Court skeptical on Barack Obama immigration challenge
Arizona Sheriff Joe Arpaio contends his jail is spending millions of dollars to house illegal immigrants Obama is refusing to deport.
By Josh Gerstein
| 5/4/15 1:36 PM EDT
| Updated 5/4/15 8:21 PM EDT
A legal challenge to President Barack Obama’s executive actions on immigration faced a big hurdle at a federal appeals court Monday: The judges could not seem to figure out what good it would do the plaintiff if he won the case.
Three judges from the U.S. Court of Appeals for the D.C. Circuit spent a little over an hour hearing arguments on a lawsuit brought by Arizona Sheriff Joe Arpaio, of Maricopa County. Arpaio contends his jail is spending millions of dollars to house illegal immigrants who Obama is refusing to deport under “deferred action” policies that offer a quasi-legal status to some who came to the country illegally as children.
However, all three judges seemed dubious that ruling those programs illegal would do anything to alleviate the flow of prisoners into Arpaio’s custody or to force Obama to deport people who are already there.
“I thought your argument was: They don’t enforce the law anyway,” Judge Sri Srinivasan told Arpaio’s lawyer, Larry Klayman.
President Barack Obama is shown. | AP
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Klayman said it would be bizarre if the executive branch could escape a legal ruling on something like Obama’s deferred action programs by arguing that it is doing such a bad job of enforcing the law that it doesn’t matter.
“That’s heads I win, tails you lose — or the reverse,” protested Klayman.
Srinivasan and Judge Nina Pillard both noted that Obama’s deferred action policies exclude those with significant criminal records, which would seem to cut against the programs filling up Arpaio’s jails.
“There’s just a mismatch between that contention and the scope of the policy,” Pillard said.
“Only the most severe criminals are deported,” Klayman insisted.
Klayman, a conservative legal gadfly known for his colorful courtroom antics, was relatively restrained Monday. However, he did paint the case as a critical opportunity to restrain alleged brazen illegality on the part of the White House.
“Whether you’re a Democrat or Republican, presidents are not emperors,” Klayman declared, playing off a remark Obama made in 2013 when he was downplaying his own power on immigration.
“We have to preserve … our system of government,” Klayman implored the judges. “You’re our last line of defense.”
Arguing for the Obama administration, Justice Department lawyer Beth Brinkmann did not concede that officials are deliberately underenforcing immigration laws. Instead, she said the new policies are an effort at setting priorities for using the limited resources Congress has allocated for deportations.
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“The past six years of removals have been a numerical high,” Brinkmann said, referring to a volume of deportations that has angered Latino activists and other immigrant advocates. She said the deferred action policies are legitimate and routine uses of “prosecutorial discretion” to decide who should be put into deportation proceedings and who should not.
Brinkmann also said Arpaio’s case was based on an “implausible and incoherent theory” that the Obama orders were causing harm to the coffers of Maricopa County when there was no reason to think that’s so.
Judge Janice Rogers Brown seemed most receptive to Klayman’s arguments, though she did not lean solidly in his direction. She pointed to a 2007 case in which the Supreme Court ruled that Massachusetts could sue the federal government over greenhouse-gas regulation because the state’s territory was allegedly threatened.
“Isn’t concern about public safety [problems arising from illegal immigration] at least equal to sea level rise taking a few inches off the shoreline?” Brown asked.
Brinkmann said the environmental and immigration cases were not comparable, and she warned that allowing Arpaio’s suit to go forward would allow almost anyone to go to court and claim harm from the government’s actions in someone else’s immigration case.
Brown also cited, approvingly, a ruling that Texas-based U.S. District Court Judge Andrew Hanen issued in February. She noted that he found the Obama actions were not just prosecutor-like decisions not to pursue certain groups of illegal immigrants but actually conferred valuable benefits on them, like work permits.
Brown called it “not persuasive” to argue that “we can’t do what the statute says because we don’t enough money, but we can do the opposite of what the statute says.”
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At the end of the hour, it appeared unlikely that the D.C. Circuit panel would overturn U.S. District Court Judge Beryl Howell’s ruling last December tossing out Arpaio’s suit on standing grounds.
Srinivasan and Pillard, both Obama appointees, seemed to lean against Arpaio on the standing issue. Brown, a George W. Bush appointee, was harder to read.
Even a worst-case outcome for the government at the D.C. Circuit on the current appeal would be unlikely to result in an immediate ruling that Obama’s deferred action programs are illegal. If the court rules for Arpaio, the case would likely return to the district court to be developed further.
A parallel lawsuit backed by 26 states has already succeeded in putting the latest round of Obama’s immigration actions on hold. In his February ruling, Hanen blocked the administration from moving forward with two plans announced last November: an expansion of the Deferred Action for Childhood Arrivals program and a new program called Deferred Action for Parents of Americans.
The 5th U.S. Circuit Court of Appeals is expected to rule any day on the Obama administration’s request to allow those programs to go forward while the courts consider the administration’s appeal of Hanen’s injunction. Either side could then turn to the Supreme Court for emergency relief.
The administration is eager to get Obama’s latest round of executive actions underway because they could involve processing millions of applications, and it’s unclear whether that can be done in an orderly fashion if the legal fight over the efforts blocks them from getting started until next year — Obama’s final full year in office.
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http://www.politico.com/story/2015/05/obama-immigration-action-challenge-appeals-court-117604.html#ixzz3ZGGd2kIN
