The Obama administration plans to appeal to the U.S. Supreme Court a 5th Circuit Court of Appeals ruling that the Constitution does not allow the president to change laws passed by Congress.
In a case brought by Texas and 25 other states, Obama is defending an executive decision to allow up to 5 million illegal aliens to remain in the country.
The taxpayers of Maricopa County have been hit with an extra $9 million in expenses to house inmates who should have been deported. The costs are rising, so the sheriff challenged the president’s decision to grant even more illegal aliens permission to remain in the U.S.
The D.C. Circuit Court of Appeals earlier threw out the case on an issue of standing, despite one judge’s alarm over the situation and her call 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.
“I write separately to … note the consequences of our modern obsession with a myopic and constrained notion of standing.”
She said that while the government may call it “prosecutorial discretion,” Arpaio, views it “as a violation of the president’s duty to ‘take care that the laws be faithfully executed’ … and the non-delegation doctrine.”
Rogers noted: “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. 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.”
The new petition to the Supreme Court cites her comments and asks bluntly whether Obama’s changes in the immigration laws “are an unconstitutional usurpation of legislative authority vested in the Congress and an attempt by the executive branch to repeal legislation enacted by Congress.”
In a WND commentary, Klayman explained the significance.
“In essence, we are asking the high court to resolve conflicting approaches among the nation’s appellate court circuits. We are reminding the justices that America’s system of law and order and our nation’s experiment in self-government (unique in human history) cannot long survive if the judiciary refuses to play its part by upholding the Constitution.
“The Constitution can only have meaning if we are disciplined to live by it, even when politicians are tempted to cheat. If neither the courts nor elected politicians will protect and defend – and follow – the Constitution, they leave every door closed for a peaceable resolution of our citizens’ refusal to stand by and watch our country slowly die.”
He noted that even while he was working on the appeal petition, a leaked memorandum from DHS “outlined plans for new executive-action usurpations of the role of Congress – which bypasses even the federal court in Texas that ordered Obama and his minions at DHS to cease and desist from implementing his illegal executive amnesty.”
In the Texas case, brought by 26 states, Judge Andrew Hanen found that Obama’s arguments likely would fail constitutionally, and he issued an injunction preventing implementation of the amnesty. The appeals court affirmed the decision, prompting the Obama administration to promise to take the case to the Supreme Court.
In the petition, Klayman wrote, “The executive branch respondents seek to nullify and/or repeal statutes enacted by Congress – sections of the Immigration and Naturalization Act of 1952 (as amended) … by executive memoranda issued by the Secretary of Homeland Security on orders of President Obama.
“The gravamen of these programs is to cancel through unilateral executive memoranda statutes passed by the legislative branch.”
He cited the 2012 Deferred Action for Childhood Arrivals (DACA) and Obama’s 2014 followup – the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA – expanding that to “an estimated 4.7 to 5 million illegal aliens” more.
“The writ of certiorari needs to be issued, the law clarified, and the D.C. Circuit reversed,” Klayman wrote.
Even the U.S. Department of Justice, under Obama, has concluded that the executive “cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences. … In other words, an agency’s enforcement decisions should be consonant with, rather than contrary to, the congressional policy underlying the statutes the agency is charged with administering.”
The advisory continued, “The executive branch ordinarily cannot, as the court put it in Chaney, ‘consciously and expressly adopt … a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”
In response to Obama’s complaint that he had to act because Congress failed to pass legislation he desired, the brief points out the president is responsible under the Constitution for recommending laws and vetoing laws he opposes.
“The respondents’ deferred action programs threaten the very existence of our constitutional republic, the rule of law, and constitutional government,” Klayman said.
Klayman said the opposite results from the two appeals courts warrant a Supreme Court review.
“This case is of huge importance to the rule of law. In the age of King George III, he ruled by fiat, causing a revolution and the founding of a new, free nation. Almost 230 years later, another would-be king has usurped the power of the people, and this must not be allowed to stand. Sheriff Arpaio and I, and all law abiding Americans, look to the U.S. Supreme Court to reestablish the constitutional republic, not just with regard to the enforcement of immigration laws but also to set an example that the president of the United States, be he or she Democrat or Republican, is not above the law,” Klayman said.
When the D.C. appeals court ruled, WND reported 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 its statements, has been openly defiant of the ruling from Hanen, which was affirmed on appeal.
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.
Former House Speaker John Boehner had 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.”
Hanen’s ruling actually marked 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.”