Sheriff Joe Arpaio’s lawsuit challenging President Obama’s new amnesty appeared to hit snags Monday as a federal judge told the sheriff’s lawyers they will have trouble showing he is being harmed by the policy, and questioned why courts should get involved in a “legislative-executive branch squabble.”
Judge Beryl A. Howell, an Obama appointee to the federal district court in Washington, D.C., labeled Mr. Obama’s policy an amnesty, but repeatedly hinted that it’s a fight that should be settled between Congress and the White House rather than asking the federal courts to referee.
“If Congress doesn’t like it, doesn’t Congress have the power to step in?” she said, pointing to lawmakers’ power of the purse — the avenue many congressional Republicans would like to take early next year in pushing back against Mr. Obama’s policy.
The judge heard oral arguments Monday morning but did not issue a ruling, instead promising a written opinion “very shortly.”
Mr. Obama’s plan would shield most illegal immigrants from being deported and would grant proactive three-year legal status and work permits to up to 5 million of them, in addition to offering more visas for high-tech workers and speeding up legal immigration.
Sheriff Arpaio of Maricopa County, Arizona, filed a lawsuit minutes after Mr. Obama’s Nov. 20 announcement of his policy, arguing it put an unfair burden on him and seeking to have it overturned. The state of Texas has since filed another challenge, joined by about two dozen other states arguing much the same.
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Sheriff Arpaio wasn’t present in court Monday, leaving the defense to his lawyer, Larry Klayman, who said the sheriff’s department will have to spend more money on policing and holding illegal immigrants who commit crimes thanks to the president’s policy. Mr. Klayman also said the sheriff and his department have faced bomb threats over his stance on immigration.
The sheriff must show harm for him to be able to challenge the policy — otherwise the courts are supposed to throw the case out for lack of “standing” to sue.
Judge Howell seemed to question whether Mr. Obama’s policies were linked to either of Sheriff Arpaio’s claims, saying that the sheriff’s own stances on immigration are already well known, and saying that whether illegal immigrants commit more crimes likely depends on the illegal immigrants, not on the president’s policy.
“You’ve got a big standing problem,” she told Mr. Klayman.
Mr. Klayman urged the judge to act anyway, saying the case touches on issues of grand constitutional import. He predicted it will eventually end up at the Supreme Court, and challenged Judge Howell to become famous by making history with her ruling. She laughed that off.
“In this room, I think you are the most famous person, Mr. Klayman,” she said.
Hispanic rights groups mocked Sheriff Arpaio’s lawsuit, calling it unfair and an attack on Latinos.
“Today’s hearing marks another unjust, politically charged attempt to take away opportunities for many young Latinos and their families to fully contribute to society,” said Cristobal Alex, president of the Latino Victory Project.
Judge Howell balked when the administration said Mr. Obama’s program wasn’t an amnesty but rather a “temporary deferral of deportation” that they said could be rescinded at any time.
“They’re given an amnesty from being deported,” the judge countered.
For his part, Mr. Klayman tried to point the judge to last week’s ruling by another federal judge, Arthur J. Schwab in Pennsylvania, who, in a case involving a man facing deportation, ruled that the new amnesty was unconstitutional.
Judge Howell, though, called that ruling “puzzling,” saying she thought Judge Schwab, a Bush appointee, had gone beyond the facts in the case in front of him in order to rule against the policy.
“I don’t find it persuasive at all,” she said, flatly rejecting it having any bearing on her own eventual ruling.
She also appeared to accept the administration’s defense that previous presidents have granted similar proactive amnesties from deportation and work permits, albeit on a smaller scale, and said none of those had been challenged by Capitol Hill as an overreach.
“Congress has in fact sanctioned deferred removal,” she said.
Mr. Klayman urged her to act anyway.
“It doesn’t matter what Bush did in the past, or Clinton. It’s not right; it’s not legal,” he told her.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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