Next amnesty ruling: Is it constitutional?
Sheriff Joe's case pending before appellate court in Washington
Published: 1 day ago
Bob Unruh
President Obama’s executive action to delay deportation for millions of illegal aliens has been halted by a federal judge in Texas, based on the Administrative Procedures Act, but the core question of the constitutionality of a president ordering de facto amnesty remains unresolved.
That’s according to attorney Larry Klayman, founder of Freedom Watch, who is representing Maricopa County, Arizona, Sheriff Joe Arpaio in a case that raised the same issues.
The Arpaio case, filed in Washington earlier, was dismissed by U.S. District Judge Beryl Howell, who thought the dispute over whether a president can arbitrarily change federal laws was a political matter between branches of government.
The case now is pending before the U.S. Court of Appeals for the District of Columbia Circuit, and the government’s arguments are due in about two weeks on an accelerated scheduled imposed by the court.
Then Klayman’s response will be filed and a decision will be made.
This week, WND broke the story that U.S. District Judge Andrew Hanen in Texas granted a preliminary injunction that prevents the government from enforcing Obama’s orders. Contrary to popular perception, the order to delay deportation was not an executive order by the president. Instead, it was a memorandum issued by Department of Homeland Security Secretary Jeh Johnson at Obama’s direction.
The judge said the administration failed to follow the Administrative Procedures Act in imposing the changes in the law, and a trial would need to be held.
The White House already has said it will appeal, but it is unclear whether the 5th Circuit would overrule Hanen or not. If it does not, Hanen’s ruling could stand until a determination from the U.S. Supreme Court.
An analysis of Hanen’s ruling by David Ingram and Mica Rosenberg published by Reuters noted that Hanen specifically “avoided diving into sweeping constitutional questions or tackling presidential powers head-on.”
“In the near term, the narrow approach allowed Hanen to issue a temporary injunction barring federal agencies from putting Obama’s plans into place… Hanen’s ruling turned on the Administrative Procedure Act’s requirement that a proposed rule or regulation appear in the Federal Register so people have a chance to comment.”
Hanen’s ruling also confirmed WND’s report that Obama never signed an amnesty order and it didn’t appear in the Federal Register.
Hanen specifically found, “Both sides agree that the president in his official capacity has not directly instituted any program at issue in this case.”
In granting the injunction to the 26 states, led by Texas, that brought the lawsuit, Hanen made clear that the DHS memorandum signed by Johnson was unconstitutional.
DHS does not have the authority to defer the deportation of more than 4 million foreigners who entered the U.S. illegally or overstayed their visas, the judge said.
“The DHS was not given any ‘discretion by law’ to give 4.3 million removable aliens what the DHS itself labels as ‘legal presence,’” Hanen concluded.
“In fact, the law mandates that these illegally present individuals be removed. The DHS has adopted a new rule that substantially changes both the status and employability of millions. These changes go beyond mere enforcement or even non-enforcement of this nation’s immigration scheme.”
Klayman not only filed an amicus brief in the Texas case, he also won, just a few months ago, a federal court judgment against the National Security Agency’s spy-on-Americans plan. The judge in that case, focusing on the collection of telephone metadata, said the program likely is unconstitutional, and he ordered the government to stop it. But he stayed his order pending review by the appeals court.
Klayman said the Arpaio case before the Washington court should bring a determination on that issue of constitutionality.
The question, he said, is “whether the president’s executive actions can fly in the face of and override law that was enacted by Congress.”
He noted the Constitution calls for the president to execute the law, not make it, a responsibility that rests with Congress.
Obama himself has stated repeatedly that he does not have the authority to do what he did.
House Speaker John Boehner has listed online 22 times when Obama has made such statements.
For example, in October 2010, he 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.”
Klayman said the opinion was based on an analysis by the Department of Justice. But then when Obama changed his mind about making up laws, the DOJ delivered an opinion supporting him.
Before the appellate judges, Arpaio’s case argues Howell’s decision was based on politics.
“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 wrote. “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.
“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 plan to change the law simply by writing executive memos isn’t legal, he said.
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 hire thousands of workers to process illegal aliens under amnesty.
WND also reported earlier 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.
Hanen’s order 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.”
The outline of plans was “set out in the Secretary of Homeland Security Jeh Johnson’s memorandum dated November 20, 2014.”
The injunction is until “a final resolution of the merits of this case or until a further order of this court, the United States Court of Appeals for the Fifth Circuit or the United States Supreme Court,” the judge ordered.
WND reported the significance of the case, which was brought by 26 states against the federal government. It was predicted to go far beyond amnesty and immigration.
The case will determine whether or not the United States can be run by a president and his decrees, or by a chief elected official who enforces the laws Congress writes, according to Mark Krikorian, executive director of the Center for Immigration Studies.
“If I were a Republican politician, I wouldn’t even be arguing this on the basis of immigration,” he told WND in an interview. “I would be talking about this as just the latest and most egregious example of a president’s rule by decree.”
He said the dispute, which could extend into the 2016 presidential election, is going to decide “the balance of powers, whether Congress actually makes law or is an advisory body like the U.N. General Assembly, which is how Obama sees it.”
Obama also has made numerous arbitrary changes to the Obamacare law, without a decision by Congress, which originally wrote the law.
http://www.wnd.com/2015/02/next-amne...onstitutional/
