halting Obama’s executive amnesty, because the administration failed to follow the Administrative Procedures Act.
Hanen now has ordered the Obama administration to be in his courtroom later this week to explain why the administration apparently is not abiding by his preliminary injunction.
Arpaio’s case aims for a ruling that the president’s actions are unconstitutional.
He argues that while the power to execute laws, residing in the executive branch, includes the ability to resolve questions, “it does not include unilateral implementation of legislative policies.”
The president must “take care that the laws be faithfully executed” and not take executive action to create laws, he points out.
Klayman earlier told the appeals court that, according to the Office of Legal Counsel, Obama didn’t have the authority to order amnesty.
That agency concluded, “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,” Klayman has argued.
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.
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 also 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.”