By Josh Gerstein
December 23, 2014
A federal judge considering a lawsuit challenging President Barack Obama’s recent executive actions on immigration gave no sign Monday that she’s prepared to block the effort through which the administration plans to offer quasi-legal status to as many as 5 million undocumented immigrants.
Judge Beryl Howell allowed conservative legal activist Larry Klayman to present more than an hour’s worth of arguments against the effort at a hearing in Washington on Monday, but her quizzical looks and pointed retorts left little doubt that the legal gadfly’s effort will come up short, at least in her courtroom.
At the conclusion of the roughly 75-minute hearing, Howell promised a ruling “very soon,” but it did not sound likely she would be granting an injunction. It also seemed possible she would grant a government motion to dismiss the case on the basis that the plaintiff wasn’t harmed enough to pursue a suit.
At one point, Howell even dismissed Klayman’s arguments as suffering from a “logical fallacy,” since the key immigration policy changes Obama announced last month haven’t kicked in yet.
The Obama administration announced last month an expansion of the 2012 program for so-called DREAMers who came to the U.S. illegally as children, as well as a new program to defer deportation of parents of U.S. citizens. Many conservatives have denounced the moves as an unconstitutional expansion of executive authority, but the Obama administration insists they are legal and in line with similar moves by past presidents.
Klayman, who filed the suit on behalf of Arizona sheriff Joe Arpaio, said the lawman is hurt by Obama’s lax immigration enforcement policies because undocumented immigrants return to jail again and again after the federal government declines to deport them.
Howell appeared convinced that Arpaio’s complaints about costs for housing illegal immigrants who have been arrested seem to stem from broader immigration enforcement concerns or from the program for DREAMers that Obama announced in 2012. The judge said she saw no indication that those harms flow from the changes the president announced in November.
Howell — an Obama appointee — also said Klayman wasn’t being precise enough about what problems Obama’s latest actions were causing to Arpaio, the Maricopa County, Arizona, sheriff.
“That just doesn’t cut it for me when you’re asking me to enjoin from the bench, with a strike of my pen, some national program,” the judge said.
Klayman called the new moves an “exacerbation” of existing problems and warned that Obama’s move could have dire consequences.
“We are a system of laws not men,” the conservative lawyer told Howell. “The precedent here is terrible. It’s trashing our Constitution.”
At one point, Klayman’s comments earned a rebuke from the judge. “Let’s not play to the gallery, here,” she warned.
The conservative gadfly predicted the case would be heading to the Supreme Court, which he said could make Howell famous.
“In this room, I think you are the most famous person, Mr. Klayman,” the judge replied.
Howell said she did not find “at all persuasive” a Pennsylvania federal judge’s ruling last week that the Obama immigration moves are unconstitutional. She noted the ruling was issued in a criminal deportation case and said repeatedly that the judge there “reached out” to address an issue not properly before him.
A potentially more dangerous case for the administration was filed earlier this month in Brownsville, Texas. In that suit, 24 states are challenging Obama’s immigration actions.
The judge assigned to that case, Andrew Hanen, is a George W. Bush appointee who has publicly questioned the administration’s immigration enforcement policies. He set a hearing Jan. 9 on the states’ request for a preliminary injunction.
Even though Howell appeared unpersuaded by Klayman, the Obama administration seems to be taking the challenge seriously, assigning Deputy Assistant Attorney General Kathleen Hartnett rather than a lower-ranking Justice Department lawyer. Last year, Klayman won the first and only injunction against the National Security Agency’s program gathering data on billions of Americans’ telephone calls.
The administration has turned to Hartnett, a former lawyer in Obama’s White House Counsel’s Office, for politically sensitive arguments, such as those in a fight between Attorney General Eric Holder and the House Oversight and Government Reform Committee relating to Operation Fast and Furious.
Asked by Howell whether the recent Obama moves amount to an “amnesty,” Hartnett said, “This does not provide legal status or a pathway to citizenship.” She said the programs simply put certain cases “to the side” while officials focus on more urgent enforcement priorities.
Hartnett also said there are numerous precedents for the Obama administration’s latest immigration actions, including a so-called “family fairness” program instituted under President George H.W. Bush. “That applied to 1.5 million people,” Hartnett said, using a figure that was referenced in congressional testimony at the time but has been widely disputed.
Amid the rhetorical flourishes, Klayman did put some substantive and even important points on the record.
Despite the government’s arguments that the most publicized immigration changes don’t kick in until February or May, the conservative activist noted that directives from Homeland Security Secretary Jeh Johnson tell law enforcement to begin now to identify immigrants in the system who may be eligible for relief under the programs and even to take the new programs into account when encountering immigrants who might have to face deportation proceedings.
Klayman also noted that the Justice Department sought and won an injunction against key parts of an Arizona anti-illegal-immigration law before it ever took effect.
In a brief, Klayman ridiculed as “phony and disingenuous” the government’s claims that it will consider as many as 5 million applications on a case-by-case basis.
Howell said that unusually pointed language “jumped off the page,” prompting Klayman to suggest a substitute.
Paraphrasing a line from the 1971 film “Bananas,” the conservative lawyer joked: “I could’ve used Woody Allen’s expression: a sham of a sham of a sham.”
For more information, go to: www.beverlyhillsimmigrationlaw.com