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Sunday, December 21, 2014

Judge to weigh stopping amnesty in its tracks

Federal court hearing on preliminary injunction scheduled Monday



A federal judge already has declared President Obama’s amnesty program is unconstitutional, and now a second member of the federal judiciary is scheduled to hold a hearing Monday on a request for a preliminary injunction that would halt it in its tracks.

U.S. District Judge Beryl Howell is scheduled to hold a hearing on a request by Maricopa County Sheriff Joe Arpaio to halt President Obama’s amnesty program while the legal arguments over its future continue. Testimony submitted to the federal court in Washington by the plaintiff points out there would be no injury from waiting, because current federal law still would be in force.
“The court should grant plaintiff’s motion and enter a preliminary injunction that, during the pendency of this suit, orders defendants to cease and desist and not initiate the plans for executive actions directed by the president to DHS and his attorney general,” explained a submission filed by attorney Larry Klayman of FreedomWatch on behalf of Arpaio.
“This will work no harm to defendants, as the status quo of existing law enacted by Congress will be preserved. It is not right or just that the president and the other defendants circumvent the will of the people in our republic, simply because they believe that the new Congress will not [toe] the line to their goals for immigration reform,” he wrote.
Howell already has sided with Arpaio in one dispute by ordering a fast track for case arguments and hearings.
Two Justice Department lawyers representing Obama in the case had asked for the deadline for their initial response to be delayed until late January. But the judge ordered it submitted immediately and then scheduled Monday’s hearing.
The reason for the request for a preliminary injunction is that Obama’s memos already have gone out. WND reported Arpaio’s complaint argues the timing is crucial, because the government already is pouring resources into meeting the orders, and the offer of amnesty likely will draw a whole new flood of illegal aliens.
The president’s decision, Klayman wrote, “orders direct DHS personnel including the Customs and Border Protection (CBP) and ICE to immediately suspend enforcement of immigration laws with regard to any who appear to be eligible for the new deferred action programs, even though such persons might not yet be able to apply for formal recognition.”
The instructions also tell law enforcement officials to “immediately” begin identifying those who could be given the special benefit.
Klayman also argued that the federal government already has leased office space and begun the process of hiring 1,000 new workers to process the illegal aliens through Obama’s amnesty program.
All of those actions would be for nothing if a court rules that the program doesn’t meet the Constitution’s requirements, he wrote.
“By contrast if the implementation is simply delayed until a court decision, there will be no such harm,” he said.
In the latest submission to the federal court, in preparation for Monday’s hearing, Klayman contended that while Justice Department attorneys have portrayed the disagreement as “an abstract policy disagreement,” it’s actually not.
“The executive branch has no legislative authority to set policy other than by employing the authority delegated to it by Congress,” the filing argues, and Obama’s moves violated the Administrative Procedures Act.
“It is not an abstract policy [dis]agreement whether the APA has been violated or followed,” he wrote. “By arguing this is merely policy disagreement, defendants confess that their actions are ultra vires, in violation of the U.S. Constitution and the underlying substantive statutes.”
The brief explained: “Defendants are compelled under law enacted by Congress to remove illegal aliens. The defendants’ unconstitutional executive actions illegally contravene current law to relieve the executive branch from the obligation imposed by congressional enactment. Therefore, enjoining the defendants’ programs would leave in place current law, under which they are indeed compelled to deport nationals of foreign countries unlawfully present in the country.”
Klayman explained that under current law, Arpaio will turn over to the DHS illegal aliens who commit crimes in his county to be deported.
“By contrast, under the defendants’ new executive actions, those persons will not be subject to deportation. Therefore, they will serve out their criminal sentences in Plaintiff Arpaio’s jails, costing his office enormous time and expense,” Klayman argued.
The ruling that the amnesty program is unconstitutional came just this week from a federal judge 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’s 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.


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