An appeals court has affirmed the dismissal of Sheriff Joe Arpaio's lawsuit against the Obama administration over his amnesty-by-executive-order plan because the District of Columbia Court of Appeals determined he didn't have "standing" to bring a complaint.
That is, he couldn't identify a specific and personal injury that he would suffer because of the amnesty.
But one judge said it's time for changes.
"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.
She said 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 "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] 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 wrote that 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."
She pointed out that the opinion only concludes that "general conditions" do not support a lawsuit.
"Our decision holds only that Sheriff Arpaio lacks standing … not that [amnesty] programs are categorically shielded from suit," she wrote. And, she said, "Today's decision does not take issue with the claim that unlawful immigration carries consequences."
"Our jurisprudence on standing has many shortcomings," she said.
"By prohibiting abstract, general claims, the doctrine aims to ensure that the president's 'most important constitutional duty, to 'take care that the laws be faithfully executed'' is not transferred to the courts," she wrote. "But what if the chief executive decides not to faithfully execute the laws?
"In that case our doctrine falls silent. Paying a nominal filing fee guarantees access to the federal courts, but challenge the executive's decision to undermine the rule of law and you will likely find your fee wasted."
Attorney Larry Klayman of Freedom Watch said the case will be appealed, and may end up providing a conduit for the Supreme Court to clarify the issue of standing.
He said he would forgo asking the circuit court for a hearing en banc, and move directly to the Supremes now.
He also pointed out that Arpaio hardly "lost" in the case. After all, he's joined a Texas case as amicus in which another federal judge already has enjoined Obama's amnesty orders.
That case, brought by 26 states, now is pending before the 5th Circuit Court of Appeals.
In fact, WND reported only days ago that judge, Andrew S. Hanen issued an order that he wants the federal government in full compliance of his orders before a hearing next week.
"The court does not consider mere substantial compliance, after an order has been in place for six months, to be acceptable and neither should counsel," Hanen wrote in his newest order in a case brought by 26 states.
Hanen's injunction, issued last winter, disrupted Obama's plan to delay deportation for up to 5 million illegal aliens under a 2014 initiative called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA.
DAPA would offer three-year work permits to illegal aliens who have been in the United States since 2010 and have children who are American citizens or lawful permanent residents. The Obama administration, in compliance with Hanen's order, apparently hasn't enacted that provision. But when the federal government began carrying out a DAPA provision that changes a 2012 program called Deferred Action for Childhood Arrivals, Hanen reacted. The provision extends a two-year reprieve on deportation to three years, and federal government lawyers granted the extra year to 100,000 applicants, prompting a rebuke from Hanen.
Hanen's new order released "individual defendants," including Department of Homeland Security Secretary Jeh Johnson, from an order to testify, but he said he still has concerns about illegal aliens who have "credentials issued in violation of the court's injunction."
The government "needs to be prepared to discuss the reasons that these individuals are not in compliance," Hanen ordered, "the steps the government has taken and will continue to take to achieve complete compliance and the time table to achieve that goal in the very near future."
It was Feb. 16 when Hanen granted a preliminary injunction to the 26 states that sued Obama for changing immigration law through executive action rather than by proposing legislation to Congress.
Government attorneys now are attempting to satisfy the judge, explaining they are trying to fetch the documents they issued that were in violation of his order.
The change in attitude is in sharp contrast to previous reactions from the administration.
Shortly after the judge's order, the Washington Times reported Cecilia Munoz, White House domestic policy director, addressed the issue: "It's important to put [Hanen's order] in context, because the broader executive actions are moving forward. The administration continues to implement the portions of the actions that the president and the Department of Homeland Security took, which were not affected by the court's ruling."
But Hanen's original order had said: "The United States of America, its departments, agencies, officers, agents and employees and Jeh Johnson, secretary of the Department of Homeland Security; R. Gil Kerlikowske, commissioner of United States customs and Border Protection; Ronald D. Vitiello, deputy chief of United States Border Patrol, United States Customs and Border Protection; Thomas S. Winkowski, acting director of United States Immigration and Customs Enforcement; and Leon Rodriguez, director of United States Citizenship and Immigration Services are hereby enjoined from implementing any and all aspects or phases of the Deferred Action for Parents of Americans and Lawful Permanent Residents."
And even Obama himself said the Constitution barred him from acting alone.
House Speaker John Boehner has 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."
'Unilateral legislative action'
Hanen's ruling marks 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."
Hanen had told the administration officials to show up in his court after discovering they had gone ahead with the immigration program despite his order.
The judge wrote: "The court was first apprised by the government of the violations of its injunction on May 7, 2015. It admitted that it violated this court’s injunction on at least 2,000 occasions – violations which have not yet been fixed. This court has expressed its willingness to believe that these actions were accidental and not done purposefully to violate this court’s order. Nevertheless, it is shocked and surprised at the cavalier attitude the government has taken with regard to its 'efforts' to rectify this situation. The government promised this court on May 7, 2015, that 'immediate steps' were being taken to remedy the violations of the injunction. Yet, as of June 23, 2015 – some six weeks after making that representation – the situation had not been rectified."
He warned, "At some point, when a non-compliant party refuses to bring its conduct into compliance, one must conclude that the conduct is not accidental, but deliberate."