Shortly before the Christmas holiday began, a Federal District Court Judge in Washington, D.C. tossed out a lawsuit filed by Maricopa County, Arizona Sheriff Joe Arpaio over President Obama’s recently announced changes to deportation policies:
President Barack Obama’s executive actions on immigration survived their first major court test Tuesday, when a federal judge tossed out a lawsuit claiming the president exceeded his constitutional power.
U.S. District Judge Beryl Howell dismissed a challenge brought by Arizona Sheriff Joe Arpaio and backed by conservative legal activist Larry Klayman. Howell ruled that Arpaio had not shown the direct harm from Obama’s actions needed to institute a lawsuit in the federal courts.
“The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury — not to engage in policymaking better left to the political branches,” Howell wrote in an opinion filed Tuesday night. “The plaintiff’s case raises important questions regarding the impact of illegal immigration on this Nation, but the questions amount to generalized grievances which are not proper for the Judiciary to address.”
The ruling came just one day after Klayman, Arpaio’s lawyer, presented a colorful argument laced with political barbs at a hearing that extended to more than an hour. During the session, Howell — an Obama appointee — shot several quizzical looks at the well-known lawyer and made a series of pointed remarks suggesting she was highly skeptical of his arguments.
The lawsuit challenged a policy Obama implemented in 2012 deferring deportation of individuals brought to the U.S. illegally as children, as well as two moves the administration announced last month: expanding that program and instituting a broader deferred deportation program for illegal-immigrant parents of U.S. citizens. Both programs will soon carry the possibility of three-year reprieves from deportation, along with work permits.
White House spokesman Eric Schultz hailed the judge’s ruling.
“Judge Howell’s decision today confirms what the Department of Justice and scholars throughout the country have been saying all along: the President’s executive actions on immigration are lawful,” Schultz said in a statement. “The Supreme Court and Congress have made clear that federal officials can set priorities in enforcing our immigration laws, and the actions announced by the President are consistent with those taken by administrations of both parties for the last half century.”
Arpaio and Klayman immediately appealed the ruling to the U.S. Court of Appeals for the D.C. Circuit.
“It’s a weak decision,” Klayman said in an interview late Tuesday. “We’re confident that we’ll win in the end.”
In striking down the lawsuit, Judge Howell hit upon many of the themes that are likely to be an issue in other similar litigation going forward:
In her 33-page ruling Tuesday, Howell concluded that Arpaio’s suit failed on several grounds, including showing a “particularized” harm and demonstrating that the judge had the power to redress whatever problems Obama’s policy changes were creating for the sheriff.
Howell said Arpaio’s central argument — that his county was incurring greater costs due to the Obama immigration actions — might well be flawed.
“Contrary to the plaintiff’s assertion that a consequence of the challenged programs will be an increase in illegal conduct by undocumented immigrants and an increase in costs to the Maricopa County Sheriff’s office, these programs may have the opposite effect,” the judge wrote.
The deferred action programs are designed to incorporate the Department of Homeland Security’s enforcement priorities “and better focus federal enforcement on removing undocumented immigrants committing felonies and serious misdemeanor crimes,” she wrote. “Since the undocumented immigrants engaging in criminal activity are the cause of the injuries complained about by the plaintiff, the more focused federal effort to remove these individuals may end up helping, rather than exacerbating the harm to, the plaintiff.”
Howell also said it was difficult to predict the actions of immigrants and to establish the connection between those actions and Obama’s immigration policy changes.
“The motivation for any individual to come to the United States (or, once present here, to commit a crime in Maricopa County), does not rest solely upon the challenged deferred action programs. Such decisions are complicated and multi-faceted, involving both national and international factors,” the judge wrote.
Howell accepted the core of the Obama administration arguments for the legality of the executive actions: that they fall within the ambit of prosecutorial discretion.
“Although the challenged deferred action programs represent a large class-based program, such breadth does not push the programs over the line from the faithful execution of the law to the unconstitutional rewriting of the law for the following reason: The programs still retain provisions for meaningful case-by-case review,” she wrote. “This case-by-case decisionmaking reinforces the conclusion that the challenged programs amount only to the valid exercise of prosecutorial discretion and reflect the reality that ‘an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise.’”
