Federal judge upholds Obama's executive amnesty over challenge from Joe Arpaio

A bummer from D.C., especially coming so soon after a federal judge in Pennsylvania held that the amnesty was unconstitutional. Don’t fret, though. A similar lawsuit, led by incoming Texas Gov. Greg Abbott and joined by 24 different states, has already been filed in Texas with a hearing scheduled early next month. The judge in that case is a Bush appointee who’s been critical of Obama’s DHS on immigration in the past. I like those odds. Worry about losing that one, not this one, as all it’ll take is a circuit split to force this issue before the Supreme Court.

The judge in the D.C. case? An Obama appointee, of course.

Judge Howell said … that Congress has the job of setting immigration enforcement priorities and can tell the president to knock it off — if lawmakers can get a bill passed.

“Should Congress disagree with the enforcement priorities set out by DHS in the challenged policies, Congress has the ability to appropriate funds solely for removal, and the president cannot refuse to expend funds appropriated by Congress,” she wrote in her 33-page opinion, which denied Sheriff Arpaio’s request for an injunction halting the amnesty and instead threw out the lawsuit, acceding to the Obama administration’s wishes…

Judge Howell accepted the administration’s argument that the nearly 5 million applicants would be screened on a “case-by-case” basis, which she said meant it was a use of discretion, not a rewrite of the law.

Even the Obama appointee acknowledges the new Republican Congress’s ability to tie O’s hands on this, assuming they’re willing to go to the mat and force him to sign a bill with funding limitations on amnesty. As for the rest of the decision, here’s the full opinion, most of which focuses on standing. That’s a perennial legal problem for opponents of Obama’s power grabs, like suspending the employer mandate — because O’s executive actions (so far) have tended to lift legal burdens from classes of people rather than impose new ones, it’s hard for a critic-turned-plaintiff to show that he’s suffered some concrete injury from the new policy. “But he’s violating the Constitution by making law unilaterally!” isn’t concrete enough, at least according to Judge Howell. If courts conferred standing on everyone who disagreed in the abstract with a president’s interpretation of his own power, they’d be bogged down with thousands of lawsuits from partisans on the other side every time he signs something. Is it true, though, that Arpaio’s suffered no concrete injury from Obama’s new amnesty? This passage from Howell made me laugh:


If you think this isn’t going to create an incentive for more illegals to make a run for the border, you’re kidding yourself. Even if the White House sticks to the cut-off date restricting it to people who were already here by January 2010, the policy will inevitably be twisted through word of mouth and coyote propaganda to convince people in Mexico and beyond that the amnesty is ongoing. Just follow the timeline on this past summer’s border crisis to see what I mean. When, not if, there’s a new surge in illegal immigration thanks to O’s new policy (which is a feature, not a bug, for Democrats eager to import more left-leaning potential voters, of course), Arpaio will be forced to deal with it in his official capacity as sheriff. You can argue that that’s not enough for him to win his suit — if it is, it would in theory allow the states to dictate policy to the feds in court based on how inconvenienced they are by it — but let’s not be cute and pretend that the “magnet” effect is a phantom of everyone’s imagination.

The other key question here: Is Obama really exercising prosecutorial “discretion” in laying down a policy that’ll cover five million people?


If effectively legalizing five million people is “reflective of congressionally-directed priorities” now (wouldn’t Congress have literally directed that priority by passing a new law if it wanted a policy that broad?), it won’t be 10 days from now when the new Congress was sworn in. Either way, though, Howell’s logic does nothing to counter the hypothetical I’ve been using over the past month to show liberals how this precedent can be used against them. If President Cruz directs the IRS not to collect more than 10 percent of American taxpayers’ adjusted gross income, is that policy legal so long as he allows the agency “discretion” to apply the statutory tax brackets in select cases where an individual taxpayer doesn’t deserve the lower rate (e.g., if he’s underpaid his taxes in a previous year)? I’ll bet Cruz could live with that. Can lefties?

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