This would seem to be an argument that applies not just to the arguments that Arpaio made in his lawsuit, but also to those made in the lawsuit that was filed recently by Texas and a group of other states which makes similar arguments to the ones that Arpaio makes in his lawsuit about how the policy changes allegedly increase the burdens on him and his constituents when it comes to enforcing the law. One problem with that, of course, is the fact that if the President’s policy had made the immigrants in question at least temporarily legal, then neither Arpaio nor the law enforcement agencies of any of the state’s involved in the other lawsuit really have anything to worry about. More broadly, though, as Judge Howell goes on to explain in her opinion, that simply doesn’t give rise to the kind of particularized injury necessary to give someone standing to sustain a claim in Federal Court:
Ultimately, the plaintiff’s standing argument reduces to a simple generalized grievance: A Federal policy causes his office to expend resources in a manner that he deems suboptimal.10 To accept such a broad interpretation of the injury requirement would permit nearly all state officials to challenge a host of Federal laws simply because they disagree with how many—or how few—Federal resources are brought to bear on local interests. Fortunately, the standing doctrine is not so limp. As the Supreme Court has repeatedly emphasized: “‘a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in [the] proper application of the Constitution and laws, and seeking relief that no more directly [or] tangibly benefits him than it does the public at large—does not state an Article III case or controversy.’” Lance v. Coffman, 549 U.S. 437, 439 (2007) (quoting Lujan, 504 U.S. at 573); see also Pl.’s Supp. Decl. ¶ 3 (“By this lawsuit, I am seeking to have the President and other Defendants obey the U.S. Constitution and the immigration laws . . . .”). Simply put, a state official has not suffered an injury in fact to a legally cognizable interest because a federal government program is anticipated to produce an increase in that state’s population and a concomitant increase in the need for the state’s resources. Cf. Massachusetts v. EPA, 549 U.S. 497, 520-521 (2007) (finding standing for Massachusetts because of state’s ”quasi-sovereign interests” relating to its “desire to preserve its sovereign territory” not because of the increase in state expenditures resulting from federal policy concerning global warming).
Moreover, the plaintiff’s alleged injury is largely speculative. The plaintiff argues that the challenged deferred action programs will create a “magnet” by attracting new undocumented immigrants into Maricopa County, some of whom may commit crimes under Arizona law. Pl.’s Mot. at 16-17; see also Pl.’s Mot., Ex. G, Decl. of Sheriff Joe Arpaio ¶¶ 7, 11-14, ECF No. 7-7. Yet, the decision for any individual to migrate is a complex decision with multiple factors, including factors entirely outside the United States’ control, such as social, economic and political strife in a foreign country. The plaintiff reduces this complex process to a single factor: the challenged deferred action programs.Even drawing all inferences in favor of the plaintiff, the terms of the challenged deferred action programs do not support the plaintiff’s theory. The challenged deferred action programs would have no impact on new immigrants, as the guidance defining the programs makes clear that these programs only apply to undocumented immigrants residing in the United States prior to January 1, 2010. 2014 Guidance Memorandum at 4. Thus, it is speculative that a program, which does not apply to future immigrants, will nonetheless result in immigrants crossing the border illegally into Maricopa County (and other borders of this country). The plaintiff has been unable to show that the challenged deferred action programs have interfered with his official duties as Sheriff in a manner that “is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical” and has therefore failed in his burden to establish an injury in fact. Defenders of Wildlife, 504 U.S. at 560.
As I noted above, the arguments that the states are making in their lawsuit are fairly similar to the one’s that Arpaio makes in his, right down to the allegation that the so-called “executive amnesty” would make the states law enforcement duties more difficulties by allegedly making it more likely that people will try to come to the United States illegally. As Judge Howell notes, the connection between what the President has announced and what the states fear is speculative at best and, more importantly, entirely unrelated since none of the people who come to the United States illegally at this late date, or after the new program goes into effect, would be eligible for the deportation relief that the program the President announced will provide. Thus, it’s hard to see how the lawsuit filed by the states can avoid the same fate as this lawsuit, although it’s certainly possible that the Federal Judge that will be hearing that case, which was filed in Texas rather than Washington, D.C., could rule differently than Judge Howell. In the long run, though, Federal law on this issue is exceedingly clear and it is difficult to see either the Fifth Circuit or, if it comes to that point, the Supreme Court, finding standing in that case, or this one as it makes its way through the appellate process. The only question is how long it will be before the cases are disposed of, and how Congressional Republicans will react to the inevitable outcome.
Here’s the opinion:
